SCOTUS: Foreign Sovereign Immunities Act Does Not Contain a Statutory Minimum Contacts Requirement

By Elliot Friedman, David Livshiz, Thomas Walsh, Christian Vandergeest & Amanda Huang

Last week, the U.S. Supreme Court held in CC/Devas (Mauritius) Ltd. v. Antrix Corp. Ltd., No. 23–1201 (June 5, 2025) (available at https://bit.ly/3ZmNfUM), that the Foreign Sovereign Immunities Act (“FSIA”) does not contain a statutory requirement that a foreign state or its agencies have minimum contacts with the United States. 

The Court largely rejected arguments by Antrix, the state-owned commercial arm of India’s space agency, that it was immune from a suit to enforce a foreign arbitral award because it has no dispute-related contacts with the United States.

The nation’s top Court chose to leave for another day several other important questions raised by the appeal, including whether a requirement for dispute-related contacts arises under the U.S. Constitution’s Fifth Amendment and whether the FSIA’s arbitration exception applies to purely foreign arbitrations. These questions may now be addressed by the U.S. Court of Appeals for the Ninth Circuit on remand.

Background

In 2005, Devas Multimedia Private Ltd. , an Indian satellite communications company, and Antrix Corp. Ltd., the state-owned commercial arm of India’s space agency, entered into an agreement for Antrix to provide satellites and S-band electromagnetic spectrum technology to Devas. In February 2011, Antrix terminated the agreement, leading Devas to commence arbitration proceedings under the agreement’s arbitration clause.

In September 2015, an arbitral tribunal awarded Devas $562.5 million plus interest. Devas filed a petition in the U.S. District Court for the Western District of Washington to confirm the award.  In response, Antrix alleged that it was not subject to the district court’s jurisdiction because Antrix did not have sufficient minimum contacts with the United States.

The district court rejected this argument, ruling that Antrix was an agent of the Indian government and a “foreign state” under the FSIA. Relying on decisions from the Second, Fifth, and D.C. Circuit U.S. Courts of Appeal, the district court held that the due process protections in the U.S. Constitution do not apply to foreign states, and so the court could exercise jurisdiction over Antrix even if it did not have minimum contacts with the United States. The district court then confirmed the arbitral award and entered judgment against Antrix.

The Ninth Circuit reversed, relying on circuit precedent holding that the FSIA contains an implicit statutory requirement that a defendant state have minimum contacts with the United States before a court can exercise personal jurisdiction. The Ninth Circuit acknowledged that the FSIA does not mention minimum contacts, but ruled that FISA's legislative history demonstrates that Congress intended for that requirement to apply. Devas Multimedia Private Ltd. v. Antrix Corp., No. 20-36024 (9th Cir. Aug. 1, 2023) (available at https://bit.ly/4ijygSM).

The Supreme Court granted certiorari. Before the Supreme Court, Antrix did not attempt to defend the Ninth Circuit’s reasoning or precedent, and instead presented new arguments. Antrix argued that it was not a “foreign state” under the FSIA, but instead a foreign company owned by India, and so was entitled to the due process protections of the U.S. Constitution.

Antrix also argued that the FSIA’s “arbitration exception” did not apply to abrogate Antrix’s sovereign immunity because the relevant arbitration, contract, and parties were entirely foreign and thus did not have any meaningful connection to the United States.  See Elliot Friedman, David Y. Livshiz & Christian Vandergeest, “Supreme Court Hears Foreign Sovereign Immunities Act-Arbitration Argument in Devas v. Antrix,” CPR Speaks (March 6, 2025) (available at https://bit.ly/43EokyI).

The Supreme Court’s Decision

The Supreme Court unanimously reversed last week, holding in a short decision that the FSIA does not contain a statutory requirement that foreign states or their agencies have minimum contacts with the United States. The Court declined to consider Antrix’s other arguments, and instead remanded the case to the Ninth Circuit to consider them.

The Court began by reiterating the basic structure for obtaining personal jurisdiction over a foreign sovereign under the FSIA. The statute provides that “personal jurisdiction shall exist” where one of the FSIA’s exceptions to sovereign immunity applies and the defendant is properly served.

“The most natural reading” of this statute, the Court explained, is that when these requirements are met, “personal jurisdiction over a foreign sovereign is automatic.”

The Court emphasized that the FSIA nowhere mentions “minimum contacts,” and that courts should not add that requirement where Congress did not include it in the statute. The Court further observed that many of the FSIA’s exceptions to sovereign immunity require that a defendant have certain domestic contacts before a case may proceed—the commercial activity exception, for example, requires at least a “direct effect” in the United States—showing that where Congress wanted a jurisdictional nexus, it was written into the statute. 

The Supreme Court declined to address the new arguments raised by Antrix—that minimum contacts are required by the Fifth Amendment Due Process Clause of the U.S. Constitution or that the FSIA’s arbitration exception does not apply to the dispute—and instead remanded these questions to the Ninth Circuit.

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The Ninth Circuit’s decision holding that the FSIA contains a statutory minimum contacts requirement was an outlier among circuit courts of appeal. The Supreme Court’s decision resolved this split in favor of the majority of circuits, and declined the invitation to take on larger, more divisive questions.

The remanded proceedings before the Ninth Circuit may explore these questions and so should be watched closely. It is likely that Antrix will re-raise its arguments that the FSIA’s arbitration exception does not apply to arbitrations with no nexus with the United States. Personal jurisdiction issues will also remain front and center, with Antrix likely to argue that even if it is considered a foreign state, it is still entitled to a minimum contacts analysis under the U.S. Constitution—a point that the U.S. Supreme Court left open in its 1992 decision in Republic of Argentina v. Weltover, 504 U.S. 607 (1992) (available at https://bit.ly/3FV20HI).

It is possible that the Ninth Circuit on remand may also be asked to consider the scope of the Fifth Amendment Due Process Clause, and whether the jurisdictional protections it provides are less stringent than the traditional minimum contacts analysis. With all of these issues still open, a return trip to the U.S. Supreme Court may well be in the parties’ future.

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Friedman heads Freshfields US LLP’s international arbitration practice in the Americas. Livshiz is a partner who works on complex commercial disputes, criminal and civil fraud actions, and bankruptcy litigation. Walsh is an international arbitration partner. Vandergeest is a senior associate in Freshfields’ disputes group. Huang is a litigation and  international arbitration associate.  All are based in the firm’s New York office.

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