Foreign Arbitration Awards, the Foreign Sovereign Immunity Act, and Minimum Contacts

This article discusses the pending Supreme Court case CC/Devas (Mauritius) Limited, et. al v. Antrix Corp., Ltd., et al., argued on March 3, 2025. In this appeal, the Court will consider whether under the Foreign Sovereign Immunities Act plaintiffs must first prove that a defendant has sufficient minimum contacts to assert personal jurisdiction over the defendant.

           Devas, an Indian multimedia corporation won an ICC $562.5 million arbitration award against Antrix, a corporation wholly owned by India. Devas next sued Antrix in the Western District of Washington to confirm the award. Antrix moved to dismiss, arguing that the court lacked personal jurisdiction. Antrix did not contend that the court did not have personal jurisdiction under the Foreign Sovereign Immunity Act but instead contended that it was entitled to additional constitutional due process protections that required a minimum contacts analysis.

           The federal district court rejected this argument, based on decisions from the 2nd, 5th, and D.C. Circuit courts. The court held that foreign states were not “persons” under the 14th Amendment Due Process Clause, and therefore Antrix was not a person for due process purposes. All that was required in a FSIA action was that the defendant satisfy statutory personal jurisdiction under FSIA. The court entered a confirmation judgment in Devas’ favor.

           The Ninth Circuit, relying on 9th Circuit precedent reversed, holding that the district court denied Antrix due process in failing to conduct a minimum contacts analysis. See Thomas P. GonzalezCorp. v. Consejo Nacional De Produccion De Costa Rico, 614 F.2d 1247 (9th Cir. 1980). Even though a foreign state was not a “person” for 14th Amendment due process protection and a minimum contacts analysis, nonetheless Antrix was entitled to a minimum contacts analysis under the court’s reading of FSIA.

Devas’ appeal implicates the intersection of FSIA’s statutory immunity provisions and the doctrinal understanding of personal jurisdiction under the Due Process Clauses of the 5th and 14th Amendments. In the narrowest sense, the Court will determine whether Devas invoked and satisfied its burden of establishing good FSIA federal court subject matter and personal jurisdiction. This will require the Court to engage in a textual statutory construction of FSIA’s provisions relating to its immunity exceptions, subject matter jurisdiction, and conferral of personal jurisdiction. For a Court committed to strict textual readings of statutes and eschewing recourse to legislative history, Devas ought to prevail as it urges that the close statutory reading of FSIA requires reversal of the 9th Circuit’s decision.

           However, Antrix may entice the  Court into a discussion of 5th Amendment due process minimum contact requirements, regarding the assertion of personal jurisdiction over foreign entities in FSIA litigation. Here the Court will have to grapple with the 9th Circuit’s Gonzalez precedent and whether the Court is now willing to require minimum contacts analysis under the 5th as well as the 14th Amendments. If the Court so reads the 5th Amendment and requires a minimum contacts analysis for the assertion of personal jurisdiction in FSIA exception cases, then this would import all the complications of minimum contacts jurisprudence into FSIA litigation. Undoubtedly, this would be a litigation and expense force multiplier for FSIA cases.

If the Court sticks to the canon that counsels deciding cases on a narrow ground when possible, rather than broad constitutional questions, the 5th Amendment question may remain open for another day.