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Devas Multimedia Private Ltd. v. Antrix Corp. Ltd.
United States District Court, W.D. Washington, Seattle
April 16, 2019
DEVAS MULTIMEDIA PRIVATE LTD., Petitioner,
ANTRIX CORP. LTD., Respondent.
following Minute Order is made by direction of the Court, the
Honorable Thomas S. Zilly, United States District Judge:
Respondent Antrix Corp. LTD.'s (“Antrix”)
Motion to Dismiss and Opposition to Petition to Confirm
Foreign Arbitral Award, docket no. 13, is DENIED as follows:
(a) Antrix is subject to this Court's personal
jurisdiction pursuant to the Foreign Sovereign Immunities Act
(“FSIA”). 28 U.S.C. § 1330(b). The parties
do not dispute that personal jurisdiction exists as a matter
of statute, but Antrix maintains that it is entitled to
additional, constitutional due process protections requiring
a minimum contacts analysis. It is not. Antrix is not a
“person” for due process purposes because it is
effectively controlled by the Government of India. Both the
U.S. Supreme Court and the Ninth Circuit Court of Appeals
have assumed without deciding that foreign states are
“persons” entitled to due process. See
Republic of Argentina v. Weltover, Inc., 504 U.S. 607,
619 (1992); Altmann v. Republic of Austria, 317 F.3d
954 (9th Cir. 2002). Where the state exercises sufficient
control over a foreign corporation, the due process clause
does not apply and statutory personal jurisdiction under the
FSIA is all that is required. First Inv. Corp. of
Marshall Islands v. Fujian Mawei Shipbuilding Ltd., 703
F.3d 742, 752 (5th Cir. 2012); GSS Group Ltd. v.
Nat'l Port Auth., 680 F.3d 805, 813-14 (D.C. Cir.
2012); Frontera Res. Azer. Corp. v. State Oil Co. of the
Azer. Rep., 582 F.3d 393, 400 (2d Cir. 2009); TMR
Energy Ltd. v. State Property Fund of Ukraine, 411 F.3d
296 (D.C. Cir. 2005) (concluding that state control over a
private fund meant the fund was not a person entitled to due
process protection and that personal jurisdiction was
established by subject matter jurisdiction and service under
28 U.S.C. § 1330(b)). The Court finds these cases
persuasive. Antrix is wholly-owned by the Government of
India. See Antrix's Corporate Disclosure
Statement, docket no. 10. The Government of India exercises
“plenary control” over Antrix in a
principal-agent relationship. TMR, 411 F.3d at
301-02. Antrix is “under the administrative control of
[India's] Department of Space” (“DOS”)
and is the “commercial arm” of a related
government agency, the Indian Space Research Organization
(“ISRO”). Second Declaration of Elizabeth A.
Hellmann, docket no. 24, Ex. 45. The Government of India
itself characterizes Antrix as a “corporate front of
DOS/ISRO” and “as a virtual corporation housed
within DOS/ISRO for the purposes of staffing, premises and
all organizational support.” Id., Ex. 48 at 1.
Antrix has no satellites, satellite launch vehicles,
transponders, or electromagnetic spectrum of its own, but
rather markets assets owned and controlled by ISRO and DOS.
Id. at 1-2. Most of Antrix's commercial
activities are financed by the government of India.
Id. at 6. Much of Antrix's leadership is
appointed by the government of India. Id., Ex. 47.
The Court has jurisdiction under FSIA.
(b) The Court declines to dismiss this action based on the
doctrine of forum non-conveniens. Petitioner has no adequate
alternative forum in which to execute on property Antrix may
own in the United States. See TMR, 411 F.3d at 303
(“[O]nly a court of the United States . . . may attach
the commercial property of a foreign nation located in the
United States.”). Active investigations and proceedings
against Petitioner and its officers and agents in
India-including both civil and criminal proceedings-raise
additional concerns about the neutrality of proceedings in
India. Given the availability of a temporary stay under the
Convention on the Recognition and Enforcement of Foreign
Arbitral Awards of June 10, 1958 (the “New York
Convention”), the Court concludes that dismissal would
unfairly prejudice Petitioner and is unwarranted.
(c) The Court exercises its discretion to stay this action
pursuant to Article VI of the New York Convention pending the
resolution of Antrix's challenge to the underlying award
in India's courts. See Matter of Arbitration of
Certain Controversies Between Getma International and
Republic of Guinea, 142 F.Supp.3d 110 (D.D.C. 2015)
(citing factors enumerated in Europcar Italia, S.p.A. v.
Maiellano Tours, Inc., 156 F.3d 310 (2d Cir. 1998)). The
matter is STAYED for one (1) year from the date of this
Order. On or before April 15, 2020, the parties shall file a
joint status report regarding the litigation in India and
whether the Court should lift or extend the stay.
(d) The Court defers a decision on as to whether any security
must be posted as a condition of the stay now imposed by the
Court. The parties shall address the amount of security, if
any, the Court should require during the stay under the New
York Convention. Petitioner shall file a brief of not more
than ten (10) pages on or before April 26, 2019. Respondent
shall file a ...
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