|LIST OF DEFINED TERMS|
|Antrix||Antrix Corporation Ltd, an Indian corporation wholly owned by the Government of India that is under the administrative control of DOS and purports to operate as the commercial marketing arm of ISRO and DOS. Antrix was created to promote the commercial exploitation of India's space program.|
|ASG||The Additional Solicitor-General of India, one of the law officers of the Republic of India who represents the Government of India in the Supreme Court and provides it with legal advice.|
|Balachandhran Report||Report issued by Mr. G. Balachandhran on January 9, 2011.|
|BIT(s)||Bilateral investment treaty (or treaties).|
|BSS||Broadcast satellite services.|
|BWA||Broadband wireless access.|
|CC/Devas||CC/Devas (Mauritius) Ltd., the first Claimant, which was formed in 2006 and has its registered office in Port Louis, Mauritius. It is affiliated with Columbia Capital LLC, a venture capital firm based in Alexandria, Virginia. Shareholder of Devas.|
|CCS||The Indian Cabinet Committee on Security, a select Cabinet committee that, among other matters, deals with all defence related issues, issues relating to law and order, and internal security and economic and political issues impinging on national security. It is composed of the Prime Minister, the Minister of Home Affairs, the Minister of External Affairs, the Minister of Finance, and the Minister of Defence.|
|CGC||Complementary Ground Components, which would constitute the terrestrial segment of the hybrid communication system planned by Devas. Also referred to as ATC (Ancillary Terrestrial Components).|
|Chandrasekhar Report||Report issued by Mr. K.M. Chadrasekhar on April 12, 2011.|
|Chaturvedi Committee||High Powered Review Committee constituted by the Indian Prime Minister on February 9, 2011, chaired by Mr. B.K. Chaturvedi.|
|Chaturvedi Report||Report issued by the Chaturvedi Committee on March 12, 2011.|
|COAI||Cellular Operators Association of India.|
|DEMPL||Devas Employees Mauritius Private Limited, the second Claimant, which was formed in 2009 and has its registered office in Port Louis, Mauritius. It is a subsidiary of Devas Employees Fund US, LLC, a Delaware limited liability company with membership units owned by certain non-Indian Devas employees pursuant to an Equity Incentive Plan. Shareholder of Devas.|
|Devas||Devas Multimedia Private Limited, an Indian company incorporated in Karnataka, Bangalore, India on December 17, 2004, with its registered office at 2nd Floor, Prema Gardenia, 357/6, 1st Cross, I Block, Jayanagar, Bangalore, India. The three Claimants hold shares in Devas and made their alleged investments in India through this company.|
|Devas Agreement/The Agreement||Agreement for the Lease of Space Segment Capacity on ISRO/ANTRIX S-band Spacecraft between Antrix Corp. Ltd. and Devas Multimedia Private Ltd. (Agreement No. ANTX/203/DEVAS/2005), dated January 28, 2005.|
|Devas Services||BWA and AV services to be offered by Devas to mobile users across India under the terms of the Devas Agreement.|
|DOS||The Indian Department of Space, the government department responsible for the development of India's space policy and the implementation of the decisions of the Space Commission. Since its establishment in 1972 under Prime Minister Indira Ghandi, DOS has formed part of the Prime Minister's portfolio and has reported to the PMO.|
|DOT||The Indian Department of Telecommunications.|
|DRDO||Defence Research and Development Organization.|
|DT Asia||Deutsche Telekom Asia, shareholder of Devas.|
|EGoM||Empowered Group of Ministers of the Government of India.|
|FET||Fair and Equitable Treatment.|
|Forge Advisors||Forge Advisors LLC, a U.S. company headed by Mr. Ramachandran Viswanathan.|
|ICC||Indian Satellite Coordination Committee (also referred to as INSAT Coordination Committee).|
|ICC Arbitration||Arbitration under the rules of the International Chamber of Commerce captioned Devas Multimedia (Private) Limited v. Antrix Corp. Ltd. (No. 18051/CYK).|
|ICJ||International Court of Justice.|
|ILC Articles||International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts 2001, Yearbook Of The International Law Commission (2001), Vol. II, Part Two.|
|IPTV||Internet Protocol Television.|
|ISP||Internet Service Provider.|
|ISRO||The Indian Space Research Organization, a body of the Government of India under the direction of DOS and the Space Commission that engages in research and testing in order to encourage the rapid development of activities connected with space science, space technology and space applications with responsibility in the entire field of science and technology of outer space. ISRO builds, launches, operates and leases satellites for various uses, including telecommunications, television and radio broadcasting.|
|ITU||International Telecommunications Union.|
