Do Foreign States Deserve Due Process? “Minimum Contacts” and the Future of International Arbitration

Devas v. Antrix considers whether foreign governments are protected by the Fifth Amendment’s Due Process Clause in the context of international arbitrations. The Ninth Circuit held that Antrix, an Indian government-owned corporation, lacked sufficient “minimum contacts” to meet the Due Process Clause and therefore dismissed attempts by petitioner Devas to enforce an arbitration award from India. Devas, supported by the U.S. Department of Justice, the U.S. Chamber of Commerce, and leading scholars of international arbitration, is asking the Court to reverse arguing that U.S. courts need not consider due process protections for foreign states, and are authorized under the Foreign Sovereign Immunities Act to enforce such awards even without a nexus to the United States.While there are strong originalist and textualist arguments in favor of granting foreign states constitutional due process protections, the Court’s decision to grant such protections could undercut U.S. treaty obligations to enforce foreign arbitral awards and the broader international system for commercial arbitration. It could also affect other litigation against foreign states in U.S. courts, including lawsuits seeking to recover for state-sponsored terrorist attacks. This panel will debate these questions and offer explanations of the ruling’s possible impacts.