CCDM Holdings, LLC v Republic of India (No 3)

The case of CCDM Holdings, LLC v Republic of India (No 3) involved a dispute between CCDM Holdings, LLC, and the Republic of India, with the latter seeking to set aside an originating application for recognition and enforcement of a foreign arbitral award. The application was made pursuant to the Foreign States Immunities Act 1985 (Cth) (FSI Act) on the basis of sovereign immunity. The applicants had filed an amended originating application after initially facing a service objection, and they sought to serve the application on India through the diplomatic channel in accordance with the FSI Act.

The legal issues before the court were whether the Republic of India had submitted to the jurisdiction of the court within the meaning of section 10(2) of the FSI Act, and whether the commercial transactions exception in section 11 of the FSI Act applied. The Republic of India contended that the arbitral agreement was tainted by fraud and that the annulment of the agreement for the lease of space segment capacity in the S-band on its satellites was a decision made by the highest executive organ of a foreign State for reasons of public policy, which did not amount to a commercial transaction.

The court held that the Republic of India had made a clear and unmistakable submission by agreement to the jurisdiction of the court, as it had signed the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). The court found that the commercial transactions exception did not apply as the annulment of the agreement was a decision made by the highest executive organ of a foreign State for reasons of public policy, and was not a commercial transaction or like activity. The interlocutory application to set aside the originating application was dismissed, and the proceedings were to be stood over for a case management hearing to deal with the preparation of the matter for final hearing.

The court's final orders were that the respondent's interlocutory application dated 12 April 2022 be dismissed, that the respondent pay the applicants' costs of that interlocutory application, and that the matter be listed for a case management hearing on 10 November 2023 at 9.15 am.