USA Trends and Developments Contributed by: John Curley and Milan Sova, Hoguet Newman Regal & Kenney
Broader implications Devas v Antrix underscores the ability of judgment creditors to pursue foreign sovereigns in US courts without having to establish personal jurisdiction where an exception to immunity under the FSIA applies and proper service is made. The Supreme Court clarified that traditional due process constraints do not apply under the statutory procedural framework of the FSIA. While the ruling does not expand substantive tools for judgment enforcement, it removes a potential hurdle for creditors seeking confirmation and enforcement of arbitral awards against foreign sovereigns. This should provide more predictability for individuals and companies looking to enforce arbitral awards against sovereign entities that have assets based in the United States.
Discovery revealed the presence of assets potentially subject to garnishment or attachment in the Eastern District of Virginia. The Intervenors registered the judg - ment in that jurisdiction and prepared to seize any attachable assets belonging to Antrix or held in the United States on its behalf. The Ninth Circuit, how - ever, reversed the District Court’s confirmation of the award, holding that Antrix lacked minimum contacts with the forum state to support personal jurisdiction under traditional due process principles. The US Supreme Court unanimously reversed the Ninth Circuit’s judgment. The Court clarified that 28 U.S.C. § 1330 (b) – the FSIA’s jurisdictional provision – does not require the usual “minimum contacts” analy - sis under the Due Process Clause. Instead, so long as a sovereign is properly served and an exception to sovereign immunity applies, US courts have jurisdic - tion over the foreign sovereign.
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