U.S. Court Lifts Stay on Enforcement in the United States; NCLT Proceedings a Sham
Coming off the heels of a major success in Canada that has garnished over $30 million and counting in Indian government assets held at the International Air Transportation Association (IATA), Devas shareholders have struck again.
On January 3, Judge Thomas Zilly of the U.S. District Court Western District of Washington lifted the effective stay on enforcement. As a result, the ruling provides Devas shareholders the ability to enforce the International Chamber of Commerce (ICC) judgement – worth over $1.3 billion – “if the Court is satisfied that additional evidence provides good cause to register the Judgment in other judicial districts, the Court will authorize…”
Let’s be clear what this means for Antrix and the Indian government: It is open season for Devas to hunt down and register the award anywhere in the U.S. where Antrix’s assets can be found, starting with, but not limited to, the Eastern District of Virginia.
Less than a week into 2022 and Devas shareholders are now full speed ahead in the enforcement process in the United States.
As expected, these efforts have been met by India’s ongoing scorched-earth campaign to block confirmation and evade payment of what is legally and rightfully owed to Devas shareholders. Good faith has been notably absent from the Indian government, and, while Devas shareholders remain committed to reaching an amicable settlement with Prime Minister Narendra Modi’s government, there appears to be no interest from New Delhi in complying with the legal judgments, and no respect for domestic or international rule of law.
Sham Proceedings in India
At the heart of India’s strategy is the liquidation of Devas, which was ordered by the Modi-apparatchik National Company Law Tribunal (NCLT) and subsequently confirmed by the National Company Law Appeals Tribunal (NCLAT).
To reach the point of liquidation, the Indian government fabricated allegations of fraud against Devas, which, to this day, are unsubstantiated – and co-opted the state apparatus to all but deny Devas’ corporate existence and expropriate the company’s assets.
Modi’s supporters have been active in the Indian press talking about the “illegality” of the Canadian actions. Anu Mehta of Arbiters Law, described as a “Delhi High Court Advocate”, but more aptly might be described as a Modi government mouthpiece, in his attempt to discredit the legal judgement out of Quebec actually described the NCLT proceedings beautifully, noting they are “illegal, arbitrary, vexatious and in contravention to the basic tenets of law being violative of the principles of natural justice.”
Mehta’s comments only further expose India’s blatant disregard for the rule of law and international legal process, which has been central to its all-out-war against Devas and illegal targeting of American citizens.
The Supreme Court is expected to rule any day now on an appeal by Devas to the liquidation order.
The expropriation of Devas is the centerpiece of the government’s strategy to evade the arbitral award, prevent further confirmation, and stymie efforts by Devas shareholders to attach the assets of Air India to satisfy the award. It will not work; Devas shareholders will continue to pursue our rights.
Trumped-Up Fraud Charges
The allegations of fraud are truly laughable and are easily disproven with only a cursory look at the facts.
For example, the Indian government claims that Devas procured its contract with Antrix, India’s space agency, through a collusive deal that was concealed from the central government. The fact of the matter is that the contract was negotiated extensively, and multiple high governmental committees, officials, and agencies were briefed. Furthermore, there is no way that the contract was ever hidden from the central government because they were the ones to announce the termination of the contract not because of fraud, but because India wanted to retain the spectrum it had leased under the agreement with Devas.
Additionally, the Indian government alleges that Devas officials were too inexperienced to have been awarded the contract with Antrix, yet the company’s investors and board of directors included individuals who had a collective 130 years of experience at the highest levels of the telecommunications industry.
Perhaps the greatest revelation from India’s all-out war against Devas is the Modi government’s blatant disregard for the rule of law and lack of adherence to the international rules of engagement on trade and business – a clear warning to investors that India is not a safe place in which to conduct business. Since multiple international tribunals ruled against India, the government chose to criminalize Devas, its employees, and its investors by deploying state agencies against them to execute office raids and seizures of bank accounts and records.
As Matthew McGill, lead counsel for the shareholders, said earlier this year, “India should not be allowed to plead for delay here in the United States, while back at home, India is on a ‘war footing’ and is pursuing bogus claims against Devas at a breakneck pace.”
Halfway across the globe, in September, the Indian government, through the Enforcement Directorate (ED), sought to freeze Devas assets in Mauritius under the India-Mauritius Mutual Legal Assistance Treaty, as revealed in recent filings in a Canadian court. The ED requested that Mauritian authorities “take such steps as necessary for obtaining the certified copies of documents from the banks authority, registration authority and tax authority wherever required and also freeze those properties…” This is just another example of the Indian government’s scorched-earth campaign to evade its legal obligations and strip Devas of its rights.
The tenacity shown by shareholders to enforce the award should come as no surprise. Jay Newman, senior advisor to Devas shareholders, said it best in recent months, “If the Indian government refuses to honor our awards, we will utilize all legal avenues, including asset seizure, to collect what we are owed.”