U.S. Supreme Court clarifies statutory requirements for establishing personal jurisdiction over foreign sovereigns in U.S. courts but questions remain

In its recent opinion in CC/Devas (Mauritius) Ltd. v. Antrix Corp., 605 U.S. ____ (2025), the Supreme Court of the United States held that a court has personal jurisdiction over a foreign state under the Foreign Sovereign Immunities Act (“FSIA”) when (i) an FSIA exception to immunity applies and (ii) the foreign sovereign has been properly served under the FSIA.  The Ninth Circuit had interpreted the FSIA as also requiring the plaintiff to “prove that the foreign state has made ‘minimum contacts’ with the United States sufficient to satisfy the jurisdictional test set forth in International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945), and its progeny.”  Id. at *1-2.  The Supreme Court unanimously disagreed based on the plain text of the statute.

The Court’s decision resolves one question of statutory construction—how to interpret the FSIA’s personal-jurisdiction provision—as to which different federal courts had reached different answers.  The Court’s opinion resolves this circuit split and establishes a uniform interpretation of the FSIA.  However, the Court expressly declined to decide whether that showing would suffice under the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution.  There will, therefore, likely continue to be litigation over when personal jurisdiction exists in U.S. courts over foreign state-owned corporations.

Background

The FSIA is “the sole basis for obtaining jurisdiction over a foreign state in [U.S.] courts.” Argentine Republic v. Amerada Hess Shipping Corp., 488 U. S. 428, 434 (1989).  It provides that foreign states—which it defines to include state-owned corporations and other agencies and instrumentalities of the state—are immune from the jurisdiction of U.S. courts except to the extent that one of the FSIA’s exceptions to immunity applies, subject to international agreements to which the U.S. was a party at the time of the FSIA’s enactment. 28 U.S.C. §§ 1603, 1604. One of those exceptions relates to actions commenced to confirm or enforce an arbitral award.  28 U.S.C. § 1605(a)(6).

The FSIA’s jurisdiction provision, 28 U.S.C. § 1330, has two parts.  Subsection (a) provides that federal courts have subject-matter jurisdiction over “any claim for relief in personam with respect to which the foreign state is not entitled to immunity” under one of the enumerated exceptions.  And subsection (b) states that personal jurisdiction exists “as to every claim for relief over which the district courts have jurisdiction under subsection (a)”—i.e., for every claim subject to an immunity exception—and “where service has been made under” the FSIA’s provisions concerning service of process.              

Antrix Corporation Ltd. (“Antrix”) is a company owned by the Republic of India, which serves as the commercial arm of the Indian Space Research Organization and is tasked with “promoting and commercially marketing the products and services emanating from the Indian Space Programme.” Antrix Corp., slip op. at 2 (cleaned up).  In 2005, Antrix signed a contract with a privately owned Indian company, Devas Multimedia Private Ltd. (“Devas”), under which Antrix would lease capacity to Devas on a new satellite network to be built and launched by Antrix. 

In 2011, Antrix terminated its contract with Devas, invoking the contract’s force majeure clause following a determination by the Indian government that it needed greater capacity for itself on the satellite network. Devas commenced an arbitration under the International Chamber of Commerce (“ICC”) rules pursuant the contract’s arbitration provision, obtaining an award (the “Award”) for $562.5 million in damages, plus interest, in 2015.  

Three years later, Devas sought to confirm the Award in the U.S. District Court for the Western District of Washington. The district court confirmed the Award and entered a $1.29 billion judgment against Antrix.  It held that it had subject-matter jurisdiction under the FSIA’s arbitration exception and personal jurisdiction because Antrix had been properly served.

A panel of the Ninth Circuit reversed.  It reasoned that “personal jurisdiction under the FSIA requires a traditional minimum contacts analysis.”  Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., 2023 WL 4884882, at *1 (9th Cir. Aug. 1, 2023).  The minimum-contacts test is drawn from Supreme Court cases concerning the constitutional requirements of the Due Process Clauses of the Fifth and Fourteenth Amendments.  Because Antrix lacked sufficient suit-related contacts with the United States, the Ninth Circuit concluded that the confirmation suit must be dismissed.

The Court’s Opinion

The Supreme Court reversed.  It held that nothing in the text of the FSIA’s personal-jurisdiction provision requires a minimum-contacts analysis.  Writing for a unanimous Court, Justice Alito explained that, under “the most natural reading” of Section § 1330(b), personal jurisdiction over a foreign sovereign is “automatic whenever (1) an exception to immunity applies and (2) service of process has been accomplished.” Antrix Corp, slip op. at 8 (cleaned up). The Court observed that Section 1330(b) nowhere mentions “minimum contacts,” and Congress’s purpose in enacting the FSIA was to “‘clarify the governing standards,’ not hide the ball.” Id. at 9 (quoting Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 488 (1983)).

That is not to say that contacts between the foreign sovereign and the United States are irrelevant; as the Court highlighted, several immunity exceptions under the FSIA “themselves require varying degrees of suit-related domestic contact before a case may proceed.” Id. at 9 (citing 28 U.S.C. §§ 1605-1607). But “[t]o the extent that some or all FSIA exceptions satisfy International Shoe[’s minimum-contacts requirement], it is only because the exceptions Congress wrote happen to meet that standard, not because §1330(b) secretly incorporated [the Court’s] jurisdictional due-process cases.” Id.

Comments

The Court’s decision helps to clarify the statutory requirements for jurisdiction under the FSIA, including for the purpose of enforcing arbitral awards.  The Court’s analysis looks only to the text of the FSIA.  This decision resolves a long-running conflict between the courts of appeals about whether that statutory provision only requires an immunity exception and proper service (as the Second and D.C. Circuits had held) or also requires a showing of minimum contacts (as the Ninth Circuit had held).  The Supreme Court’s ruling creates a nationwide rule that the FSIA does not require a showing of minimum contacts. 

But the Supreme Court left an important question unanswered.  It did not decide whether, even if the FSIA’s statutory requirements are satisfied, the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution separately require a showing of minimum contacts before a court may exercise jurisdiction.  The Supreme Court has long interpreted those provisions to limit the power of U.S. courts to exercise jurisdiction over the parties to a case.  Under those cases, a court can take jurisdiction only if the defendant has “contacts” with the forum such that “the maintenance of the suit is reasonable” and “does not offend traditional notions of fair play and substantial justice.”  Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024 (2021) (cleaned up).  That analysis focuses “on the nature and extent of the defendant’s relationship to the forum” and often turns on nuances of the particular facts alleged in a given suit.  See id. (cleaned up) (summarizing tests). 

Every court of appeals to have examined this question has held that foreign state-owned corporations (as distinct from the sovereign state itself) are entitled to personal jurisdiction protections under the Due Process Clause, just like all other persons are. See Gater Assets Ltd. v. AO Moldovagaz, 2 F.4th 42, 65-66 (2d Cir. 2021); First Inv. Corp. of Marshall Islands v. Fujian Mawei Shipbuilding, Ltd., 703 F.3d 742, 747-48, 752-56 (5th Cir. 2012); GSS Grp. Ltd v. Nat’l Port Auth., 680 F.3d 805, 815-17 (D.C. Cir. 2012). Award creditors in these jurisdictions must therefore show minimum contacts between the foreign corporation and the United States to establish personal jurisdiction. So while the Supreme Court’s decision in Antrix is a win for award-confirmation plaintiffs, it likely will not spell the end of litigation over when U.S. courts can constitutionally exercise personal jurisdiction over foreign state-owned corporations.