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Devas shareholders file action in U.S. District Court for Southern District of New York, pursuing assets of Air India to satisfy the BIT arbitration award and seeking recognition of Air India as an “alter-ego” of the Indian government
Within days of the Ninth Circuit ruling, the Indian Supreme Court declined to issue a stay on the liquidation order in the intervening period before the NCLAT appeal hearing on July 8, which is customary in such a situation. The Indian Government continued to implicate its judiciary in the scheme to unlawfully evade payment.
The U.S. Ninth Circuit Court of Appeals enters an order granting Devas shareholders and investors the right to intervene as full parties entitled to defend the ICC Award, which was confirmed by Judge Thomas Zilly of the U.S. District Court Western District of Washington in October 2020. This is significant. The Indian government scheme to expropriate Devas (i.e. – close it down) and argue fraudulently before the U.S. federal courts that Devas no longer exists has been exposed.
The NCLT issues an order to forcibly liquidate and sanction the expropriation of Devas Multimedia Private Ltd. The NCLT admits the reason for the expropriation is to prevent Devas from using its incorporated status for “enforcing the ICC Award” outside of India, which they claim would “abuse the process of law.” The Indian Government must seize Devas because it owns the ICC Award. As a result of this order, the Indian Government’s sophisticated scheme to unlawfully evade payment of the ICC Award is now fully transparent.
Deutsche Telekom files a petition in the U.S. District Court for the Western District of Washington to confirm the Quantum Award granted to it by the UNCITRAL tribunal seated in Geneva, totaling US$132 million plus accrued interest until it is paid in full.
Judge Zilly of the U.S. District Court Western District of Washington noted in a ruling that Antrix never argued fraud in the arbitration or confirmation proceedings, and issued his caution over the wind up proceeding and firing Devas’s counsel: “[s]uch actions, taken to undermine a litigant’s right to an appeal or its ability to defend itself in foreign courts, could, in and of themselves, amount to irreparable harm” and that “substantial evidence suggests that collusive conduct may be afoot, see supra, Section 3(B), thereby frustrating this Court’s interests in ‘prevent[ing] vexatious or oppressive litigation’ in a foreign forum and in ‘protect[ing] [its] jurisdiction.’” Finally, in a blow to the Government of India’s efforts to use these sham proceedings to railroad Devas in the U.S. courts, Judge Zilly indicates that he will not vacate any judgment based on these collusive and sham proceedings occurring in India.
The liquidator issued an interim report concluding that the 2005 Devas Agreement was “initiated by fraud” and Devas was “incorporated with a view to obtain for itself the agreement and to enjoy the fruits of such fraud”, contrary to the Suresh Report and based merely upon untried allegations to advance the winding up of Devas.
Solicitor General Mehta successfully convinces the NCLT to appoint a government liquidator to wind up Devas. In its ruling, the NCLT concluded that Antrix had, “prima facie proved that [Devas] has resorted [to] various frauds, misfeasance, connived with officials etc. in obtaining” the Agreement – even though neither Antrix nor the Government of India alleged fraud during the arbitration proceedings.
The Government of India authorizes Antrix to move to “wind up” Devas on the basis of fraud. That same day, and with virtually no notice to Devas, Prime Minister Modi’s right-hand lawyer, India’s Solicitor General, Tushar Mehta, urgently requests the National Company Law Tribunal (NCLT), a specialized companies court, to liquidate Devas and expropriate its property, claiming the Devas Agreement “had been obtained fraudulently and that an immediate wind-up of Devas was the appropriate remedy.”
