CC/Devas Ltd. v. Antrix Corp. Ltd. (23-1201)

argument 23-1201

CC/Devas Ltd. v. Antrix Corp. Ltd.

Supreme Court of the United States 49 min 6 speakers 7 chapters transcribed 1 month ago official recording ↗

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What is the core legal issue surrounding the FSIA arbitration exception in this case?

John G. Roberts 0:00

We will hear argument first this morning in Case 23-1201, C. DeVos-Mauritius Limited v. Antrix and the Consolidated Case. Mr. Street.

Unknown 0:11

Mr. Chief Justice, and may it please the Court, an arbitral award against a foreign state is worth little if no courts can enforce it. Congress added the FSIA's arbitration exception to allow U.S. courts to enforce New York Convention awards against foreign sovereigns. The Ninth Circuit's holding that the FSIA requires minimum contacts is atextual and would gut Congress's purpose. Antrix has abandoned it, and this Court should reject it. Antrix's new argument that the arbitration exception requires a nexus with U.S. commerce is waived and meritless. Congress knew how to require a U.S. commercial nexus, and it did not do so in the arbitration exception to allow enforcement of all convention awards. Antrix's constitutional defense also fails.

Unknown 1:04

Every circuit post-Weltover has correctly held that foreign states are not persons protected by due process. Nor does the Fifth Amendment reverse incorporate a minimum contacts requirement from the 14th. In any case, Antrix consented to personal jurisdiction when it agreed to arbitrate under the Convention. I welcome the Court's questions.

Clarence Thomas 1:26

Would you elaborate on your point that Antrix's point, argument that the arbitration exception requires minimum contact without more?

Unknown 1:42

Yes, Your Honor. And I would like to first point out that Antrix conceded below that the arbitration exception applies. The district court recognized that, and the circuit court recognized that at pages 4 and 22 to 23. Now they are arguing that the arbitration exception, as I understand it, by its own terms, requires a nexus with U.S. commerce. I don't anymore understand them to be arguing that the arbitration exception requires minimum contacts under the international shoe standard. But to the argument that Antrix does make, which is that the subject matter capable of settlement by arbitration language in the arbitration exception somehow reads in a U.S. commercial nexus, I would have a couple things to say about that.

Unknown 2:31

First of all, Congress knew how to require a nexus with U.S. commerce. It did that in the commercial activity exception. It did that in A2 through A5 of the original FSIA exceptions. But Congress did not do that here because it was looking to enforce the New York Convention, which does not require minimum contacts. Congress viewed that as an example of a waiver and a consent to personal jurisdiction, similar to what the original FSIA already allowed under A1. Now, Antrix's textual argument regarding the subject matter capable language is not only waived, but it's completely meritless. No court, no scholar has ever adopted that, and that's for good reason. That subject matter capable language comes directly from the New York Convention, and this court construed that very language in Mitsubishi Motors.

Unknown 3:26

And this Court explained that for a matter to fall outside of the subject matter capable of arbitration clause, Congress would need to expressly legislate that a particular category of cases was not arbitrable and instead had to be heard by U.S. courts. Congress knows how to do that. We cite examples in our reply brief. Perhaps the most recent is 9 U.S.C. Section 402, in which Congress held that sexual assault cases at the election of the plaintiff are not arbitrable and must be heard by a U.S. court. Congress did not do that with respect to international commercial disputes, and Antrix has cited no statute in which Congress carved out international commercial affairs from arbitration. Quite the contrary, the New York Convention in articles...

Unknown 4:20

Two and three expressly require U.S. courts to recognize international arbitration awards so long as they are commercial and rendered in the territory of a signatory state.

Ketanji Brown Jackson 4:33

So is it your argument that we do have to address the arbitration exception argument that is now being made? I mean, I understand you to be saying that the argument is that Antrex is making today is not the argument that they made below, and therefore perhaps the Court shouldn't reach it.