On June 5, 2025, the U.S. Supreme Court held in a unanimous decision in CC/Devas (Mauritius) Ltd. v. Antrix Corp. Ltd. that the Foreign Sovereign Immunities Act (FSIA) does not require plaintiffs to show that a foreign state or its agencies or instrumentalities have the type of "minimum contacts" with the United States set out in the International Shoe v. Washington line of cases to establish personal jurisdiction over that defendant. Instead, the Court confirmed that personal jurisdiction exists under the FSIA when "an immunity exception applies and service is proper."1 In so ruling, the Court reversed the Ninth Circuit, bringing it in line with other circuits that had reached the same conclusion as the Supreme Court.
The Supreme Court declined, however, to decide three important questions that Antrix had raised to the Court: (1) whether the Due Process Clause of the Fifth Amendment requires a showing of minimum contacts before a federal court can exercise personal jurisdiction over a foreign state or its agencies or instrumentalities; (2) whether the FSIA's arbitration exception to foreign sovereign immunity applies only to arbitration agreements that concern commerce within or with the United States; and (3) whether this case, which involves parties located in India engaged in commerce in India under the laws of India, should be dismissed under forum non conveniens. The Supreme Court remanded for the Ninth Circuit to address these issues in the first instance.
Plaintiffs considering or pursuing litigation against foreign states or their agencies or instrumentalities should be aware that, although the Supreme Court now has ruled that "minimum contacts" are not required by the FSIA, the Ninth Circuit will soon decide whether such contacts may be required by the Constitution. If the Ninth Circuit were to extend Fifth Amendment due process protections to a foreign state's instrumentalities, plaintiffs bringing suit against foreign state-owned corporations under the FSIA in the Ninth Circuit would need to show minimum contacts between such corporations and the United States to establish jurisdiction. If Antrix were to prevail on its arguments that the FSIA's arbitration exception does not apply where the arbitration agreement at issue does not concern commerce with or within the United States, or that a petition to confirm a foreign arbitration award involving foreign parties engaged in foreign commerce should be dismissed under forum non conveniens, this would present significant challenges for those seeking to confirm and enforce arbitration awards against foreign states and potentially undermine the United States as an attractive jurisdiction for the enforcement of such awards.
This alert provides an overview of the Supreme Court's recent decision and further explains the potential impacts of this decision on litigants seeking to bring suit against foreign state defendants.
A. Background
Plaintiffs in CC/Devas sought to establish jurisdiction in U.S. federal court to confirm and enforce a foreign arbitration award against the Indian government's instrumentalities. The arbitration award at issue arose out of a long-running dispute between Devas Multimedia Private Ltd., a privately owned Indian corporation, and Antrix Corp. Ltd., the Indian government's wholly owned space and satellite company, over the Indian government's repudiation of a contract with Devas regarding the construction and launch of a new satellite network.2
Devas submitted the dispute to a foreign arbitral tribunal applying Indian law, pursuant to the arbitration clause in the underlying contract.3 The arbitration resulted in a $562.5 million award in favor of Devas, which then sought to confirm and enforce the award in the U.S. District Court for the Western District of Washington.
The district court held that personal jurisdiction existed as to Antrix, an instrumentality of the Indian government, because the statutory requirements for personal jurisdiction set out in the FSIA's long-arm provision had been met, specifically that: (1) one of the FSIA's exceptions to sovereign immunity applied—here, the arbitration exception under 28 U.S.C. § 1605(a)(6), which abrogates immunity in an action against a foreign state to confirm an arbitral award; and (2) service was properly made.[4] According to the district court, because Antrix conceded that it was an agency or instrumentality of the Indian government, it was not a "person" entitled to due process rights under the Fifth Amendment, and thus no minimum contacts analysis was required.5 In the alternative, the district court concluded that Devas had shown that Antrix had sufficient contacts with the United States to satisfy due process.6 As a result, the district court confirmed the arbitration award and, due to interest on the award, issued a $1.3 billion judgment against Antrix.7
The Ninth Circuit reversed the district court's decision, concluding in accordance with existing Ninth Circuit precedent that the FSIA requires a showing that a foreign state's instrumentality has the type of "minimum contacts" with the United States set out in International Shoe v. Washington and its progeny for purposes of personal jurisdiction.8 The Ninth Circuit's approach split with various other circuits, such as the D.C. and Second Circuits, which have held that personal jurisdiction is satisfied as to a foreign state defendant so long as the two requirements expressly set out in the FSIA—i.e., the establishment of an immunity exception and the effectuation of service—have been met.9 Having based its holding on statutory grounds, the Ninth Circuit did not reach the constitutional arguments that Antrix had also advanced.
