CC/Devas (Mauritius) Limited v. Antrix Corp.: International Arbitration and Constitutional Avoidance
I suspect that CC/Devas (Mauritius) Limited v. Antrix Corp. Ltd. caught the eye of the Supreme Court because of an interesting constitutional question: Does the Due Process Clause of the Fifth Amendment apply in civil suits brought against foreign states in U.S. courts? More than thirty years ago, Justice Scalia, writing for a unanimous Court in Republic of Argentina v. Weltover, Inc., signaled a negative answer: The Court regards the states of the United States as outside the scope of that clause, and why should foreign states fare any better?
Since Scalia dropped that hint, no court of appeals has held that foreign states enjoy constitutional protection, but several have held that state-owned firms do, at least if they don’t qualify as the alter ego of their state. To answer the question, the Court would have to engage deep structural issues about the constitution and inter-sovereign relations and the purposes and values of due process, topics that delight many law professors. But perhaps the Court picked the wrong case.
Antrix, an Indian company wholly owned by the Indian state, entered into an arbitration agreement with Devas, a private Indian company, in the course of their business relationship. Devas brought a claim under the agreement and prevailed in arbitration, although the Indian courts later annulled the award. Devas nevertheless sought to confirm the award in the United States, hoping to find assets in our country against which it might collect.