NYU School of Law’s Center for Transnational Litigation, Arbitration, and Commercial Law is glad to announce that its Executive Director, Professor Franco Ferrari, submitted an amicus curiae, co-authored with Professor Andrea Bjorklund from McGill University, in the matters CC/Devas Ltd. et al. v. Antrix Corp. Ltd. et al., case number 23-1201, and Devas Multimedia Pvt. Ltd. v. Antrix Corp. Ltd. et al., case number 24-17, pending before the Supreme Court of the United States.
The issue to be decided relates to whether the Foreign Sovereign Immunities Act (“FSIA”) as applied to actions to recognize and enforce arbitral awards against foreign states requires, as held by the 9th Circuit, plaintiffs not only to satisfy the FSIA’s clearly stated requirements, but also to plead and prove that a foreign state has “minimum contacts” with the United States to establish personal jurisdiction over a foreign sovereign in an action seeking recognition of an international arbitration award.
In their brief, Professors Ferrari and Bjorklund argue not only that the FSIA does require no such thing. Rather, the FSIA states that “[p]ersonal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have jurisdiction under subsection (a) [i.e., subject matter jurisdiction] where service has been made under section 1608 of this title.” 28 U.S.C. § 1330(b). According to Professors Ferrari and Bjorklund, there is no ambiguity to that statutory command: “Under the FSIA, subject matter jurisdiction plus service of process equals personal jurisdiction.” GSS Group Ltd. v. Nat’l Port Auth., 680 F.3d 805, 811 (D.C. Cir. 2012) (internal quotations omitted). And, under the FSIA, subject matter jurisdiction is explicitly authorized in any action against a foreign state “either to enforce an agreement made by the foreign state with or for the benefit of a private party to submit to arbitration . . . or to confirm an award made pursuant to such an agreement to arbitrate” if “the agreement or award is or may be governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards.” 28 U.S.C. § 1605(a)(6).
Professors Ferrari and Bjorklund also argue that the 9th Circuit’s ruling impermissibly construes the FSIA in a way that contravenes the United States’ well-established obligations under both the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States.
The full text of the brief can be downloaded by following this link: https://www.supremecourt.gov/DocketPDF/23/23-1201/334873/20241211150209011_120118%20Brief.pdf