CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited and Telecom Devas Mauritius Limited v. India

At a glance

Parties

CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited and Telcom Devas Mauritius Limited (Mauritius) v. the Republic of India

Case no.

PCA Case No. 2013-09

Forum and rules

PCA-administered ad hoc arbitration under the UNCITRAL Arbitration Rules 1976; seat The Hague

Treaty

India–Mauritius BIT (signed 4 September 1998, in force 20 June 2000)

Tribunal

Marc Lalonde (Presiding Arbitrator), David R. Haigh (dissenting in part), Anil Dev Singh

Sector

Telecommunications; satellite S-band spectrum

Outcome

Award on Jurisdiction and Merits (25 July 2016): by majority, India expropriated the investment, but only to the extent of 40%. The other 60% fell under the essential security interests exception. Unanimously, India breached fair and equitable treatment. Dutch courts dismissed India's set-aside claim. Enforcement results differ from country to country.

Amount

Quantum award of 13 October 2020, as quoted by the Paris Court of Appeal: Devas valued at USD 740 million on 17 February 2011, with compensation set at 40% of that value. USD 50,497,600 each to CC/Devas and Telcom Devas and USD 10,300,800 to DEMPL, plus interest at six-month USD LIBOR + 2%. India to pay USD 10,000,000 towards the claimants' costs. The US District Court described the total as about USD 111.3 million.

The dispute

The claimants are Mauritian companies holding shares in Devas Multimedia Private Limited, an Indian company. On 28 January 2005 Devas Multimedia contracted with Antrix Corporation Limited, the state-owned commercial arm of the Indian Space Research Organisation, to lease 70 MHz of S-band capacity on two satellites still to be built. Devas planned a hybrid satellite and terrestrial service for broadband and audio-visual content. On 17 February 2011 India's Cabinet Committee on Security decided to annul the agreement, citing national needs, including defence, para-military and other public uses. Antrix gave notice of termination on 25 February 2011. The claimants alleged expropriation, breach of fair and equitable treatment, unreasonable and discriminatory measures, and breach of full protection and security imported through the MFN clause. India argued that there was no protected investment, only a pre-investment, and that the decision fell within the essential security interests provision in Article 11(3) of the Treaty.

Key holdings

1. Unanimously, the claims relate to an investment protected by the Treaty. The notice of termination that Antrix sent to Devas was an act of State attributable to India. Award ¶ 501(a)–(b)
2. Article 11(3) is not self-judging, but India receives a wide measure of deference. By majority, the Tribunal lacks jurisdiction to the extent that the annulment was directed to protecting India's essential security interests. It apportioned 60% of the decision to essential security interests, leaving 40% subject to the expropriation regime of Article 6. Award ¶ 501(c)–(e); see ¶ 373
3. By majority, India expropriated the claimants' investment to the extent that the annulment was motivated by other public-interest considerations. Compensation is limited to 40% of the value of the investment. Unanimously, India breached fair and equitable treatment between 2 July 2010 and 17 February 2011. Award ¶ 501(d)–(f)
4. The claim under Article 4(1) for unreasonable or discriminatory measures fails: foreign ownership played no role in the CCS decision. The full protection and security clause of the Serbia–India BIT can be imported through the MFN clause. That standard does not apply, however, because the acts were attributable to the State and so fall to be judged under fair and equitable treatment. Award ¶¶ 484, 496–500
5. David R. Haigh dissented on Article 11(3). In his view the CCS decision only took the spectrum away from commercial use and did not allocate it to the military. The whole taking was therefore an expropriation requiring full compensation. He found no evidentiary or legal basis for the 60/40 split, which the parties had not argued. Dissent ¶¶ 94–112
6. Procedural Order No. 7 refused India's request to stay the quantum phase pending the CBI criminal charge sheet. The charge sheet names none of the claimants, and the partial award is final and binding on the matters it decides. PO7 ¶¶ 15–20
7. The Hague District Court rejected all of India's set-aside grounds: pre-investment, essential security interests and the 60/40 split (no surprise decision, reasons given), and the criminal complaint. The Hague Court of Appeal affirmed on 16 February 2021. District Court ¶¶ 4.51–4.75; Court of Appeal ¶¶ 5.27–5.43

