Milbank LLP submitted an amicus brief on behalf of the United States Council for International Business in support of petitioner Devas Limited in Supreme Court case CC/Devas (Mauritius) Limited v. Antrix Corp. Ltd, which concerns Foreign Sovereign Immunities Act’s requirements when enforcing international arbitral agreements against foreign states, agencies or instrumentalities.
The Court is reviewing a Ninth Circuit Court of Appeals decision to not enforce a $1.3 billion arbitral award against Antrix, an Indian state-owned aerospace company. The Court will decide whether, under the Foreign Sovereign Immunities Act or the US Constitution, foreign states must satisfy a minimum-contacts requirement with the United States before US federal courts can assert personal jurisdiction to enforce arbitral awards against them.
The amicus brief argues that, when dealing with foreign states, US businesses prefer international arbitration to resolve disputes and rely on US treaty obligations contained in the New York Convention, the Inter-American Convention, and the ICSID Convention, among others, to enforce arbitral awards against those foreign states. The brief also highlights that the Ninth Circuit’s decision reads an additional requirement of minimum contacts that is not contained in Section 1605(a)(6) of the FSIA. Rather, the text and legislative history of the provision focus on the foreign state’s consent to arbitration of disputes as constituting an exception to sovereign immunity. Imposing a minimum-contacts requirement would expose US companies to excessive risks and impair their ability to conduct business safely abroad as they would no longer be able to rely on US courts to enforce awards.
“The United States has a strong record of protecting US businesses and investors doing overseas deals with foreign states by enforcing international arbitration agreements. Following the Ninth Circuit’s approach would make it more difficult to hold foreign states accountable where they do not comply with adverse awards, and prevent award creditors from finding assets and executing the unpaid awards against assets of the foreign state in the US that are used for commercial activity in the US. This would put businesses and investors at risk and undermine the legal frameworks that hold foreign states accountable,” said Milbank Litigation & Arbitration partner Viren Mascarenhas.
Mr. Mascarenhas led the Milbank team, which also includes associate Peter Farag and law clerks Jordan Samaroo, Hannah Juge and Danni Luo. The USCIB team includes D. Jason File, director of legal affairs, and Fordham Law extern Sol Murgui Orsucci.
Oral arguments for CC/Devas (Mauritius) Limited v. Antrix Corp. Ltd will occur March 3, 2025. The full amicus brief is available here.
