CL-2025-000046 - [2025] EWHC 1738 (Comm)

Each of the Mauritian Companies is a shareholder in an Indian company, Devas Multimedia Private Limited (“Devas”).

Devas was the counterparty to a contract dated 28 January 2005 with Antrix Corporation Limited (“Antrix”) (the commercial arm of the Indian Space Research Organisation) for the lease of radio spectrum on an “S-Band” satellite (the “Devas-Antrix Agreement”).The Agreement provided for Devas to lease satellite capacity from Antrix for the purpose of Devas offering certain digital multimedia broadcast services (“Devas Services” as defined therein).The Devas-Antrix Agreement was terminated by Antrix on 25 February 2011 on force majeure grounds.

In June 2011, following the termination of the Devas-Antrix Agreement, Devas commenced an ICC arbitration against Antrix seeking damages for lost profits arising out of the wrongful repudiation of the Agreement (the “ICC Arbitration”). That arbitration was seated in India. It culminated in an award of US$562.5 million being made in favour of Devas on 14 September 2015 (the “ICC Award”).

The Mauritian Companies, as shareholders in Devas, also commenced an arbitration against India on the basis of the India-Mauritius BIT, seated in The Hague, in connection with the termination of the Devas-Antrix Agreement (the “Initial BIT Arbitration”). That culminated in two further awards being made directly against India: (i) on 25 July 2016, an award on jurisdiction and the merits, finding that India had breached the BIT as alleged;and (ii) on 13 October 2020, an award on damages, ordering India to pay the Mauritian Companies US$111 million plus interest and costs (the BIT-1 Awards).

Antrix applied to the Indian courts to wind up Devas for fraud under s.271(c) of the Indian Companies Act 2013.

On 25 May 2021 Devas was placed into final liquidation by the National Company Law Tribunal. Devas appealed against that order to (i) the National Company Law Appellate Tribunal, which appeal was dismissed on 8 September 2021,and (ii) ultimately, to the Indian Supreme Court, which further appeal was dismissed on 17 January 2022 (the “Indian SC Judgment”). I have been told that the Supreme Court found that the Mauritian Companies were implicated in the fraud.

In parallel, Antrix commenced proceedings before the Delhi High Court to set aside the ICC Award under s.34 of the Indian Arbitration and Conciliation Act 1996 Act for fraud and/or for public policy reasons. Those proceedings were successful and culminated in the judgment of a Single Judge setting aside the Award on 29 August 2022. An appeal against that judgment was pursued and failed.

The Mauritian Companies, as represented by Gibson Dunn & Crutcher, describe the above proceedings in India as “attempts to unwind the above awards”. They say that the allegations of fraud “were notraised in the ICC Arbitration or the BIT-1 Arbitration but constructed responsively in liquidation proceedings brought against Devas in India by Antrix, acting on the instructions of India”. They say that the allegations were “endorsed by the Indian Supreme Court in a judgment dated 17 January 2022 and then relied upon by the Delhi High Court that set aside the ICC Award on the basis of the ISCJ’s findings”. They say this was “despite the fact that the alleged illegality determinations (i) were premised on prima facie findings without a trial, document production or cross-examination, and (ii) amounted to no more than an acceptance of the case advanced by Antrix.” I have been informed that the Dutch, Swiss, Canadian and Singapore courts which have considered the allegations of fraud have rejected them in the context of the ICC Award and the BIT-1 Awards and have said that the Indian Liquidation Proceedings violated fundamental principles of due process.

On 2 February 2022, following the Indian SC Judgment, the Mauritian Companies commenced the Arbitration – the subject of these proceedings – alleging that the liquidation of Devas was a further breach of the India-Mauritius BIT.

The Arbitration is seated in London and is taking place pursuant to the 1976 UNCITRAL Arbitration Rules as specified by Article 8(2)(d) of the BIT (the BIT-2 Arbitration). The BIT-2 Arbitration is progressing before an arbitral tribunal comprising Prof. Eduardo Zuleta, Prof. Dr. Stephan Schill and Justice Goda Raghuram (the Tribunal).

On 12 January 2023, India sought and obtained from the Supreme Court of Mauritius (Commercial Division) an ex parte interim injunction restraining and prohibiting the Mauritian Companies from pursuing the Arbitration (the “Anti-Arbitration Injunction”).The Mauritian Companies, as represented by Gibson Dunn & Crutcher, consider that the Anti-Arbitration Injunction was not obtained in a manner compliant with Mauritian law,nor with international law.

By an Interim Award dated 10 March 2023, the Arbitral Tribunal noted that the Parties had a duty to refrain from taking any action or measure that may affect the procedural integrity of the arbitration, aggravate or extend the dispute, or that may interfere with the Tribunal’s mandate to adjudicate international justice, under the Treaty, in the arbitration. The Tribunal held, by a majority, that the Respondent to the Arbitration, India, had breached that duty by pursuing and enforcing the Anti-Arbitration Injunction and ordered the Respondent to cease, during the pendency of this arbitration, its breaches of that duty; see the Decision at paragraph 98 of the Interim Award. The decision was supported by extensive reasoning which spanned paragraphs 40-97 of the Interim Award.

On 28 April 2023, the Registrar (in Mauritius) applied under ss.215(9)(a) and (e) of the Mauritian Insolvency Act 2009 (“IA 2009”) to place each of the Mauritian Companies into administration.The Supreme Court of Mauritius (Commercial/Bankruptcy Division) granted the application and appointed the Administrator by the Administration Orders. I have been referred to the Administration Orders. They appear to have been made ex parte.

The Administrator was appointed “for the purposes of (i) taking control of the company’s business property and affairs and (ii) performing any function and exercising any power, that the company or any of its officers could perform or exercise if the company were not in administration, including but not limited to representing the company in all cases and/or proceedings, whether local or abroad”. I have been informed that as a matter of Mauritian law the Administrator has sole authority to act on behalf of the Mauritian Companies and to the exclusion of their directors.

The Mauritian Companies, as represented by Gibson Dunn & Crutcher who take their instructions from the directors and shareholders of the Mauritian Companies, have sought to appeal the Administration Orders and to stay them in the interim. That approach has, to date, not been successful: