The Ninth Circuit’s published opinion (which was accompanied by a separate non-precedential opinion addressing other issues in the case) reached three important holdings: (i) exercising personal jurisdiction over the SOE was reasonable under the Fifth Amendment’s Due Process Clause, as interpreted in the Supreme Court’s recent opinion in Fuld v. Palestine Liberation Organization, 606 U.S. 1 (2025), (ii) the arbitration exception in the Foreign Sovereign Immunities Act (“FSIA”) does not require that the parties’ dispute have a commercial nexus with the United States, and (iii) the forum non conveniens doctrine does not apply to an award enforcement action under the New York Convention. Slip op. at 15-26. Together, the Ninth Circuit’s holdings in Devas confirm the United States’ status as a preferred venue for enforcing international arbitral awards against SOEs, regardless of whether the parties or the underlying dispute have any connection with this country. 

Background

On September 14, 2015, a New Delhi-seated arbitral tribunal constituted under the ICC Arbitration Rules issued an award ordering Antrix, an Indian SOE, to pay Devas, a privately-held Indian corporation, $562.5 million for breach of a satellite contract. In 2018, Devas filed a petition

in federal district court in Seattle, Washington to confirm the award under the New York Convention. The district court confirmed the award, but the Ninth Circuit reversed in 2023, holding that the FSIA required a traditional minimum contacts analysis and that Antrix lacked sufficient contacts with the United States. The U.S. Supreme Court reversed the Ninth Circuit in 2025, holding that the FSIA imposes no minimum contacts requirement. CC/Devas (Mauritius) Ltd. v. Antrix Corp., 605 U.S. 223, 231 (2025). The Supreme Court remanded for the Ninth Circuit to address Antrix’s remaining arguments, including its argument that it was entitled to assert a related personal jurisdiction defense under the Fifth Amendment’s Due Process Clause and that the FSIA’s arbitration exception does not apply to cases that lack a commercial nexus to the United States.

The Ninth Circuit’s Decision on Remand

On remand, the Ninth Circuit held that the exercise of personal jurisdiction over an SOE in this award enforcement action comports with due process. Id. at 19-22. The court assumed without deciding that an SOE is a “person” entitled to the protections of the Fifth Amendment’s Due Process Clause. Id. at 19. In one of the first cases to apply the Supreme Court’s decision in Fuld v. Palestine Liberation Organization, 606 U.S. 1 (2025), the Ninth Circuit reiterated that case’s holding that the Fifth Amendment does not require a traditional minimum contacts analysis, unlike the Fourteenth Amendment (which applies in federal court only when federal law borrows a state’s personal jurisdiction rules). Slip op. at 20. Personal jurisdiction over an SOE is governed by the FSIA, and the Fifth Amendment “necessarily permits a more flexible jurisdictional inquiry commensurate with the Federal Government’s broader sovereign authority.” Id. (quoting Fuld, 606 U.S. at 16).

The Ninth Circuit concluded that the exercise of personal jurisdiction over Antrix passed muster under the Fifth Amendment because it satisfied the three-factor “reasonableness” test applied by the Supreme Court in Fuld. Id. at 20-21. First, the United States had a substantial interest as the forum state in exercising jurisdiction over Antrix, as evidenced by Congress and the Executive’s “considered judgment” in the FSIA to withdraw immunity from foreign states (including SOEs) in actions to enforce foreign arbitral awards under the New York Convention. Id. at 21. Second, the burden on Antrix was reasonable, because it was a “sophisticated party that, through its parent government, India, commands substantial resources.” Id. at 21-22. Third, Devas had a substantial interest in enforcing its award in the United States, because there was no other forum in which it could execute on property that Antrix may own in this country. Id. at 22.

The Ninth Circuit also upheld subject-matter jurisdiction under the FSIA, concluding that the FSIA’s arbitration exception applies even if the parties’ underlying dispute concerns “purely foreign commerce.” Id. at 15. In doing so, the Court rejected a novel limitation on the FSIA’s arbitration exception proposed by Antrix and that the Supreme Court had declined to reach. The court explained that, unlike the FSIA’s commercial activity exception, the arbitration exception contains no language requiring a nexus between the dispute and United States commerce. Id. at 16. In addition, the arbitration agreement between Devas and Antrix concerned a subject matter “capable of settlement by arbitration” within the meaning of the arbitration exception, because the U.S. statute implementing the New York Convention provides that an award enforcement action under the Convention “shall be deemed to arise under the laws and treaties of the United States.” Id. at 17 (quoting 9 U.S.C. § 203). The court further reasoned that “[a]lthough the [Federal Arbitration Act] itself limits its definition of ‘commerce’ to commerce within or ‘with’ the United States or ‘between’ the United States and a foreign nation …, that limitation does not carry over to the Convention.” Id. at 17–18.

Finally, the Ninth Circuit agreed with the D.C. Circuit that forum non conveniens is not an available defense to an award enforcement action under the New York Convention. Id. at 25-26. The Ninth Circuit explained that Article V of the New York Convention lists the exclusive grounds on which a court may decline enforcement of an award, and “[t]hat list does not include the inconvenience of the forum.” Id. at 23. In addition, a “discretionary, forum-by-forum defense to enforcement” would be “irreconcilable with the design of the Convention,” which was to unify the standards by which awards are enforced in signatory countries. Id. at 24 (citing Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 (1974)). A forum non conveniens defense also was inconsistent with the “structure” of an enforcement action under the New York Convention, because the doctrine presupposes an adequate alternative forum, and the FSIA provides that only a United States court can attach a foreign sovereign’s assets located in this country. Id. at 12, 25.

Key Takeaways

The Ninth Circuit’s decision on remand in Devas establishes it as a friendly jurisdiction for the enforcement of arbitral awards against SOEs. The decision clarifies that the FSIA’s arbitration exception does not require a nexus between the parties’ dispute and United States commerce, and the court’s application of Fuld demonstrated that the court believes the exercise of personal jurisdiction over an SOE in an award enforcement action generally will comport with due process. Devas also aligns the Ninth Circuit with the D.C. Circuit’s rule that forum non conveniens is not an available defense in award enforcement actions.