A court in the United States (US) has directed the commercial arm of Indian Space Research Organisation (ISRO)—Antrix Corporation—to pay US$1.2 billion in compensation to a Bengaluru-based company Devas Multimedia. The ISRO’s arm has been asked to pay the compensation for cancelling a satellite deal in 2005.
Notably, as per the deal, Antrix Corporation had agreed to build, launch and operate two satellites and to make available 70 MHz of S-band spectrum to Devas Multimedia. The Bangalore-based start-up had planned to use to offer hybrid satellite and terrestrial communication services throughout India.
However, Antrix Corporation terminated the agreement in February 2011. The start-up initiated legal proceedings against Antrix Corporation for terminating the agreement and went up to the Supreme Court.
Notably, on February 25, 2011, Antrix issued a termination notice to Devas, which among other things stated that the policy decision was of the central government, acting in its sovereign capacity in the event of force majeure, which was an occurrence on February 23, 2011.
“The scope and duration of the said decision cannot be anticipated. It is likely to be indefinite. It is not possible for Antrix to take any effective step to resume the obligations under the agreement,” Antrix said.
Devas disputed Antrix’s repudiation of the agreement and sought to conduct discussions among senior management as contemplated by that agreement.
In June 2011, Devas commenced arbitration proceedings under the Rules of Arbitration of the International Chamber of Commerce.
Antrix initially refused to participate in the arbitration and obtained an injunction from the Indian Supreme Court enjoining the arbitration. After one year, the Supreme Court lifted the injunction, allowing the arbitration to proceed. Thereafter, Antrix participated fully in the arbitration.
US court’s verdict
In his order dated October 27, Judge Thomas S Zilly, US District Judge, Western District of Washington, Seattle, ruled that Antrix Corporation pay compensation of USD562.5 million to Devas Multimedia Corporation and the related interest rate amounting to a total of USD1.2 billion.
In its lawsuit filed in the US District Court, Devas Multimedia said three separate international tribunals and nine different arbitrators have found the termination of the Devas-Antrix agreement to have been wrongful, with one of the tribunals describing it as “conduct ”which shocks, or at least surprises, a sense of juridical propriety” and another finding it to be “a clear breach of simple good faith” by India.
Antrix Corporation cited jurisdictional issues
Antrix, in November 2018, had sought the dismissal of the lawsuit citing jurisdictional issues. The court, however, asserted that it had jurisdiction over the issue, but stayed the matter for one year and asked the two to file a joint status report by April 15, 2020.
On July 16, 2020, both Devas and Antrix filed the instant motion, a Joint Status Report in which they disputed whether the court should lift or extend the stay, and, if the latter, whether Antrix be required to post security.
Arguments of Devas Multimedia
Devas Multimedia contended that the US court has jurisdiction over these cases, as Antrix engages in business in this district and across the United States.
Antrix and Seattle headquartered Spaceflight Industries have an agreement to provide satellite launch services using India’s PSLV rocket.
Antrix and RBC Signals LLC, which is headquartered in Redmond, Washington, have a worldwide agreement to provide space communications services to satellite operators.
Antrix in 2018 launched a satellite for Redmond, a Washington-based Planetary Resources.
Antrix agreed in 2015 to launch two satellites for Colorado-based PlanetiQ. Antrix is contracted with DigitalGlobe, which has headquarters in Colorado and other locations in Florida, Virginia and Washington to procure certain satellite data, which is then distributed by the Indian Space Research Organisation’s National Remote Sensing Centre.
Devas said that after the initial signing of the agreement, the two companies performed in good faith for five years. Among other things, in May 2009, Dr Appanna Bhaskarnaryana, the Director of the Satellite Communications Program Office of ISRO, spent four to five weeks in the US with Devas personnel meeting with Hughes Networks, Sirius XM SkyTerra, Qualcomm and ICO North America to understand the technologies used by, and operation of hybrid satellite-terrestrial operators providing telecommunications services.
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