Devas Facts Events Timeline
India decides that it wants back the S-band spectrum that is the subject of the Antrix-Devas Agreement and so designates Dr K. Radhakrishnan, former Secretary of Space and Chairman of ISRO, as a “one-person committee to investigate” the Devas Agreement. The committee of one, Dr B. N. Suresh of the Indian Institute of Space and Technology, concludes (the “Suresh Report”) in May 2010 that there was no wrongdoing by Devas.
Ramachandran Viswanathan WS Page 6
Antrix falls into material breach of the Devas Agreement by failing to launch any satellites by July 2010.
Dissatisfied with the result of the Suresh Report, Dr K. Radhakrishnan seeks a formal opinion of the Additional Solicitor General (ASG) of India, Shri Mohan Parasaraan. The ASG advises that the clause for termination in the Devas Agreement “cannot be invoked at this stage for the purpose of terminating the contract.” Rather, Parasaraan advises that the Government of India should manufacture a “force majeure” event in the form of a government policy decision to justify termination of the contract: “[i]n my view, instead of the Department of Space directing Antrix to terminate the contract, it will be advisable from a legal perspective that the direction comes from the Department of Space on the basis of a governmental policy decision.” Parasaraan writes further that the Devas Agreement falls “within the doctrine of force majeure.”
Ramachandran Viswanathan WS Page 7
Devas leadership writes letter to members of the Space Commission extolling the virtues of the Devas Agreement, including how the deal will deliver broadband multimedia services to hundreds of millions of Indians that were currently without access. India’s broadband deployment at this time was still very limited.
Ramachandran Viswanathan WS Page 61
Current and former U.S. officials, led by former U.S. Secretary of State, Madeleine Albright and former U.S. National Security Adviser, Sandy Berger, express concerns over the repeated delays with the Indian Foreign Ministry. Guido Westerwelle, the German Foreign Minister expresses similar concerns.
Ramachandran Viswanathan WS Page 64
Devas responds to Antrix’s February 25 termination letter, and seeks a meeting with senior leaders of Antrix/ISRO. Antrix/ISRO do not respond until six weeks later on April 15 and encloses payment of US$ 13 million as “reimbursement.” Devas returns the check.
Ramachandran Viswanathan WS Page 71
Devas initiates an arbitration action against Antrix following its decision to unlawfully terminate the Devas Agreement. It is commenced before a tribunal seated in New Delhi under the rules of the International Chamber of Commerce (ICC), as per Article 20 of the arbitration provision of the Devas Agreement.
One month after Devas filed the ICC claim, India’s Office of the Registrar of Companies (ROC) demands records, books, and files from Devas for immediate inspection. The ROC continues to request various documents for inspection, involving categories of information completely irrelevant to the Devas deal. A Delhi High Court rules that the ROC cannot take any additional coercive steps against Devas. Nonetheless, the ROC issues eight new notices to Devas and its directors.
Ramachandran Viswanathan WS Paragraphs 217, 218
Harassment continues by the Indian Department of Revenue, Enforcement Directorate (ED). During the years 2011-2013, the ED begins issuing summonses to various Devas directors, demanding personal tax, banking, and financial documents along with personal appearances.
Ramachandran Viswanathan WS Paragraphs 220
The Indian Tax Authority (ITA) orders Devas to pay an additional Rs. 34,575,701 / US$471,917 for assessment year 2009-2010.
Ramachandran Viswanathan WS Paragraphs 222
The Mauritius‑based shareholders initiate the second of three arbitrations against the Republic of India before a tribunal seated at The Hague, in a proceeding administered by the Permanent Court of Arbitration under the Arbitration Rules of the United Nations Commission on International Trade Law (“UNCITRAL Rules”).
Deutsche Telekom, an investor in Devas, initiates the third of the three arbitrations against the Republic of India before an UNCITRAL tribunal seated in Geneva, Switzerland, also under the UNCITRAL Rules.
