Devas v. Antrix: Headed back to the Ninth Circuit?
March 6, 2025
On Monday, the Supreme Court held oral argument in Devas v. Antrix to decide “whether plaintiffs must prove minimum contacts before federal courts may assert personal jurisdiction over foreign states sued under the Foreign Sovereign Immunities Act (FSIA).”
Minimum contacts between the defendant and the United States might be required as a matter of statutory interpretation or by the Due Process Clause of the Fifth Amendment. In this case, the Ninth Circuit had held that the FSIA generally requires minimum contacts between defendants and the United States, an argument that Antrix abandoned before the Supreme Court. Antrix argued to the Court instead that the arbitration exception in the FSIA (28 U.S.C. 1605(a)(6)) requires a nexus with the United States because it uses the phrase “subject matter capable of arbitration under the laws of the United States.” This argument is difficult in part because Antrix had earlier conceded in this case that the arbitration exception applies and now argues that it does not apply. Antrix also maintained that it is a “person” entitled to due process, and that due process entitles it to minimum contacts. Devas, the petitioner, argued that there is no statutory minimum contacts requirement in the arbitration exception, and that Antrix, as an Indian state-owned corporation, is not entitled to due process, so there is also no constitutional minimum contacts requirement either.
Turning to the oral argument, Aaron Street was up first for Devas. He argued that Antrix had waived the new argument that the arbitration exception requires a connection to the United States, and that the argument lacked merit in any event. The FSIA exception, he said, is designed to enforce the New York Convention, which relies on consent, not any other connection to the United States. Street also argued that foreign states are not persons entitled to due process, and that even if they are, Fifth Amendment due process does not require minimum contacts. Finally, due process is anyway satisfied because Antrix consented to jurisdiction when it agreed to arbitration under the New York Convention.
Justice Jackson asked whether the Court needed to reach Antrix’s new statutory argument at all, and whether it relates to subject-matter jurisdiction and thus cannot be waived. Street responded that the Court should reach the argument to decide that Antrix had waived it when it conceded earlier in the litigation that the arbitration exception applied. Justice Jackson focused again on whether waiver is appropriate in this context if this issue goes to subject matter jurisdiction. (The FSIA confers subject matter jurisdiction if an exception to immunity applies—meaning that whether an exception applies is an issue of subject matter jurisdiction). Street responded that a waiver itself constitutes an exception to immunity under the FSIA (a different exception than the arbitration exception), and that waiver in turn confers subject matter jurisdiction. He then noted that some of the constitutional issues in this case are also at issue in Fuld v. PLO, resulting in a discussion about whether the Court should resolve the constitutional issues in this case or in Fuld, or whether it should remand some or all of those issues.
Next up was Matthew McGill, also for Devas (there are two consolidated cases), who faced additional questions from Justices Jackson and Thomas about which arguments needed to be addressed and what might be happen on remand. As McGill pressed his arguments, the only really substantive question came from Justice Sotomayor who noted (page 20) that the case is about the confirmation of the arbitral award, and then asked “how does that get you anywhere if there are no resources here to enforce?” McGill responded that the motion to confirm the arbitral award had been granted, judgment was entered, and Devas executed on an asset of Antrix, namely a bankruptcy claim in the Eastern District of Virginia. If the Supreme Court reverses, that judgement would be reinstated. McGill also noted that because Antrix and the government of India are alter egos, Devas can execute the judgment against assets of the government of India.
The U.S. government, represented by Sarah Harris, appeared in support of Devas and argued that Antrix has waived its new statutory argument. Justice Thomas asked about the merits of that argument, and Harris responded with three points (pages 23–26). First, for something to NOT be “a subject matter capable of arbitration,” there needs to some express statement in U.S. law putting it out of bounds, and there is nothing like that here. Second, federal law implements the New York Convention, and reading a nexus or minimum contacts requirement into the 28 U.S.C § 1605(a)(6) (the arbitration exception) is inconsistent with the Convention. Finally, she argued that the FSIA’s arbitration exception to immunity is carefully drafted with a nexus requirement in some parts but not others, making it unlikely that Congress intended to impose a general nexus requirement with the language on which Antrix relies.
Justice Gorsuch then asked Harris whether the Fifth Amendment requires minimum contacts as the Fourteenth Amendment does—the issue in Fuld (and maybe an issue in this case). She answered “no.” Justice Alito asked whether foreign states are “persons” at all, and Harris said “no,” based on foreign states’ ability to interact with the United States on the international plane. She also appeared to favor remand to address the issue in the first instance, noting that the Ninth Circuit had not resolved it.
Carter Phillips then appeared in support of Antrix. He opened by emphasizing the lack of connections between this case and the United States. Both parties are Indian, the contract was executed in India, and the arbitration took place in India pursuant to Indian law. The U.S. Federal Arbitration Act (FAA) is limited to actions involving interstate or foreign commerce, and that limitation from U.S. law is what determines whether the case involves a “subject matter capable of settlement by arbitration” under the laws of the United States, as required by the arbitration exception to the FSIA. Justice Sotomayor pressed the argument in opposition—that the quoted language from the arbitration exception just means that it is a topic or subject that is permissible to arbitrate under U.S. law, not that all the other requirements of the FAA apply, thus the nationality of person concluding the contract is irrelevant.
Justice Jackson questioned again whether this case should go back to the Ninth Circuit to consider the new issue of statutory interpretation. Phillips argued that the Court should rule on it without remand because it involves subject matter jurisdiction and because the Republic of India submitted an amicus brief deriding the U.S. proceedings as an irritant. Justice Kagan and then Justice Gorsuch (pages 37–43) also pushed the point, and eventually Phillips conceded that nothing prevents the Court from remanding the case back down to the Ninth Circuit. On the merits, Justice Jackson asked (page 46) whether it would have mattered in this case if the parties had chosen (in their contract) the United States as a place of arbitration instead of India. Phillips conceded that this was a tough question—his interpretation suggests that even selecting the U.S. as the seat of arbitration would not mean that the case involves interstate or foreign commerce—but responded that Congress would not want to provide an arbitration exception for an action between Indian parties about an Indian contract (pages 46–9).
Predicting the outcome of cases based on oral argument is risky business, so without forecasting who I think will win or lose at the end of day, I predict that the Court remands for resolution of the new statutory interpretation argument and, if necessary, the constitutional questions.