B. The FSIA Does Not Require "Minimum Contacts" to Establish Personal Jurisdiction
The question before the Supreme Court was whether the FSIA requires a showing of "minimum contacts" with the United States before a court can exercise personal jurisdiction over a foreign state defendant. Justice Alito, writing for a unanimous Court, answered in the negative, based on a straightforward interpretation of the text and structure of the FSIA.
The Court began with the plain language of the FSIA's long-arm provision, which provides that personal jurisdiction "shall exist as to every claim for relief over which the district courts have [subject matter] jurisdiction under subsection (a) where service has been made under section 1608 of this title."10 According to the Court, the most natural reading of this provision is that personal jurisdiction is "'automatic' whenever (1) 'an exception to immunity applies' and (2) 'service of process has been accomplished.'"11 The Court went so far as to phrase its holding in "even simpler terms": "subject matter jurisdiction plus service of process equals personal jurisdiction."12
The Court acknowledged that "the FSIA's immunity exceptions themselves," which establish subject matter jurisdiction, "require varying degrees of suit-related domestic contact before a case may proceed," and these contacts are thus required to establish personal jurisdiction.13 But because there is no separate, explicit reference to "minimum contacts" in the statute, the Court refused to "add in what Congress left out," explaining that, to the extent some or all FSIA exceptions satisfy International Shoe, "it is only because the exceptions Congress wrote happen to meet that standard, not because [the FSIA's long-arm provision] secretly incorporated" a minimum-contacts requirement.14
The Court also reasoned that the structure of the FSIA reinforces its interpretation that the FSIA does not require minimum contacts. Through the FSIA, Congress provided a comprehensive framework for determining whether foreign states are amenable to suit in the United States by tying immunity and jurisdiction together into a single inquiry.15 The Court explained that the Ninth Circuit's interpretation created a gap in this framework, attaching a minimum-contacts requirement to only the FSIA's jurisdictional provision and thereby "weaken[ing] the link Congress forged among foreign sovereign immunity, subject-matter jurisdiction, personal jurisdiction, and the enumerated exceptions."16 The Court also concluded that the FSIA's legislative history reinforced its judgment that, as a statutory matter, personal jurisdiction exists when an immunity exception applies and the plaintiff has effectuated proper service.
Having resolved the question before it on statutory grounds, the Court declined to address Antrix's alternative arguments, including (1) that the Due Process Clause of the Fifth Amendment itself requires a showing of minimum contacts between a foreign state or its agencies or instrumentalities and the United States; (2) that the FSIA's arbitration exception applies only where the agreement to arbitrate concerns commerce with or within the United States; and (3) that the case should be dismissed under forum non conveniens. The Court left Antrix's alternative arguments for consideration on remand, to the extent those arguments have not been forfeited or waived.17
C. Key Takeaways
The Supreme Court's decision in CC/Devas highlights several important points for plaintiffs contemplating or pursuing litigation in U.S. courts against foreign states or their agencies or instrumentalities, as well as for parties that are considering entering into arbitration agreements or arbitration proceedings with foreign states or their agencies or instrumentalities:
- Personal jurisdiction under the FSIA is established once one of the statute's immunity exceptions has been met and service has been properly made on the foreign state or its agency or instrumentality. This means that contacts between the foreign state defendant and the United States are required under the FSIA, if at all, only to the extent required to establish an exception to immunity. No additional showing of the type of "minimum contacts" set out in the International Shoe line of cases is required under the FSIA.
- The Court's holding that the FSIA does not require a separate showing of "minimum contacts" applies to suits brought under any of the immunity exceptions in the FSIA, not merely under the arbitration exception.
- The Supreme Court expressly left open for consideration on remand whether the Due Process Clause of the Fifth Amendment independently requires "minimum contacts" to establish personal jurisdiction in U.S. court over a foreign state or its agency or instrumentality.18 If the Ninth Circuit decides that Antrix has not waived or forfeited this argument, the Ninth Circuit is free to hold that jurisdiction is lacking as a constitutional matter, regardless of the FSIA's personal jurisdiction requirements. Other circuits, including the D.C. Circuit, already hold that a foreign state's agencies and instrumentalities are "persons" under the Fifth Amendment's Due Process Clause unless the state "ha[s] plenary control over" that entity.19 The Ninth Circuit could adopt a similar holding with respect to Antrix, in lieu of applying the Fifth Amendment to all foreign state entities, including the foreign sovereign itself.