Procedural history

1. 3 July 2012The claimants commence arbitration under Article 8 of the Treaty.
2. 1–5 September 2014Hearing on jurisdiction and liability at the Peace Palace, The Hague.
3. 25 July 2016Award on Jurisdiction and Merits, with a partial dissent by David R. Haigh.
4. 21 December 2016Procedural Order No. 7 denies India's request to suspend the proceedings.
5. 14 November 2018The Hague District Court rejects India's claim to set aside the partial award and orders India to pay costs of EUR 8,331.
6. 13 October 2020Quantum award: about USD 111.3 million plus interest and USD 10 million in costs.
7. 16 February 2021The Hague Court of Appeal affirms the District Court judgment.
8. 8 January 2022 – 4 December 2024Québec enforcement proceedings. The Superior Court quashes the garnishment of Airport Authority of India funds held by IATA and halves the Air India garnishment (8 January 2022). The Court of Appeal quashes the Air India garnishment (20 September 2022), and the Supreme Court of Canada refuses leave (11 May 2023). The Superior Court holds AAI immune (29 August 2024). The Court of Appeal dismisses India's immunity appeal, reinstates the AAI garnishment and holds that the IATA Act does not affect sums held before 5 May 2022 (4 December 2024).
9. 24 March 2022The US District Court for the District of Columbia stays the confirmation petition pending the Dutch set-aside proceedings and declines to require India to post security.
10. 10 September 2024The Paris Court of Appeal declares inadmissible the interventions of the US assignees in India's appeals against the French exequatur orders.
11. 31 January 2025The Full Federal Court of Australia upholds India's immunity: by reason of its commercial reservation to the New York Convention, India did not waive immunity for this non-commercial award.
12. 17 April 2025The English High Court holds that India's ratification of the New York Convention, on its own, is not a submission to jurisdiction under s. 2(2) of the State Immunity Act 1978. On 16 May 2025 it grants permission to appeal and reserves costs.

Tribunal, counsel and experts

Decided by

• Marc Lalonde President
• David R. Haigh Co-arbitrator (dissented on essential security interests and the 60/40 apportionment)
• Anil Dev Singh Co-arbitrator
• I.A.M. Kroft Judge, The Hague District Court — appointed by a court
• R.C. Hartendorp Judge, The Hague District Court — appointed by a court
• P. Glazener Judge, The Hague Court of Appeal — appointed by a court
• J.J. van der Helm Judge, The Hague Court of Appeal — appointed by a court
• D. Aarts Judge, The Hague Court of Appeal — appointed by a court
• Michel A. Pinsonnault Judge, Superior Court of Québec — appointed by a court
• Lucie Fournier Judge, Quebec Court of Appeal — appointed by a court
• Christine Baudouin Judge, Quebec Court of Appeal — appointed by a court
• Geneviève Marcotte Judge, Quebec Court of Appeal — appointed by a court
• Jacques J. Levesque Judge, Quebec Court of Appeal — appointed by a court
• Mark Schrager Judge, Quebec Court of Appeal — appointed by a court
• Marie-Josée Hogue Judge, Quebec Court of Appeal — appointed by a court
• Benoît Moore Judge, Quebec Court of Appeal — appointed by a court
• Sophie Lavallée Judge, Quebec Court of Appeal — appointed by a court
• Royce C. Lamberth Judge, United States District Court for the District of Columbia — appointed by a court
• Fabienne Schaller Judge, Paris Court of Appeal — appointed by a court
• Marie-Catherine Gaffinel Judge, Paris Court of Appeal — appointed by a court
• Marie Lambling Judge, Paris Court of Appeal — appointed by a court
• Sarah C Derrington Judge, Federal Court of Australia (Full Court) — appointed by a court
• William Blair Judge, High Court of England and Wales (Commercial Court) — appointed by a court

For the claimant

Borden Ladner Gervais LLP · Gibson, Dunn & Crutcher LLP · SELARL Pellerin - De Maria - Guerre · Norton Rose Fulbright Australia · G.J. Meijer · Van der Plas-Hoebeke

For the respondent

Stikeman Elliott LLP · White & Case LLP · SELARL LX Paris-Versailles-Reims · T.L. Claassens

For other participants

Davies Ward Phillips & Vineberg · Woods · Dentons Canada LLP

Run a conflict check on these names →

Keywords

• essential security interests
• Article 11(3)
• non-self-judging clause
• indirect expropriation
• fair and equitable treatment
• MFN clause
• full protection and security
• India–Mauritius BIT
• S-band spectrum
• Antrix
• satellite telecommunications
• set-aside
• state immunity
• New York Convention commercial reservation
• garnishment
• alter ego
• assignment of award
• enforcement

Summary generated with AI from the published documents — refer to the award for the authoritative text.