Antrix Corporation Ltd (“Antrix”), Indian national company responsible for promoting and marketing the Indian Space Agency’s products and services, entered into, with the Indian company Devas Multimedia Private Ltd (“Devas”), an agreement for the provision of a spectrum on the “band S” in exchange for the payment of a sum denominated “upfront capacity reservation fees”. The agreement provided for the application of Indian law, arbitration as a dispute resolution mechanism and its execution was subject to the obtention of diverse authorizations.
Invoking a decision of the Indian Government to hold the band S to strategic activities, Antrix terminated the agreement highlighting the impossibility to obtain necessary authorizations, therefore constituting a force majeure. Antrix then restituted the entire capacity reservation fees that it perceived. Devas refused this payment and commenced an ICC arbitration which closed with the issuance of an award condemning Antrix to pay damages amounted to USD 562,5 million to Devas for abusive termination of the agreement. This award was rendered enforceable by an ordinance of the president of the tribunal de grande instance of Paris, which Antrix appealed.
Antrix submits that (i) the arbitration clause expressed the parties’ will to conduct an ad hoc arbitration and not an ICC arbitration as its terms varied from the terms recommended by the ICC and that it was deprived from its right to appoint an arbitrator, which resulted in the irregular constitution of the arbitral tribunal, which lacked jurisdiction. Devas replies that Antrix did not submit this argument during the arbitration proceedings and that therefore such plea is inadmissible. Antrix also submits that (ii) the arbitral tribunal excluded force majeure based on an argument that was not debated between the parties, whereby Antrix should have ensured that the Cabinet Committee on Security avoids to take the decision in respect of band S, which was, in addition to this, an inducement to corruption.
The Court confirmed the ordinance of enforcement of the award and estimated that the plea regarding the lack of jurisdiction of the arbitral tribunal and the irregularity of its constitution is inadmissible considering that it is actually depending on the argumentation developed before the arbitrators, and not on prior or subsequent procedural facts, that the Court appreciates if a party is deemed to have waived its right to raise an irregularity. The Court therefore ruled that Antrix is deemed to have waived its right to raise irregularities that it did not raise before the arbitral tribunal.
On the plea regarding the breach of the adversarial principle and the international public policy in the appreciation of force majeure, the Court decided that the adversarial principle was not breached as the award was based on a contractual provision that was debated on the basis of the facts raised by the parties and that no force majeure case was constituted in this case because Antrix could have prevented the adoption of the CCS decision to terminate the agreement as the president of Antrix had taken diverse measures that led to the decision of termination.