|JCB||Joint Chronological Core Hearing Bundle, provided by the Parties to the Tribunal on August 16, 2014.|
|Leased Capacity||Transponder capacity to be leased to Devas in PS1 and PS2 pursuant to Article 2 of the Devas Agreement.|
|MFN||Most Favored Nation.|
|MOD||Ministry of Defence of the Republic of India.|
|MSS||Mobile satellite services.|
|NFAP||National Frequency Allocation Plan.|
|Note for the CCS||Note from DOS to the Space Commission, dated February 16, 2011.|
|Note for the EGoM||Note for the Empowered Group of Ministers on Vacation of Spectrum, authored by the Department of Space, dated March 1, 2012.|
|Opinion of the ASG||Opinion issued by the ASG on July 12, 2010.|
|PMO||Office of the Prime Minister of India, including his staff.|
|PS (PS1 and PS2)||Primary and Secondary Satellite System, respectively. Also referred to as GSAT-6 and GSAT-6A.|
|S-band||Portion of the electromagnetic spectrum found at 2500-2690 MHz.|
|S-BSS||Portion of the S-band allocated for BSS.|
|S-MSS||Portion of the S-band allocated for MSS.|
|Serbia-India BIT||Agreement between The Government of The Republic Of India and The Federal Government of The Federal Republic of Yugoslavia for The Reciprocal Promotion and Protection of Investments, dated January 31, 2003.|
|Shankara Committee||High Power Committee constituted in May 2004 at the direction of the Chairman of ISRO to review the technical feasibility, risk mitigation, time schedule, financial and organizational aspects of the Devas project, chaired by Dr. K.N Shankara.|
|Space Commission||The Indian Space Commission, which formulates the policies and oversees the implementation of the Indian space program to promote the development and application of space science and technology for the socioeconomic benefit of the country. The Space Commission is composed of appointees from across the Government of India, including the Minister of State, the National Security Advisor (who reports to the Prime Minister), the Cabinet Secretary, the Principal Secretary to the Prime Minister, the Secretary for Economic Affairs in the Ministry of Finance, the Secretary Department of Expenditure, Secretary to the Government of India, and senior directors of ISRO centers.|
|Suresh Committee||Committee instituted by DOT on December 8, 2009 to perform a comprehensive review of all aspects of the Devas Agreement.|
|Suresh Report||Report issued by the Suresh Committee in May 2010.|
|TAG||Technical Advisory Committee of the Indian Satellite Coordination Committee.|
|Telcom Devas||Telcom Devas Mauritius Limited, the third Claimant, which was formed in 2006 and has its registered office in Port Louis, Mauritius. It is affiliated with Telcom Ventures LLC, a United States venture capital firm owned by Dr. Rajendra Singh. Shareholder of Devas.|
|Term Sheet||'Definitive binding term sheet' proposed by Devas to Antrix on September 20, 2004. Precursor of the Devas Agreement.|
|TRAI||Telecom Regulatory Authority of India.|
|Treaty||Agreement Between The Government Of The Republic Of Mauritius And The Government Of The Republic Of India For The Promotion And Protection Of Investments Entering Into Force June 20, 2000.|
|VCLT||Vienna Convention on the Law of Treaties.|
|WPC||Wireless Planning and Coordination Wing, an organ of DOT.|
|WPC License||Operating license issued by the WPC to operators of terrestrial electromagnetic spectrum.|
|Alex, Dr. T.K.||Member of Space Commission (from March 2010); Director of ISRO Satellite Centre (June 01, 2008 to June 30, 2012).|
|Anand,Mr. A. Vijay||Joint Secretary of Department of Space and Chief Vigilance Officer beginning July 2009 (subsequently became Additional Secretary of Department of Space). Has submitted a witness statement in support of Respondent's Statement of Defence.|
|Babbio, Mr. Larry||Former Vice-Chair of Verizon Communications, Inc. who became a director of Devas Multimedia Private Limited ("Devas") in 2007. Has submitted witness statement in support of Claimants' Statement of Claim.|
|Balachandran,Mr. G.||Additional Secretary (from April 1, 2009 to January 11, 2011), Department of Space.|
|Bhaskaranarayana, Dr. A.||Scientific Secretary (from August 27, 2007 to December 29, 2009) and Director, Satellite Communications Program Office, ISRO (from 2003 to 2009).|
|Chandrasekhar,Dr. M.G.||Former Scientific Secretary, ISRO, Member-Secretary of the Apex Management Council of ISRO and Director, Earth Observations Programme. Left ISRO in December 1997. Became Chief Operating Officer and Executive Vice President of WorldSpace in 2000; then Vice President, International Sales for GeoEye LLC in 2005; and subsequently joined Devas as Chairman of the Board of Directors in 2005. Has submitted a witness statement in support of Claimants' Statement of Reply.|
