Australia High Court Rejects $111 Million Arbitral Award Enforcement Against India In Antrix-Devas Case

The High Court of Australia has dismissed an appeal seeking enforcement of an arbitral award of over USD 111 million against India, holding that ratifying the New York Convention does not amount to a waiver of sovereign immunity.

The dispute arose from claims by Mauritian investors in Bengaluru-based Devas Multimedia Private Limited over the cancellation of a satellite spectrum deal between Antrix Corporation Limited, the commercial arm of the Indian Space Research Organisation, and Devas.

Holding that there is a strong presumption against waiver of foreign State immunity, a seven-judge bench led by Chief Justice Stephen Gageler observed:

“In many States, including Australia, foreign State immunity is not absolute but is subject to a range of exceptions where the courts of the local State retain some jurisdiction over the foreign State as part of the local State's territorial sovereignty. But within the preserved area of immunity, there is a strong presumption that a foreign State has not abandoned its independence and autonomy by waiving that otherwise preserved immunity.”

The court emphasised that any waiver of sovereign immunity must be “clear and unmistakable”, and found that no such waiver could be inferred from India's ratification of the New York Convention.

The dispute arose out of a bilateral investment treaty between India and Mauritius signed in 1998, which came into force on June 20, 2000. In 2005, Devas Multimedia Pvt. Ltd. entered into an agreement with Antrix Corporation Ltd. for leasing electromagnetic spectrum on satellites to provide broadband and audio-visual services across India.

In 2011, the Government of India scrapped the agreement, citing the need to reserve the spectrum for national and strategic purposes. A year later, in July 2012, Mauritian investors who held shares in Devas took the dispute to arbitration in The Hague under the UNCITRAL Rules, alleging that the move had effectively expropriated their investments.

Nearly four years later, on July 25, 2016, the tribunal ruled that it had jurisdiction and found India in breach of its treaty obligations. The proceedings culminated in a final award dated October 13, 2020, directing India to pay compensation exceeding USD 111 million.

Efforts to enforce the award in Australia began on April 21, 2021.

Rejecting the contention that ratification of the Convention amounted to waiver, the court held that Article III preserves the application of domestic procedural rules, including foreign State immunity, and does not support any automatic submission to jurisdiction. It observed:

“Article III thus qualifies the obligation of contracting States to enforce arbitral awards by reference to whatever rules of foreign State immunity are adopted by the territory where the award is relied upon.”

The court also noted that the New York Convention contains no express reference to waiver of foreign State immunity and that its text and drafting history do not support such an interpretation.

It further declined to rule on the broader scope of the Convention, holding that the issue did not arise once it found no waiver of immunity:

“Since India cannot be said to have waived its foreign State immunity by ratifying the New York Convention, it is unnecessary to determine the scope of the New York Convention in this case. The issues concerning scope of the New York Convention should be decided in a case where they are determinative and where those issues have been fully explored.”

Accordingly, the court held that no clear and unmistakable waiver of sovereign immunity existed and dismissed the appeal.