CC/Devas (Mauritius) Ltd v Republic of India - [2021] FCA 975

FEDERAL COURT OF AUSTRALIA
CC/DEVAS (Mauritius) Ltd v Republic of India [2021] FCA 975

File number: NSD 347 of 2021

Judgment of: STEWART J

Date of judgment: 13 August 2021

Catchwords: ARBITRATION – international arbitration – where applicants seek to enforce an award under s 8(3) of the International Arbitration Act 1974 (Cth) – where respondent is a foreign State – where respondent appeared conditionally to require service and claim immunity under the Foreign States Immunities Act 1985 (Cth) – where applicants now apply for leave to serve outside of Australia – consideration of requirements

Legislation:
Federal Court of Australia Act 1976 (Cth) s 19(1)

Foreign States Immunities Act1985 (Cth) ss 10(7), 23, 24, 25

International Arbitration Act 1974 (Cth) ss 3(1), 8(3)

Judiciary Act 1903 (Cth) s 39B(1A)

Federal Court Rules 2011 (Cth) rr 10.42, 10.43, 13.01, 28.44(3)

Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Opened for signature 10 June 1958. 330 UNTS 3 (entered into force 7 June 1959)

Cases cited:
Eiser Infrastructure Ltd v Kingdom of Spain [2020] FCA 157; 142 ACSR 616

Republic of Ecuador v Occidental Exploration and Production Co [2005] EWCA Civ 1116; [2006] QB 432

Date of hearing: 13 August 2021

Registry: New South Wales

Division: General

National Practice Area: Commercial and Corporations

Sub-area: International Commercial Arbitration

Number of paragraphs: 25

Counsel for Applicants: J Hogan-Doran SC

Solicitor for Applicants: Norton Rose Fulbright

ORDERS

NSD 347 of 2021

BETWEEN:
CC/DEVAS (MAURITIUS) LTD

First Applicant

DEVAS EMPLOYEES MAURITIUS PRIVATE LTD

Second Applicant

TELECOM DEVAS MAURITIUS LTD

Third Applicant

AND:
THE REPUBLIC OF INDIA

Respondent

ORDER MADE BY:

STEWART J

DATE OF ORDER:

13 AUGUST 2021

THE COURT ORDERS THAT:
1.The applicants have leave to amend the originating application filed on 21 April 2021 in the form annexed to their interlocutory application filed on 6 August 2021 save that the return day shall be two months and seven days after the date of service.
2.Pursuant to r 10.43 of the Federal Court Rules 2011 (Cth) and s 24(5) of the Foreign States Immunities Act 1985 (Cth) (FSIA), the applicants have leave to serve the amended originating application on the respondent in India by means of diplomatic service, in accordance with s 24 of the FSIA.
3.The proceedings be returnable on the earlier of:
(a)9:15 am Australian Eastern Standard Time or Australian Eastern Daylight Time (as applicable) on the date being two months and seven days after the date that service of the amended originating application is effected on the respondent by delivery by the Department of Foreign Affairs and Trade to the department or organ of the Republic of India that is equivalent to that department, or to some other person on behalf of and with the authority of the Republic of India (not including that day of service). If the date two months and seven days after such service is a day on which the registry of this Court is not open for business, that date…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FCA 975
Decision Date: 13 August 2021

CaseChat Overview and Summary

The case of CC/Devas (Mauritius) Ltd v Republic of India involved the applicants, CC/Devas (Mauritius) Ltd, seeking to enforce an arbitration award against the Republic of India. The dispute centered around the enforcement of an international arbitration award under section 8(3) of the International Arbitration Act 1974 (Cth). The Republic of India, as a foreign state, had appeared conditionally to require service and claimed immunity under the Foreign States Immunities Act 1985 (Cth). The applicants sought leave to serve the amended originating application outside Australia, specifically in India, by diplomatic service.

The legal issues before the court included whether the applicants had established a prima facie case for enforcement of the arbitration award, and if the court should grant leave for service outside Australia under the Foreign States Immunities Act 1985 (Cth). The court had to consider the obligations of full and frank disclosure by the applicants and assess whether any conditions set by the Republic of India affected the enforcement of the award. Furthermore, the court had to determine if the service outside Australia was permissible under the relevant statutes and rules.