The UNCITRAL tribunal in The Hague issued the “Merits Award” in favor of Mauritian shareholders of Devas finding the Government of India liable for “unlawful expropriation” of and “failure to provide fair and equitable treatment” to the Mauritian shareholders’ investments in Devas, in violation of India–Mauritius Bilateral Investment Promotion and Protection Agreement, known as the BIT Award. Articles 6 & 7.
The ED freezes bank accounts and other assets of Devas in India. The ED also seizes the accounts of Devas personnel.
The UNCITRAL tribunal in Geneva presiding over the arbitration initiated by Deutsche Telekom concludes that India intentionally misled Devas and wrongfully terminated the Devas Agreement, which made the country liable under the Bilateral Investment Treaty with Germany for “failing to provide “fair and equitable treatment” to Deutsche Telekom’s investments.
UNICTRAL Interim Award to Deutsche Telekom. Paragraph 424(b).
The UNCITRAL tribunal in Geneva issued a final arbitral award to Deutsche Telekom totaling US$132 million plus accruing interest until paid in full.
The BIT Award as to Quantum was made by the UNCITRAL tribunal in The Hague on October 13, 2020, ordering the Government of India to pay the Mauritian shareholders of Devas damages totaling US$ 160 million plus accrued interest, including:
- $50,497,600 as compensation to Plaintiff CC/Devas (owner of 17.06% of the issued share capital of Devas)
- $10,300,800 as compensation to Plaintiff DEMPL (owner of 3.48% of the issued share capital of Devas)
- $50,497,600 as compensation to Plaintiff Telcom Devas (owner of 17.06% of the issued share capital of Devas)
- interest on the above amounts “at a rate of the six-month USD LIBOR + 2 percentage points, compounded semi-annually from February 17, 2011 until the date of full payment”
- $10,000,000 to Plaintiffs for their costs, including legal fees, plus interest at a rate of the six-month USD LIBOR + 2 percentage points compounded semi-annually from the date of the Award until the date of full payment
The U.S. District Court Western District of Washington confirmed the ICC Arbitral Award. Antrix had challenged the court’s jurisdiction based on the Foreign Sovereign Immunities Act (FSIA), but the federal court rejected that argument because Antrix was an “agency or instrumentality” of India, a foreign state that is a signatory to the New York Convention. In confirming the Award, the U.S. District Court Western District of Washington found the “ICC panel’s Award to be exceedingly thorough and well-reasoned” and rejected Antrix’s “assertions that the ICC panel appointments violated the Agreement’s arbitral procedures, that enforcement of the Award would be contrary to domestic public policy, and that the ICC panel exceeded its powers by failing to apply well-established Indian law.”
On the same day, with few options left and sensing defeat, the Government of India moved to change Indian arbitration law. The order, issued by the Indian Ministry of Law and Justice, amended the Indian Arbitration and Conciliation Act of 1996 to require that Indian courts “unconditionally” stay any arbitral award when there is a prima facie showing that the “arbitration agreement or contract which is the basis of the award . . .was induced or effected by fraud or corruption.”
India’s Finance Minister spearheads an Inter-Ministerial Monitoring Committee to expedite proceedings against Devas “on a war-footing.”
The U.S. District Court Western District of Washington officially entered judgment worth approximately US$ 1.3 billion in favor of Devas on the ICC Award.
In January 2021, the Mauritian shareholders of Devas sought confirmation of the BIT Award in the U.S. District Court for the District of Columbia. After India failed to respond or acknowledge Devas’s attempts to serve it pursuant on January 21, 2021, and March 26, 2021, Devas accomplished service on May 28, 2021. India’s response is due by July 27, 2021.
CC/Devas v. Air India. Paragraph 3.
Antrix amends its set aside application to include newfound allegations of fraud – allegations it did not raise in the arbitration proceedings, nor its initial set aside application, nor the US confirmation proceedings.
Antrix seeks authorization from its parent, the Indian State, for authorization under the National Companies Act to bring a winding‑up petition against Devas, to which Antrix now owes US$ 1.3 billion.
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.”
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 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.
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.
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.
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.
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.
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.