On 12 August 2026 the United States Court of Appeals for the Ninth Circuit issued two decisions in the same case on the same day. The published opinion holds that a federal court may confirm a USD 562.5 million ICC award against a company wholly owned by the Republic of India, arising from a contract with no commercial connection to the United States. The unpublished memorandum disposition upholds the award, strips three of the four intervenors of standing to enforce the judgment, and returns to the Western District of Washington the one question that determines whether money changes hands. The arbitration began in 2011. Eleven years of enforcement litigation have removed every jurisdictional defence a sovereign could raise, and left the outcome resting on a single question that was effectively decided at the drafting table in 2005.
A policy reversal in New Delhi turns a satellite lease into an arbitration
Antrix Corp. Ltd. is wholly owned by India, describes itself as the commercial arm of the Indian Space Research Organisation, and depends on the Indian government for most of its financing and much of its leadership. On 28 January 2005 it agreed with Devas Multimedia Private Ltd., a privately held Indian company based in Bangalore, to build, launch and operate two satellites and to lease Devas 70 MHz of India's S-band spectrum for multimedia broadcasting across India. Performance ran normally for six years. Then, on 25 February 2011 and weeks before launch, Antrix terminated, communicating a decision by the Government of India not to allocate S-band capacity commercially and invoking the force majeure clause. Devas commenced ICC arbitration on 1 July 2011 under Article 20 of the agreement, before a three-member tribunal seated in New Delhi, arguing that the force majeure had been self-induced. On 14 September 2015 the tribunal held unanimously that Antrix had wrongfully repudiated and awarded USD 562.5 million plus interest.
The award survives everywhere except at the seat
Devas confirmed the award in France and the United Kingdom and petitioned the Western District of Washington in September 2018, invoking the FSIA's arbitration exception (28 U.S.C. section 1605(a)(6)). What happened in India ran in parallel and reshaped the case. In 2021 Antrix obtained an order from the National Company Law Tribunal winding up Devas for having been incorporated for a fraudulent purpose and having procured the agreement by fraud. The Supreme Court of India upheld the winding-up on 17 January 2022, and a government-appointed official took control of the award creditor. Relying on those fraud findings, the Delhi High Court set the award aside on 29 August 2022, a Division Bench affirmed on 17 March 2023, and the Supreme Court of India denied review on 6 October 2023, making the annulment final (Memorandum Disposition, note 3). The Netherlands reached the opposite result on the same facts. The Hague Court of Appeal held on 17 December 2024 that the Indian liquidation had denied Devas the chance to rebut the fraud allegations and cross-examine witnesses, declined to recognise the winding-up order, held that the liquidator's instruction to stop enforcing had no effect there, and granted leave to enforce. The Hoge Raad dismissed Antrix's cassation appeal on 6 March 2026.
That record is the case for the arbitration clause. An award against a State-owned counterparty survived annulment at its seat and was recognised or enforced in France, the United Kingdom and the Netherlands, against a sovereign that liquidated the creditor, obtained a fraud finding from its own Supreme Court, annulled the award at home and appeared as amicus in Washington. Without that clause, Devas would have had the Indian courts and nothing else.
The Ninth Circuit closes the American forum and the Supreme Court reopens it
The district court confirmed the award and entered judgment of USD 1.29 billion. Three Mauritian shareholders of Devas and its Delaware subsidiary, Devas Multimedia America, Inc. ("DMAI"), intervened and registered the judgment in the Eastern District of Virginia, where Antrix held identifiable assets. On 1 August 2023 a Ninth Circuit panel reversed the whole structure on personal jurisdiction. Bound by Thos. P. Gonzalez Corp. v. Consejo Nacional de Produccion de Costa Rica, 614 F.2d 1247 (9th Cir. 1980), it held that section 1330(b) of the FSIA requires a traditional minimum contacts analysis under International Shoe beyond the statutory immunity exceptions, and that Antrix had no suit-related contacts with the United States. That reading belonged to the Ninth Circuit alone: the D.C. Circuit had long applied the opposite rule (GSS Group Ltd. v. National Port Authority, 680 F.3d 805, 811 (D.C. Cir. 2012)), and the Sixth Circuit had rejected the premise that section 1605(a)(2)'s "direct effect" language imports International Shoe (Rote v. Zel Custom Mfg. LLC, 816 F.3d 383, 394 (6th Cir. 2016)). On 5 June 2025 a unanimous Supreme Court reversed, in an opinion by Justice Alito (605 U.S. 223). Personal jurisdiction shall exist wherever an immunity exception applies and service has been made under section 1608; the word "shall" leaves no room for discretion, and the provision says nothing about minimum contacts. Congress tied immunity and jurisdiction together, and reading an extra requirement into one of them would open a gap in a scheme built to be comprehensive (605 U.S. at 232). The Court expressly left for remand the Fifth Amendment, the scope of the arbitration exception and forum non conveniens (605 U.S. at 237). For fourteen months the sovereign had lost the statutory argument and kept the constitutional one intact.
The arbitration exception reaches disputes with no American commerce
Antrix's central remand argument was that a dispute involving purely foreign commerce lacks the nexus needed to concern a subject matter capable of settlement by arbitration under United States law. The panel rejected it on the text. Section 1605(a)(6) contains no commercial nexus requirement, and Congress imposed one expressly in the neighbouring commercial activity exception, section 1605(a)(2), read with the definition in section 1603(e); an omission in one provision of the same Act is treated as deliberate (Russello v. United States, 464 U.S. 16, 23 (1983)). The implementing legislation supplies the rest, since an action falling under the New York Convention is deemed to arise under the laws and treaties of the United States (9 U.S.C. section 203). A foreign seat, foreign governing law and no American operations now pose no obstacle, provided the losing party holds assets there.
