U.S. Supreme Court to Rule on FSIA and Minimum Contacts

On March 3, 2025, the United States Supreme Court will hear arguments in the cases of CC/Devas (Mauritius) Limited v. Antrix Corp. Ltd. [1], and Devas Multimedia Private Ltd. v. Antrix Corp. Ltd. [2]

The question presented to the Supreme Court is whether exercising personal jurisdiction over a foreign state under the Foreign Sovereign Immunities Act (“FSIA”) requires satisfaction of the minimum contacts. “Minimum contacts” are the constitutional standard under which the court can have jurisdiction over the defendant only if the defendant has sufficient connections with a forum state so that exercising jurisdiction does not violate due process.

So far, only the Ninth Circuit considers the satisfaction of the minimum contacts requirement as part of the prerequisites for jurisdiction under the FSIA. All other Circuits dealing with this issue rely on the explicit wording of the statue, which does not require the minimum contacts to be satisfied. Whether the Supreme Court sides with the majority—relying on the text of the FSIA, or chooses the position presented by the minority—relying on the constitutional Due Process Clause [3], we will learn later this year.

Background

The dispute arose in connection with a contract for building, launching, and operating of two satellites, as well as making the 70 MHz of S-band spectrum available for use (“Contract”). The Contract was concluded in January 2005 between Devas Multimedia Private Ltd. (“Devas”)—an Indian corporation specializing in developing and providing telecommunication services—and Antrix Corp. Ltd. (“Antrix”)—a corporation wholly owned by the Republic of India and acting as the commercial arm of the Indian Space Research Organization. The Contract included an arbitration agreement referring disputes to arbitration under ICC Rules.

In 2011, a dispute arose, when Antrix repudiated the Contract, referring to force majeure caused by the Indian government’s decision to not provide S-band spectrum for commercial use. As a result, Devas initiated arbitration proceedings seeking awards for breach of contract.

In 2015, the tribunal rendered an award in favor of Devas, finding that Antrix breached the Contract. It also awarded Devas USD 562.5 million in damages.

The award was ultimately set aside—a decision upheld by the Supreme Court of India on October 6, 2023.

District Court proceedings

In 2018, Devas initiated proceedings for the confirmation of the award in the U.S. District Court for the Western District of Washington. As Antrix remained an entity wholly owned by the Indian government, it was subject to the same immunity as afforded to foreign sovereigns [4]. Therefore, Devas had to establish that an exception to the sovereign immunity applied.

Devas relied on the arbitration exception [5].

In response, Antrix moved to dismiss the petition for lack of personal jurisdiction. Antrix argued that the minimum contacts requirement was not satisfied, and as such Antrix was protected from suit under the constitutional Due Process Clause, as the court does not have personal jurisdiction.

The district court denied Antrix’s motion to dismiss, and confirmed the award [6]. The district court observed [7] that:

For personal jurisdiction to exist in this case, it is sufficient that the arbitration exception to immunity applies and Antrix has been validly served. This was undisputed in this case.
Antrix, as a foreign sovereign within the meaning of the FSIA, was not a “person” under the Due Process Clause, and the minimum contacts requirement was inapplicable in this case.
In any case, the court considered the minimum contacts requirement as satisfied due to actions taken by Antrix in the United States. These actions included negotiations connected to the establishment of Devas, which had been conducted in the United States.

Antrix appealed this confirmation of the award.

During the appellate proceedings, Devas was subjected to liquidation by the Indian courts. This prompted Devas’s shareholders, including CC/Devas (Mauritius) Ltd., to intervene in the pending proceedings, which the courts allowed [8]. The district court allowed the shareholders to conduct post-judgment discovery to locate assets against which the award could be enforced. This led to the issuance of permission to register the district court’s judgment in the Eastern District of Virginia, where relevant assets were located.

Both Antrix and Devas appealed the order permitting registration of the judgment in Virginia.