The court granted the applicants leave to amend the originating application and to serve it on the respondent in India by diplomatic service, in accordance with the Foreign States Immunities Act 1985 (Cth). The court found that the applicants had satisfied the requirements for a prima facie case and that there was no reason to doubt their obligations of full and frank disclosure. The court also noted that the service outside Australia was appropriate and necessary under the circumstances. The applicants were granted the necessary leave and the court outlined specific conditions for service and the return date of the proceedings.

Orders

Orders of the court

1. The applicants have leave to amend the originating application filed on 21 April 2021 in the form annexed to their interlocutory application filed on 6 August 2021 save that the return day shall be two months and seven days after the date of service.

2. Pursuant to r 10.43 of the Federal Court Rules 2011 (Cth) and s 24(5) of the Foreign States Immunities Act 1985 (Cth) (FSIA), the applicants have leave to serve the amended originating application on the respondent in India by means of diplomatic service, in accordance with s 24 of the FSIA.

3. The proceedings be returnable on the earlier of:

(a) 9:15 am Australian Eastern Standard Time or Australian Eastern Daylight Time (as applicable) on the date being two months and seven days after the date that service of the amended originating application is effected on the respondent by delivery by the Department of Foreign Affairs and Trade to the department or organ of the Republic of India that is equivalent to that department, or to some other person on behalf of and with the authority of the Republic of India (not including that day of service). If the date two months and seven days after such service is a day on which the registry of this Court is not open for business, that date shall be next the day on which the registry is open for business; or

(b) 9:15 am on Wednesday, 27 April 2022.

4. The applicants shall notify the Court of the actual return date in accordance with order 3(a) upon being notified of the date of service for the purpose of listing the proceeding before the docket judge or a duty judge or registrar.

5. The applicants shall have liberty to apply ex parte by arrangement in writing with the Court.

6. Costs of this application be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicants brought to my attention a number of matters which they described as being in accordance with their obligations of full and frank disclosure in an ex parte application. Each of those matters is something that might be raised by the respondent in due course, but none is such as to cause me to doubt that the applicants have established a prima facie case at this stage.C. Conclusion For the above reasons, I was satisfied to grant the applicants the leave that they sought. I also granted the applicants leave to amend the originating application in respects that do not call for reasons or explanation.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	NSD 347 of 2021
Judgment of:	STEWART J
Date of judgment:	13 August 2021
Catchwords:	ARBITRATION – international arbitration – where applicants seek to enforce an award under s 8(3) of the International Arbitration Act 1974 (Cth) – where respondent is a foreign State – where respondent appeared conditionally to require service and claim immunity under the Foreign States Immunities Act 1985 (Cth) – where applicants now apply for leave to serve outside of Australia – consideration of requirements
Legislation:	Federal Court of Australia Act 1976 (Cth) s 19(1) Foreign States Immunities Act1985 (Cth) ss 10(7), 23, 24, 25 International Arbitration Act 1974 (Cth) ss 3(1), 8(3) Judiciary Act 1903 (Cth) s 39B(1A) Federal Court Rules 2011 (Cth) rr 10.42, 10.43, 13.01, 28.44(3) Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Opened for signature 10 June 1958. 330 UNTS 3 (entered into force 7 June 1959)
Cases cited:	Eiser Infrastructure Ltd v Kingdom of Spain [2020] FCA 157; 142 ACSR 616 Republic of Ecuador v Occidental Exploration and Production Co [2005] EWCA Civ 1116; [2006] QB 432
Date of hearing:	13 August 2021
Registry:	New South Wales
Division:	General
National Practice Area:	Commercial and Corporations
Sub-area:	International Commercial Arbitration
Number of paragraphs:	25
Counsel for Applicants:	J Hogan-Doran SC
Solicitor for Applicants:	Norton Rose Fulbright

ORDER MADE BY:	STEWART J
DATE OF ORDER:	13 AUGUST 2021