The Fifth Amendment argument failed on the narrowest available ground. Assuming without deciding both that Antrix is a "person" protected by the Due Process Clause and that a reasonableness inquiry applies, the panel weighed the three factors used in Fuld v. Palestine Liberation Organization, 606 U.S. 1, 24 (2025), and found the exercise of jurisdiction reasonable. Both assumptions remain contestable, since several circuits hold that foreign States are not persons for due process purposes at all (Frontera Resources Azerbaijan Corp. v. State Oil Co. of the Azerbaijan Republic, 582 F.3d 393, 399 (2d Cir. 2009)). The question survives on paper. It is harder to see it surviving in fact, since a wholly State-owned entity with no contacts and no claimed hardship is close to the strongest case a sovereign could bring.
Forum non conveniens leaves the Convention, and the circuits divide by treaty
On a question of first impression in the circuit, the panel held that forum non conveniens has no application to an action to confirm a foreign award under the New York Convention. Article III makes recognition and enforcement mandatory, Article V lists the exclusive grounds for refusal, and inconvenience is not among them. Independently, the doctrine presupposes an adequate alternative forum, and only a United States court can attach a foreign sovereign's commercial property located there (28 U.S.C. sections 1609 and 1610; TMR Energy Ltd. v. State Property Fund of Ukraine, 411 F.3d 296, 303-04 (D.C. Cir. 2005)).
That alignment with the D.C. Circuit sharpens a divergence that matters most to Latin American awards. In Figueiredo Ferraz E Engenharia de Projeto Ltda. v. Republic of Peru, 665 F.3d 384 (2d Cir. 2011), the Second Circuit allowed a forum non conveniens dismissal in an enforcement action governed by the Panama Convention, reasoning from that treaty's procedural clause. The Ninth Circuit now says it finds Judge Lynch's dissent in Figueiredo more persuasive, while noting that the treaties are similar and not identical. Awards against Latin American States are routinely governed by Panama rather than New York. The same argument, on the same facts, may succeed in New York and fail in San Francisco.
A collection contract does what share ownership could not
The memorandum disposition disposes of Antrix's only Article V defence, under Article V(1)(d), holding that Article 20 never required ad hoc arbitration and that the 1998 ICC Rules, incorporated by that clause, let the ICC Court appoint an arbitrator when Antrix refused to nominate one. It then does something more consequential for structuring. The three Mauritian shareholders lose standing to register the judgment. Whether shareholders of a foreign corporation may assert its claims is governed by the law of the place of incorporation; Indian law applies, and shareholders' rights to residual assets do not vest until dissolution, which had not occurred. Civil law readers will recognise the line between the acción social and the shareholder's individual action, transposed into an American enforcement proceeding.
DMAI keeps its standing, and not because it is a subsidiary. It keeps it because a 2018 Collection Services Agreement obliges it to take all actions necessary to protect, defend and enforce the award against 30 per cent of amounts collected, and registration is a step it cannot perform that obligation without (compare Sprint Communications Co. v. APCC Services, Inc., 554 U.S. 269 (2008)). A collection mandate with an assigned economic interest generated a right to enforce that equity ownership did not. The same instrument was litigated in the Netherlands, where the Indian liquidator had tried to withdraw DMAI's authority to act.
The annulment question returns to where the case began
Antrix argued that the Indian annulment makes the award unenforceable as a matter of law. The panel declined to decide that in the first instance. Article V(1)(e) provides that recognition and enforcement may be refused where an award has been set aside, "may" is permissive and vests discretion in the district court, and the analysis is fact-intensive. Because the annulment became final while the appeal was pending, the route is a motion under Rule 60(b) before Judge Zilly.
The outcome is open and the authorities cut both ways. Under TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928 (D.C. Cir. 2007), a court owes respect to an authentic annulment judgment absent proof that the proceedings were tainted. The Second Circuit has applied that framework to this exact posture twice, vacating enforcement under Rule 60(b)(5) in Thai-Lao Lignite (Thailand) Co. v. Government of the Lao People's Democratic Republic, 864 F.3d 172 (2d Cir. 2017), and sustaining it in Corporación Mexicana de Mantenimiento Integral v. Pemex-Exploración y Producción, 832 F.3d 92 (2d Cir. 2016), where retroactive legislation had left the creditor with no forum at all. What separated them was whether the annulment left the creditor a remedy. Devas holds the strongest available version of the Pemex argument, since two levels of Dutch courts have found that the Indian proceedings failed international due process standards, and the State that annulled the award owns the debtor and controls the creditor. Against it stand a final judgment of the Supreme Court of India, a fraud finding going to the formation of the contract, no Ninth Circuit precedent authorising a departure from TermoRio, and a representation Devas made when seeking early confirmation, recorded in the panel's note 4, that the money would be returned if India ultimately rescinded the award.
Even a favourable ruling leaves work undone. Execution still requires property used for commercial activity in the United States under section 1610, and the district court has already refused nationwide registration for want of evidence of assets. Enforcement now rests with Devas, in liquidation under a government-appointed administrator, and with DMAI, whose authority derives from a contract with that same company. Antrix retains rehearing en banc and certiorari.
Taken together, these rulings make a case for arbitrating with State-owned counterparties, provided three things are settled when the contract is drafted rather than discovered when the judgment is enforced. Choose the seat on the assumption that annulment there is the defence that survives after immunity, personal jurisdiction and forum have all been lost. Settle at signature who will hold the claim and who may enforce it, because share ownership confers no right to register a judgment while a collection mandate with an assigned percentage does. And treat representations made to obtain early confirmation as permanent, because they will be read back years later by the judge deciding whether the judgment stands.