|Chaturvedi,Mr. B.K.||Member, Planning Commission; former Cabinet Secretary (from June 6, 2009 to May 26, 2014).|
|Gupta, Mr. Arun||Partner of Columbia Capital LLC; Devas board member from May 2006. Has submitted witness statements in support of Claimants' Statement of Claim and Claimants' Statement of Reply.|
|Kasturirangan,Dr. Krishnaswamy||Chairman of (a) the Space Commission, (b) ISRO, and (c) Antrix, and (d) Secretary of DOS from April 1994 to August 2003; Member (Science), Planning Commission, from 2009 to March 2014.|
|Katti,Mr. Vadiraj R.||Program Director, GEOSAT, ISRO (from December 31, 1997 to October 31, 2010); joined Devas board in April 2008 and submitted resignation in October 2010.|
|Kibe, Dr. S.V.||Program Director, SATNAV, Associate Director, INSAT Programme Office (from June 7, 2000 to December 31, 2009).|
|Lewis, Mr. John||Electrical engineer who has worked at or with the International Telecommunications Union ("ITU") since 1981 related to the use of electromagnetic spectrum, including by satellite system operators, and the coordination of such use among nations. Has submitted expert reports in support of Claimants' Statement of Claim and Claimants' Statement of Reply.|
|Madhusudhana,Mr. H.N.||Associate Scientific Secretary, ISRO (from July 2011); Executive Director, Antrix (August 2010 to July 2011).|
|Menon,Mr. Shivshankar||National Security Advisor to Prime Minister Manmohan Singh (from January 2010 to May 2014).|
|Murthi,Mr. K.R. Sridhara||Executive Director, Antrix (from August 23, 2001 to January 16, 2008) and Managing Director, Antrix (from January 17, 2008 to September 30, 2010).|
|Nair,Dr. G. Madhavan||Chairman of (a) the Space Commission, (b) ISRO, and (c) Antrix; and (d) Secretary of DOS from September 2003 to October 2009.|
|Parasaran,Mr. Mohan||Additional Solicitor-General of India (from 2004 to 2013) and Solicitor General of India (from 2013 to 2014).|
|Parsons, Mr. Gary||Founder of SkyTerra LP ("SkyTerra") and XM Satellite Radio Holdings, Inc. Former CEO and President of American Mobile Satellite Corporation, which had a number of subsidiaries, including TerreStar Networks, Inc. ("TerreStar"). Devas board member from September 2007 and shareholder in Devas. Has submitted witness statements in support of Claimants' Statement of Claim and Claimants' Statement of Reply.|
|Pitroda, Mr. Sam||Prime Minister Manmohan Singh's Public Information Infrastructure and Innovation Advisor (from October 2009 to June 2014).|
|Radhakrishnan,Dr. K.||Beginning in October 2009, (a) Chairman of the Space Commission, (b) Chairman of ISRO, and (c) Secretary of DOS, and (d) Chairman of Antrix through July 2011.|
|Sayeenathan,Mr. S.||Associate Director, Satellite Communication and Navigation Program Office, ISRO (from February 2010); prior to February 2010 Deputy Director, Frequency Management Office, ISRO.|
|Sethuraman,Mr. K.||Associate Director, Satellite Communication Program at the Satellite Communication and Navigation Program Office, ISRO (from April 6, 2009). Has submitted witness statements in support of Respondent's Statement of Defence and Respondent's Rejoinder.|
|Shankara, Dr. K.N.||Director, ISRO Space Applications Centre (from October 31, 2002 to July 4, 2005); Head of Shankara Committee that issued the "Report of the ISRO/Antrix Committee on lease of space segment capacity on ISRO/Antrix S-band spacecraft to Devas Multimedia Pvt Ltd for delivery of video, multimedia and information services to mobile receivers in vehicles and mobile phones" (the "Shankara Report").|
|Singh,Dr. Manmohan||Prime Minister of India from 2004-14; among other things, was head of the Union Government, head of the executive branch, and the Minister of Space.|
|Singh,Dr. Rajendra||Founder, President and Chairman of the Board of Telcom Ventures LLC; Devas board member from May 2006. Has submitted witness statements in support of Claimants' Statement of Claim and Claimants' Statement of Reply.|
|Suresh, Dr. B.N.||Director of the Indian Institute of Space and Technology (from 2007 to 2010), Thiruvananthapuram; member of Space Commission (from November, 2005 to August, 2008). Author of "Report on GSAT-6" delivered to Chairman, ISRO/Secretary, Department of Space on June 7, 2010 (the "Suresh Report").|
|Venugopal, Mr. D.||Devas co-founder and Chief Technical Officer. Electronics and communications engineer specializing in satellite communications; worked at ISRO from 1980-98. Has submitted a witness statement in support of Claimants' Statement of Reply.|
|Viswanathan, Mr. Ramachandran||CEO of Devas. Has submitted witness statements in support of Claimants' Statement of Claim and Claimants' Statement of Reply.|
|Viswanathan,Mr. T.K.||Advisor to the Minister for Law and Justice (from November 1, 2009 to September 30, 2010).|
The Honorable Marc Lalonde, P.C, O.C., Q.C. (Presiding Arbitrator)
Mr. David R. Haigh, Q.C.
