Devas Multimedia is out to enforce a $1.2-billion international arbitration award arising from a failed contract with Antrix Corporation, the commercial arm of ISRO, by approaching US courts this week to lay claim on Air India’s assets abroad. Matthew D McGill, partner at Gibson, Dunn & Crutcher, and lead counsel for a number of Devas’ shareholders, explains what necessitated this latest move in the US courts, via an e-mail interview to Sudipto Dey. Edited excerpts:
With appeals pending before the National Company Law Appellate Tribunal (NCLAT) and the Supreme Court, what was the urgency for moving courts in the US to lay claim on assets of Air India?
It is a common practice after winning such a decisive arbitration award to act on enforcing a decision, which was binding on the Indian government. The only urgency is coming from the Indian government, which has taken outrageous actions to evade payment of the award, and expropriate Devas.
Cairn Energy has made similar claims on assets of Air India in another arbitration matter. What are the chances of Devas Multimedia succeeding in this case?
We are confident that courts operating under the rule of law will enforce the arbitration award to Devas shareholders. Devas will continue to pursue its rights and enforcement actions against India in courts around the world.
What is the current status of various cases that Devas is pursuing in India?
First, on July 8, the NCLAT will hear our appeal on a decision by the National Company Law Tribunal (NCLT) to approve the government’s request to appoint a liquidator in order to wind up Devas. Second, we are currently in set aside proceedings in Delhi that were initiated by the Indian government/Antrix, which is their effort to vacate the ICC Award. These proceedings continue in the Delhi High Court.
India’s contention has been that the establishment of fraud and corruption in the initial contract between Antrix and Devas takes this dispute outside the ambit of the Bilateral Investment Treaty (under which the arbitration award was given). Your take?
Let’s be clear: The fraud claims are false, and we are confident they will be summarily dismissed by courts that uphold the rule of law. Antrix manufactured these claims specifically to evade payment of the award. In fact, Antrix only made these allegations after the US federal court awarded Devas a judgment of almost $1.3 billion. It did not raise these allegations in the arbitration proceedings, or its initial set aside application, or the US confirmation proceedings.
Does the initial proposal by Devas Multimedia to resolve this dispute amicably still stand?
Devas investors remain committed to resolving this matter amicably. Unfortunately, our letter has been met with silence from the Indian government. Business Standard