- If the Ninth Circuit holds that constitutional due process is owed to foreign states and/or their agencies and instrumentalities, it will then need to decide whether the process that is due is satisfied by the process provided in the FSIA, or whether an additional showing of "minimum contacts," as set out in the International Shoe line of cases, is required. A decision that the Fifth Amendment requires an additional showing of "minimum contacts" would raise the bar that plaintiffs must meet to establish jurisdiction over a foreign state defendant.
- The Supreme Court also declined to address Antrix's arguments that the FSIA's arbitration exception requires that the relevant arbitration agreement concern commerce with or within the United States, and that petitions to confirm a foreign arbitration award involving foreign parties engaged in foreign commerce should be dismissed under forum non conveniens. If the Ninth Circuit accepts and agrees with either of these arguments on remand, and if the Supreme Court later adopts them on further review, this could undermine the United States' standing as an attractive jurisdiction for the enforcement of arbitration awards involving foreign states or their agencies or instrumentalities.20 In particular, it would make it more difficult for at least some arbitration award creditors holding awards issued against foreign states or their agencies or instrumentalities to confirm such awards in the United States. This in turn would deprive the award creditors of judgments that they could execute against the defendant's property in the United States to satisfy the award, cutting off an important avenue for relief where a foreign state defendant refuses to comply with an arbitration award.
In sum, the Supreme Court's decision confirms that the FSIA's personal jurisdiction requirements are satisfied as to a foreign state or its agency or instrumentality if an exception to sovereign immunity applies and service is proper. The decision leaves open the potential that "minimum contacts" are separately required by the Due Process Clause of the Fifth Amendment, but this will turn on whether a foreign state or its agency or instrumentality is entitled to the protections of the U.S. Constitution and, if so, whether the process due is that provided by the FSIA or whether traditional International Shoe protections apply.
Footnotes
1. CC/Devas (Mauritius) Ltd. et al. v. Antrix Corp Ltd. et al., No. 23-1201, slip op. at 13 (U.S. June 5, 2025).
2. Id. at 2-3.
3. Id. at 3.
4. 28 U.S.C. § 1330(b); Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., 2020 WL 6286813, at *3 (W.D. Wash. Oct. 27, 2020).
5. Devas, 2020 WL 6286813, at *3.
6. Id. at *3-4.
7. Id. at *7.
8. Devas Multimedia Private Ltd. v. Antrix Corp., 2023 WL 4884882, at *1 (9th Cir. Aug. 1, 2023).
9. See TMR Energy Ltd. v. State Property Fund of Ukraine, 411 F.3d 296, 303 (D.C. Cir. 2005); Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 99 (D.C. Cir. 2002); Gater Assets Ltd. v. AO Moldovagaz, 2 F.4th 42, 49 (2d Cir. 2021); Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 694 (7th Cir. 2012); S & Davis Int'l, Inc. v. Republic of Yemen, 218 F.3d 1292, 1303 (11th Cir. 2000).
10. 28 U.S.C. § 1330(b).
11. Devas, No. 23-1201, slip op. at 8.
12. Id.
13. Id. at 9.
14. Id. at 9.
15. Id. at 9-10.
16. Id. at 10.
17. Antrix had previously conceded its constitutional due process argument in the lower courts, and argued for the first time in merits briefing before the Supreme Court that the arbitration exception only applies where the arbitration agreement concerns commerce with or within the United States. The Court welcomed Antrix to litigate these arguments on remand "consistent with principles of forfeiture and waiver." Devas, No. 23-1201, slip op. at 13.
18. The Supreme Court is considering a related question in Fuld v. Palestine Liberation Organization, Nos. 24-20, 24-151, which asks whether the Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA), which provides that the Palestine Liberation Organization (PLO) and Palestinian Authority (PA) are deemed to have consented to personal jurisdiction if they engage in certain conduct outside the United States, violates the Due Process Clause of the Fifth Amendment. The parties argued the case before the Supreme Court on April 1, 2025, and as of the date of this publication, the Supreme Court has not issued its decision.
19. TMR Energy Ltd. v. State Property Fund of Ukraine, 411 F.3d 296, 301 (D.C. Cir. 2005).
20. See generally G. Born, International Civil Litigation in United States Courts, "Chapter 13, International Commercial Arbitration and U.S. Courts: An Overview," (7th ed.) 2022.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