Ninth Circuit proceedings

The United States Court of Appeals for the Ninth Circuit reversed the district court’s decisions concluding that the court did not have personal jurisdiction over Antrix [9]. The Ninth Circuit reasoned that:

The minimum contacts analysis was necessary to exercise personal jurisdiction over Antrix.
The Ninth Circuit is bound by its precedents which concluded that FSIA’s legislative history confirms that “personal jurisdiction under the [FSIA] requires satisfaction of the traditional minimum contacts standard.” As such, if defendants are not entitled to immunity under the FSIA, a court must analyze the existence of personal jurisdiction through the constitutional Due Process Clause.
It is irrelevant if a foreign state under FSIA is a person within the meaning of the Due Process Clause. This is because it is not the language of the Due Process Clause but the legislative history of the FSIA that is conclusive.
The district court also misapplied the minimum contacts requirement. Antrix’s connection to the United States as described in the district court’s judgment is insufficient to satisfy the applicable standard. The burden of proving that minimum contacts have been satisfied was on Devas, which failed to meet it.

Both Devas and its shareholders filed petitions for rehearing the case en banc. However, the court of appeals denied rehearing en banc, with seven judges dissenting [10].

Petition for a writ of certiorari

On July 3, 2024, Devas filed the petition for a writ of certiorari [11]. Earlier, on May 6, 2024, the shareholders filed their petition for a writ of certiorari [12].

In both these cases, the petitioners requested the Supreme Court to resolve whether personal jurisdiction over a foreign state under the FSIA requires satisfaction of the minimum contacts.

On October 4, 2024, the Supreme Court granted certiorari, agreeing to hear the cases. The two cases have been consolidated for the purpose of briefing and oral argument. The oral argument is set to take place on March 3, 2025.

Petitioners’ arguments

On December 4, 2024, Devas and its shareholders filed their briefs, requesting the Supreme Court to reverse the Ninth Circuit’s judgment.

In its brief [13], Devas argues that:

The FSIA does not require a showing of minimum contacts for a district court to exercise personal jurisdiction over a foreign state. The FSIA provides that personal jurisdiction “shall exist” over “every claim” where an immunity exception is established and proper service is made. The language of this provision does not support the application of the minimum contacts test, and neither do the Supreme Court’s previous opinions.
Congress intentionally designed the FSIA so that the existence of subject-matter jurisdiction results automatically in personal jurisdiction. The legislative history confirms that some exceptions may require more contacts with the United States. However, this is not the case for the arbitration exception, which is rooted in Congress’s view that when a foreign state agrees to arbitrate it waives its immunity and consents to jurisdiction for confirmation of the resulting award in the U.S. courts. The Ninth Circuit’s precedent restricts the application of the FSIA in a way not intended by Congress.
The approach of the Ninth Circuit does not align with the precedents applied in other Circuits, including the D.C., Second, Seventh, and Eleventh Circuits. These other Circuits do not require the satisfaction of minimum contacts.
The Due Process Clause is not applicable because a foreign state is not a “person” for purposes of that clause. And even if the Fifth Amendment’s Due Process Clause applied to this case, it does not impose a minimum contacts test for personal jurisdiction.

The Shareholders, in their brief [14], similarly argue that:

The language of the FSIA clearly confirms that the personal jurisdiction “shall exist” over “every claim” subject to one of the exceptions from sovereign immunity and when service is valid. The application of the minimum contacts test to personal jurisdiction under the FSIA is not supported by the statute. Neither is it supported by its legislative history.
The arbitration exception without the minimum contacts is in line with the United States’ obligations stemming from international treaties requiring the recognition of arbitral awards.
The Due Process Clause is not applicable as foreign states are not “persons” within the meaning of the Fifth Amendment. In any case, the Fifth Amendment does not require the satisfaction of the minimum contacts test.
There is no reason to apply the Constitution to foreign states as they exist entirely outside the U.S. constitutional system. The relationship with foreign sovereigns is governed by other laws.
Requiring proof of minimum contacts when not prescribed by the statute would contravene the legislative judgment of Congress not only with regard to the arbitration exception but also the terrorism exception.

Several amici curiae filed briefs supporting the Petitioners, including the United States [15].

Respondent’s arguments

On January 17, 2025, Antrix filed its brief, requesting the Supreme Court to affirm the Ninth Circuit’s judgment.

In its brief [16], Antrix argues that:

The legislative history of the FSIA proves that when it was first enacted, jurisdiction was conferred by Congress only if there was a substantial connection to the United States.
The arbitration exception also requires a meaningful connection to the United States. In particular, the arbitration agreement must concern a matter capable of arbitration under U.S. law. As such, the arbitration exception is limited to matters concerning commerce within or with the United States. This is in line with the Federal Arbitration Act and the Foreign Commerce Clause.
In any case, foreign corporations even if wholly owned by foreign states are entitled to due process under the Fifth Amendment, as they are still “persons” within the meaning of this Amendment. In any case, foreign sovereigns should be subject to the Fifth Amendment Due Process Clause. Agreeing to arbitrate a dispute is not equal to consenting to personal jurisdiction in the U.S. courts.
Alternatively, the Supreme Court should affirm the Ninth Circuit’s judgment on two other grounds—forum non conveniens or the annulment of the award by the Indian courts.

Several amici curiae filed briefs supporting Antrix, including the Republic of India [17].

Relevance

This case highlights the broader tensions between state sovereignty and international arbitration. The outcome of this case may impact the dispute resolution strategies, including the choice of enforcement jurisdictions, for parties dealing with states or state-owned entities.

If the Court upholds the Ninth Circuit’s ruling, foreign sovereigns and their entities may gain an additional defense against enforcement of arbitral awards in U.S. courts, as the claimants would be required to establish minimum contacts under the Due Process Clause. This would mark a shift in U.S. jurisprudence and create additional hurdles for award creditors seeking to enforce awards against state-owned enterprises or states.

Conversely, if the Supreme Court sides with Devas and its shareholders, it would reinforce the U.S. courts’ role as a reliable forum for enforcing arbitral awards against foreign sovereigns.

Award creditors should keep a close eye on this case, as the ruling could either streamline enforcement against foreign states in the U.S. or create new hurdles that would require rethinking arbitration strategies.

[1] CC/Devas (Mauritius) Ltd. Antrix Corp. Ltd., No. 23-1201 (U.S. cert. granted Oct. 4, 2024).

[2] Devas Multimedia Private Limited, v. Antrix Corp. Ltd., No. 24-17 (U.S. cert. granted Oct. 4, 2024).

[3] U.S. Const. amend. V.

[4] 28 U.S.C. § 1603(a)-(b).

[5] 28 U.S.C. 1605(a)(6).

[6] Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., No. 2:18-cv-01360 (W.D. Wash. Nov. 4, 2020).

[7] Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., No. 2:18-cv-01360, at 5 (W.D. Wash. Oct. 27, 2020).

[8] Devas objected to the inclusion of the shareholders as parties to the proceedings, arguing that only Devas had standing to confirm the award. The shareholders were not granted the right to substitute Devas in the proceedings.

[9] Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., Nos. 20-36024, 22-35085, 22-35103, (9th Cir. Aug. 1, 2023).

[10] Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., Nos. 20-36024, 22-35085, 22-35103, (9th Cir. Feb. 6, 2024).

[11] Petition for a Writ of Certiorari, Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., No. 24-17 (U.S. filed July 3, 2024).

[12] Petition for a Writ of Certiorari, CC/Devas (Mauritius) Ltd. v. Antrix Corp. Ltd., No. 23-1201 (U.S. filed May 6, 2024).

[13] Brief for Petitioner, Devas Multimedia Private Limited v. Antrix Corp. Ltd., Nos. 24-17, 23-120 (U.S. Dec. 4, 2024).

[14] Brief for Petitioners, CC/Devas (Mauritius) Ltd. v. Antrix Corp. Ltd., No. 23-1201 (U.S. Dec. 4, 2024).

[15] Brief for the United States as Amicus Curiae in Support of Petitioners, Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., Nos. 24-17, 23-1201 (U.S. Dec. 11, 2024).

[16] Brief for Respondent, Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., Nos. 24-17, 23-1201 (U.S. Jan. 17, 2025).

[17] Brief for the Republic of India as Amicus Curiae in Support of Respondent, Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., Nos. 24-17, 23-1201 (U.S. Jan. 24, 2025).