The Honorable Shri Justice Anil Dev Singh
Mr. Ramachandran Viswanathan Dr. Rajendra Singh Mr. Arun Gupta
Mr. Lawrence T. Babbio Mr. John Lewis Mr. D. Venugopal Dr. M.G. Chandrasekhar Mr. Gary Parsons (Representatives and Witnesses)
Mr. John L. Gardiner Mr. David Kavanagh Mr. Timothy G. Nelson Ms. Elizabeth A. Hellmann Ms. Sharmistha Chakrabarti Ms. Jennifer Huang Mr. Gunjan Sharma Ms. Angela Leonard Mr. Kvehl McDermott Mr. Aaron Shorr
(Skadden, Arps, Slate Meagher & Flom LLP)
Mr. Harish Salve, Q.C.
Mr. Ciccu Mukhopadhaya Mr. Kripa Pandit
Mr. S. Srinivasan Mr. A. Vijay Anand Ms. Kalyani Sethuraman Mr. M.S. Krishnan Mr. K. Sethuraman (Representatives and Witnesses)
Mr. George Kahale III
Mr. Benard V. Preziosi
Mr. Fernando A. Tupa
Mr. Kabir A.N. Duggal
Mr. Fuad Zarbiyev
Ms. Gloria Bujan-Diaz
Mr. Philip M. Hwang
Mr. Christopher Grech
(Curtis, Mallet-Prevost, Colt & Mosle LLP)
The Permanent Court of Arbitration
Ms. Fiona Poon
Mr. Jose Luis Aragon Cardiel
Ms. Diana Burden
Ms. Laurie Carlisle
For the Claimants
Mr. Ramachandran Viswanathan
Dr. Rajendra Singh
Mr. Arun Gupta
Mr. Gary Parsons
Mr. Lawrence T. Babbio
Dr. M.G. Chandrasekhar
Mr. D. Venugopal
Mr. John Lewis
For the Respondent
Mr. K. Sethuraman Mr. A. Vijay Anand
(a) The First Claimant, CC/Devas, was formed in 2006 and has its registered office in Port Louis, Mauritius. It is affiliated with Columbia Capital LLC, a venture capital firm based in Alexandria, Virginia;
(b) The Second Claimant, DEMPL, was formed in 2009 and has its registered office in Port Louis, Mauritius. It is a subsidiary of Devas Employees Fund US, LLC, a Delaware limited liability company with membership units owned by certain non-Indian Devas employees pursuant to an Equity Incentive Plan;
(c) The Third Claimant, Telcom Devas, was formed in 2006 and has its registered office in Port Louis, Mauritius. It is affiliated with Telcom Ventures LLC, a United States venture capital firm;
(d) Devas Multimedia Private Limited, an Indian company incorporated in Karnataka, Bangalore, India on December 17, 2004, with its registered office at 2nd Floor, Prema Gardenia, 357/6, 1st Cross, I Block, Jayanagar, Bangalore, India.5 This is the vehicle through which the three Claimants hold shares in Devas;
(e) Mr. Ramachandran Viswanathan, the CEO of Devas;
(f) Dr. Rajendra Singh, the founder and owner of Telcom Ventures LLC and a Devas board member. According to the Claimants, Dr. Singh is also a pioneer in the field of hybrid satellite-terrestrial communications systems;
(g) Mr. Arun Gupta, a partner of Columbia Capital, a Devas board member and Chairman of DEMPL;
(h) Mr. Gary Parsons, a Devas board member, and, according to the Claimants, a pioneer in hybrid satellite-terrestrial systems; and
(i) Mr. John Lewis, an expert on ITU coordination and satellite communications systems.
(a) The Prime Minister of India, who is the head of the Union Government, head of the executive branch, and the chief advisor to the President (who is the head of State). At all relevant times, the Prime Minister was also the Minister of Space and a member of the Cabinet Committee on Security. From 2004 to May 25, 2014, the office of Prime Minister was held by Dr. Manmohan Singh, member of the Congress Party and leader of the then government (of which the Congress Party was the senior coalition partner). Following an election in 2014, Shri Narendra Damodaras Modi became Prime Minister on May 26, 2014;
(b) The Office of the Prime Minister of India ("PMO"), which includes the Prime Minister's staff;
(c) The Union Cabinet, or the Union Council of Ministers, a core decision-making body of the Government of India;
(d) The Indian Cabinet Committee on Security ("CCS"), a select Cabinet committee that, among other matters, "deal[s] with all Defence related issues," "issues relating to law and order, and internal security" and "economic and political issues impinging on national security."6 It comprises the Prime Minister, the Minister of Home Affairs, the Minister of External Affairs, the Minister of Finance, and the Minister of Defence;7
(e) The Indian Space Commission (the "Space Commission"), which "formulates the policies and oversees the implementation of the Indian space programme to promote the development and application of space science and technology for the socioeconomic benefit of the country."8 The Space Commission comprises appointees from across the Government of India, including the Minister of State, the National Security Advisor (who reports to the Prime Minister), the Cabinet Secretary, the Principal Secretary to the Prime Minister, the Secretary for Economic Affairs in the Ministry of Finance, the Secretary Department of Expenditure, Secretary to the Government of India, and senior directors of ISRO centres;
(f) The Department of Space ("DOS"), the government department responsible for the development of India's space policy and the implementation of the decisions of the Space Commission. Since its establishment in 1972 under Prime Minister Indira Ghandi, DOS has formed part of the Prime Minister's portfolio and has reported to the PMO;9
(g) The Indian Space Research Organization ("ISRO"), a body of the Government of India under the direction of DOS and the Space Commission that engages in research and testing in order to encourage the "rapid development of activities connected with space science, space technology and space applications" with "responsibility in the entire field of science and technology of outer space."10 ISRO builds, launches, operates and leases satellites for various uses, including telecommunications, television and radio broadcasting;11
(h) Antrix, a corporation wholly owned by the Government of India12 that is under the administrative control of DOS and that purports to operate as the commercial marketing arm of ISRO and DOS. Antrix was created to promote the commercial exploitation of India's space program. Antrix is expected to seek out "[v]enture capital funding" from private partners and to promote the transfer of technology from such commercial entities to ISR O13 in order to develop India's space-related, industrial capabilities.14 Among other things, Antrix leases transponder capacity on satellites to companies that provide satellite communications and broadcasting services. Antrix was Devas' counterparty in the Devas Agreement; and
(i) The Additional Solicitor-General (the "ASG"), one of the law officers of the Republic of India who represents the Government of India in the Supreme Court and provides it with legal advice. The highest legal officer in India is the Attorney General, who holds a constitutional post. By statute, the Attorney General is assisted by the Solicitor-General of India (the second highest law officer in India), who in turn is assisted by the Additional Solicitor-General.
NRSC: National Remote Sensing Centre PRL: Physical Research Laboratory NARL- National Atmospheric Research Laboratory NE-SAC: North Eastern Space Applications Centre SCL Semi-Conductor Laboratory ISRO: Indan Space Research Organisation Antrix: Antnx Corporation Limited VSSC: Vikram Sarabhai Space Centre LPSC: Lquid Propulsion Systems Centre SDSC: Satish Dhawan Space Centre ISAC: ISRO Satellite Centre SAC: Space Applications Centre HSU: ISRO Inertial Systems Unit DECU: Development and Educational Communication Unit MCF: Master Control Facility ISTRAC: ISRO Telemetry. Tracking and Command Network LEOS: Laboratory for Electro-optic Systems IlST: Indian Institute of Space Science and Technology IIRS: Indian Institute of Remote Sensing
Article 7. Termination
a. Termination for convenience by DEVAS
DEVAS may terminate this Agreement in the event DEVAS is unable to get and retain the Regulatory Approvals required to provide the Devas Services on or before the completion of the Pre Shipment Review of PS1. In the event of such termination, DEVAS shall forfeit the Upfront Capacity Reservation Fees made to ANTRIX and any service or other taxes paid by DEVAS and those outstanding to be paid to ANTRIX till such date. Upon such termination, neither Party shall have any further obligation to the other Party under this Agreement.
b. Termination by DEVAS for fault of ANTRIX
DEVAS may terminate this Agreement at any time if ANTRIX is in material breach of any provisions of this Agreement and ANTRIX has failed to cure the breach within three months after receiving notice from DEVAS setting out the nature of breach and reasons for considering the same as material breach. In such event, ANTRIX shall immediately reimburse DEVAS all the Upfront Capacity Reservation Fees and corresponding taxes if applicable, received by ANTRIX till that date. Upon such termination, neither Party shall have any further obligation to the other Party under this Agreement nor be liable to pay any sum as compensation or damages (by whatever name called).
c. Termination for convenience by ANTRIX
ANTRIX may terminate this Agreement in the event ANTRIX is unable to obtain the necessary frequency and orbital slot coordination required for operating PS1 on or before the completion of the Pre Shipment Review of the PS1. In the event of such termination, ANTRIX shall immediately reimburse DEVAS all the Upfront Capacity Reservation Fees and corresponding service taxes received by ANTRIX till that date. Upon such termination, neither Party shall have any further obligation to the other Party under this Agreement nor be liable to pay any sum as compensation or damages (by whatever name called).
d. Termination by ANTRIX for fault of DEVAS ANTRIX may terminate this Agreement at any time if:
i. DEVAS is in material breach of any provisions of this Agreement and DEVAS has failed to cure the breach within three months after receiving notice from ANTRIX regarding such breach or,
ii. Non payment of (a) the Lease Fees and other charges (such as spectrum monitoring charges) by DEVAS for a continued period of twelve (12) months, or if such accumulated delays from recurrent non payments exceed 60 (sixty) months, whichever occurs earlier or,
(b) Upfront Capacity Reservation Fees, already due
iii. In the event that:
a. A liquidator trustee or a bankruptcy receiver or the like is appointed by a competent court and such appointment remains un-stayed or un-vacated for a period of 90 (ninety) days after the date of such order by a competent court in respect of DEVAS, or
b. If a receiver or manager is appointed by a competent court in respect of all or a substantial part of the assets of DEVAS and such appointment remains un-stayed or unvacated for a period of 90 (ninety) days after the date of such appointment, or
c. If all or a substantial part of the assets of DEVAS have been finally confiscated by action of any Governmental Authority, against which no appeal or judicial redress lies.
It is expressly agreed that ANTRIX shall have no right to terminate this Agreement if DEVAS enters into any scheme or arrangement with its creditors, a corporate re-organization or restructuring of its debt and liabilities as long as DEVAS continues to make the Annual Lease Payments to ANTRIX.
In the event of such termination, DEVAS shall forfeit the Upfront Capacity Reservation Fees made to ANTRIX and DEVAS shall be liable to pay any outstanding dues to be paid to ANTRIX by DEVAS. Upon such termination, neither Party shall have any further obligation to the other Party under this Agreement nor be liable to pay any sum as compensation or damages (by whatever name called).
Considering the fact ISRO/DOS has developed these complex technologies to start a new service in the national interest it is noted that the agreement does not make any mention of preference being offered explicitly to ISRO in case there is a demand on ISRO/DOS for use of this service under emergent conditions for strategic or any other essential applications.126
The utilization of the S-band frequency spectrum allotted for satellite based services to ISRO/DOS for satellite communications is extremely important. Therefore this aspect has to be critically examined considering all usages including GSAT-6 and GSAT-6A by a competent technical team on high priority. The strategic and other essential needs of the country should also be considered.127
CCS Decides to Annul Antrix-Devas Deal
Cabinet Committee on Security (CCS) has decided to annul the Antrix-Devas deal. Following is the statement made by the Law Minister, Shri M. Veerappa Moily on the decision taken by the CCS which met in New Delhi today:
"Taking note of the fact that Government policies with regard to allocation of spectrum have undergone a change in the last few years and there has been an increased demand for allocation of spectrum for national needs, including for the needs of defence, para-military forces, railways and other public utility services as well as for societal needs, and having regard to the needs of the country's strategic requirements, the Government will not be able to provide orbit slot in S band to Antrix for commercial activities, including for those which are the subject matter of existing contractual obligations for S band.
In the light of this policy of not providing orbit slot in S Band to Antrix for commercial activities, the 'Agreement for the lease of space segment capacity on ISRO/Antrix S-Band spacecraft by Devas Multimedia Pvt. Ltd.' entered into between Antrix Corporation and Devas Multimedia Pvt. Ltd. on 28th January, 2005 shall be annulled forthwith."177
Citing the decision of the CCS, Antrix, on February 25, 2011, gave notice to Devas that the Devas Agreement was terminated.178
It is clear that the ICC Award and the present case concern the liability of different parties under different normative regimes. The State was not a party to the ICC arbitration. Neither are PDVSA and PDVSA-CN parties to this case. These proceedings concern the responsibility of the State for breach of the Treaty and international law, a matter that was not (and could not) have been resolved by the ICC tribunal, which jurisdiction was limited to the contractual dispute.200
(a) Declaring that the Tribunal has jurisdiction over all of Claimants' claims;
(b) Declaring that Respondent has unlawfully expropriated Claimants' investments, in breach of Articles 6 and 7 of the Mauritius-India BIT;
(c) Declaring that Respondent has failed to accord fair and equitable treatment to the Claimants' investments, in violation of Article 4(1) of the Mauritius-India BIT;
(d) Declaring that Respondent has engaged in unreasonable and/or discriminatory measures with respect to Claimants' investments, in violation of Article 4(1) of the Mauritius-India BIT;
(e) Declaring that Respondent has failed to provide full legal protection and security with respect to Claimants' investments, in violation of the "most favored nation" provisions of Articles 4(2) and 4(3) of the Mauritius-India BIT, which incorporate Article 3(2) of the Serbia-India BIT;
(f) Declaring that Respondent is liable to pay the costs of these proceedings to date; and
(g) Ordering that these proceedings continue for the purposes of determining the reparations due to Claimants, including a determination of the damages owed to Claimants, and the allocation of costs and other matters related to quantum.202
every kind of assets established or acquired under the relevant laws and regulations of the Contracting Party in whose territory the investment is made, and, in particular, though not exclusively, includes:
(i) movable and immovable property as well as other rights in rem such as mortgages, liens or pledges;
(ii) shares, debentures and other form of participation in a company;
(iii) claims to money, or to any performance under contract having an economic value;
(iv) intellectual property rights, goodwill, technical processes, know-how, copyrights, trademarks, trade-names and patents in accordance with the relevant laws of the respective Contracting Parties;
(v) business concessions conferred by law or under contract, including any concessions to search for, extract or exploit natural resources.
The provisions of this Agreement shall not in any way limit the right of either Contracting Party to apply prohibitions or restrictions of any kind or take any other action which is directed to the protection of its essential security interests, or to the protection of public health or the prevention of diseases in pests or animals or plants.
(a) What constitutes "essential security interests"?
(b) Does Article 11(1) of the Treaty allow for the introduction of customary international law restrictions imposed on a state of necessity defence?
(c) Can the Claimant invoke Article 11(4) of the Treaty?
(d) Does Article 11(3) preclude an entitlement to compensation?
The Claimants do not accept India's argument, which is premised on a characterization of Article 11(3) of the Treaty as "self-judging,"279 by reference to the consistent and emphatic rejection of this notion by the International Court of Justice,280 and universally reaffirmed by arbitral tribunals.281
• The Tribunal must first verify whether a measure was aimed at the protection of the Respondent's security interests. In their view, the measure must be specifically directed at the State's essential security interests.299
• Additionally, the Claimants construe a requirement of necessity from the words "essential security interests." In other words, the Tribunal must verify that the security interest in question is so "vital... absolutely necessary; extremely important" that protection must be warranted, and that such interest is actually under a threat that warranted the asserted measures of protection.300
• In the Nicaragua case, it had been claimed that the various actions directed against the Nicaraguan government were justified on "essential security" grounds. Rejecting this claim, the ICJ held that:
No evidence at all is available to show how Nicaraguan policies had in fact become a threat to "essential security interests" in May 1985, when those policies had been consistent, and consistently criticized by the United States, for four years previously, the Court is unable to find that the "embargo" was necessary to protect those interests.303
• In a similar vein, the Claimants rely on the Oil Platforms304 and the Total v. Argentina305 cases to argue that the nature of the security interest to be protected must be "absolutely necessary, extremely important," and that such interest was actually under a "threat" that warranted the asserted measures of "protection."306
• Finally, the Claimants argue that, in any event, the customary standard of necessity appearing in Article 25 of the Articles on State Responsibility adopted by the International Law Commission (the "ILC Articles") applies to Article 11(3) of the Treaty by operation of Article 11(1).307 In the Claimants' view, there exists in customary international law a regime governing the same issue dealt with by Article 11(3), i.e. the extent to which a State may respond to the alleged threats to the "essential interests" of the State. And, if these customary rules impose a "stricter" set of requirements on the host State, then the customary rules also qualify under Article 11(1) because they afford the Claimants treatment more favourable than that provided for by Article 11(3).
Article 11(1) of the Treaty reads as follows:
If the provisions of the law of either Contracting Party or obligations under international law existing at present or established hereafter between the Contracting Parties, in addition to the present Agreement, contain rules, whether general or specific, entitling investments and returns of investors of the other Contracting Party to treatment more favourable than that provided for by the present Agreement, such rules shall, to the extent that they are more favourable, prevail over the present Agreement.
1. Necessity may not be invoked by a State as ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act:
(a) is the only way for the State to safeguard an essential interest against a grave and imminent peril; and
(b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole.
2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:
(a) the international obligation in question excludes the possibility of invoking necessity; or
(b) the State has contributed to the situation of necessity.323
In the Claimants' view, these strict requirements on a host State invoking a state of necessity must be applied in the interpretation of Article 11(1) of the Treaty which allows them to make a claim on the basis that they are entitled to a "treatment more favorable than that provided for by the present Agreement," including Article 11(3). Relying in particular on EDF International,324Suez AWG325 and Gabcikovo-Nagymaros,326 they argue that the Respondent must demonstrate that "the wrongful act was the only way to safeguard (India's) essential interest under Article 25(1)."327
The Tribunal is of the view that Article 11(1) does not result in a restrictive application of Article 11(3). It is true that, when a State was invoking a "state of necessity" defence, the ICJ and a number of arbitral tribunals330 have recognized the right of international investors to challenge such defence under customary international law, on the basis that it was not the only way for a State to safeguard its essential interests or that the State was at least partly responsible for the situation which led a State to invoke a state of necessity situation (These are the only two restrictions mentioned in Article 25 of the Articles that might apply in this case).
Article 4. Conduct of organs of a State
1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.
2. An organ includes any person or entity which has that status in accordance with the internal law of the State.
Article 5. Conduct of persons or entities exercising elements of governmental authority
The conduct of a person or entity which is not an organ of the State under Article 4 but which is empowered by the law of that State to exercise elements of the governmental authority under international law, provided the person or entity is acting in the capacity in the particular instance.
Article 8. Conduct directed or controlled by the State
The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of that State in carrying out the conduct.
As the Court recalled in the Barcelona Traction case, "(t)here is...no need to investigate the many different forms of legal entity provided for by the municipal laws of States (I.C.J. Reports 1970, p.34, para.40). What matters, from the point of view of international law, is to determine whether or not these have a legal personality independent of their members. (…). In determining whether a company possesses independent and distinct legal personality, international law looks to the rules of the relevant domestic law."353
It is important that international law, and in particular the law of State responsibility, should not be made to do too much. In particular, international law should not be applied to decide issues to which it is not properly applicable and a fortiori, should not be applied to decide issues which, on analysis, are properly governed by a particular system of domestic law. As will be seen, this is a particular danger with the rules of attribution, which are often prayed in aid in relation to issues which in reality have nothing to do with questions of State responsibility.367
The basic difference between the principle of "piercing the corporate veil" and the rules of attribution as reflected in the ILC Articles is that under the former, the contract itself is attributed to the state, while under the latter, only the act which constitutes the breach of international law is attributed for the purpose of state responsibility.368
Relying thus on Article 8 and its Commentary, the Tribunal stated that:
The relevant enquiry remains whether Emlak was being directed, instructed or controlled by TOKI with respect to the specific activity of administering the Contract with Tulip JV in the sense of sovereign direction, instruction or control rather than the ordinary control by a majority shareholder in the company's perceived commercial interests.
The Committee has no doubt that the Tribunal correctly interpreted Article 8 of the ILC Articles and applied the relevant test, that of effective control."373
i. A March 1, 2012 letter from Dr. Radhakrishnan, as Secretary of DOS, to the Secretary of DOT,423 referring to the letter dated February 21, 2012 from Mr. Chandrashekhar to Dr. Radhakrishnan,424 which makes clear that the strategic, non-commercial needs for S-band continued to exist and that, in light of those needs, it would not be possible to vacate S-band spectrum for commercial BWA purposes;425 and
ii. A Note produced by DOS on March 28, 2014, in preparation for the 128th Space Commission Meeting, regarding the revised cost estimates and revised utilization plan for GSAT-6 and GSAT-6A. This note explains that the Defence Research and Development Organisation (the "DRDO"), which works under the Ministry of Defence, is responsible for the development of the ground segment related to the operations of the satellites.426 That segment involves "a) Design and Development of Hub Station, b) Development and realization of Ground Terminals, c) Design and Development of Scalable Network Management System for Network Resource Management."427
Cabinet Committee on Security (CCS) has decided to annul the Antrix-Devas Deal. Following is the statement made by the Law Minister, Shri M. Veerappa Moily on the decision taken by the CCS which met in New Delhi today:
Taking note of the fact that the Government policies with regard to the allocation of spectrum has undergone a change in the last few years and there has been an increased demand for allocation of spectrum for national needs, including the needs of defence, para-military forces and other public utility services as well as for societal needs, and having regard to the needs of the country's strategic requirements, the Government will not be able to provide orbit slot in S band to Antrix for commercial activities, including for those which are the subject matter of existing contractual obligations for S band.
In the light of this policy of not providing orbit slot in S band to Antrix for commercial activities, the "Agreement for the lease of space segment capacity on ISRO/Antrix S-Band spacecraft by the Devas Multimedia Pvt. Ltd" entered into between Antrix Corporation and Devas Multimedia Pavt. Ltd. on 28th January, 2005 shall be annulled forthwith.444
The importance of reliable, secure, real time and uninterrupted tactical as well as strategic communications, in the Navy can never be over emphasised. Ship shore communications serve command and control functions, need to be global in nature and are therefore termed strategic communications.447
1. Space Systems are beginning to become an integral component of the total combat potential of many nations. It is but imperative that our Defence Forces do not lack in the exploitation of Space for War fighting. Till 2008 Indian Space capability and programmes have been defined and there is no alternative but to exploit available assets except for minor up gradations where feasible, during this time frame. However, beyond that period our Defence Forces should be able to examine and specify the needs to enable our technologists to support our requirements. Space capabilities are vital tools of the Information Revolution and critical to activities of the Defence Forces. Space is emerging as a centre of gravity for information dependent forces and it is highly probable that continued and assured access to Space will be a major determinant of national power [...].
2. Lack of Policy with respect to exploitation of Space Systems, which are now a universally accepted phenomenon, by the Armed Forces, could lead to a void in Space related research and the Defence Forces, could miss the opportunity for early involvement and influence over Space Programmes. This has possibly occurred till 2008 as a fait accompli and we must plan our strategy for space asset accruels beyond 2008. This document would prima facie address our broad technology requirements based on mission statements of our Defence Forces.
4. Defence Space Vision 2020 is intended to be futuristic in content and would be the Base Document for formulating the Space Strategy and Space Doctrine for the Armed Forces, after approval of the COSC, which was eventually accorded on October 14, 2005.448
86MHZ-151 MHZ-208 MHZ for short, medium and long term respectively.449
a. Spectrum uses by various services in Band 2.5GHz and 2.69 GHZ.
b. Present and planned satellite uses by the services on satellite bands by DoS.
c. Defence services support to DoS or otherwise at various national and international forums for protection of band 2.5GHz and 2.69GHz in favour of DoS without laying under constitution to satellite services."452
11. If this spectrum (2.5-2.69 GHz) is lost to commercial operators, it would severely jeopardize the future Defence services plans, of providing mobile SATCOM connectivity.
12. In view of the above, it is strongly recommended that the 'S' band Spectrum be safeguarded from being poached by the commercial operators for meeting the future requirements of the Defence Services. Proposal from the IAF for a dedicated satellite to utilize the 'S' Band spectrum, which is under finalization, would also strengthen the case for retention of spectrum. The non availability of the Spectrum could stymie the future operational plans of the Defence services.453
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