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Lawyers, other representatives, expert(s), tribunal’s secretary

Award on Jurisdiction and Merits

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.
AV Audio-video.
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.
MHz Megahertz.
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.
DRAMATIS PERSONAE
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).

CHAPTER INTRODUCTION

A. THE PARTIES

1.
The Claimants in this matter are CC/Devas (Mauritius) Ltd. ("CC/Devas"), Devas Employees Mauritius Private Limited ("DEMPL") and Telcom Devas Mauritius Limited ("Telcom Devas"), three companies incorporated in Mauritius. The Claimants bring their claims under the 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 (the "Mauritius-India BIT" or "Treaty").
2.
The Claimants are represented in this arbitration by Mr. John L. Gardiner and Mr. Timothy G. Nelson of Skadden, Arps, Slate, Meagher & Flom LLP, 4 Times Square, New York, NY 100366522, United States of America, and by Mr. David Kavanagh, of Skadden, Arps, Slate, Meagher & Flom LLP, 40 Bank Street, Canary Wharf, London E14 5DS, United Kingdom.
3.
The Respondent in this matter is the Republic of India.
4.
The Respondent is represented in this arbitration by Mr. George Kahale III and Mr. Benard V. Preziosi, Jr., of Curtis, Mallet-Prevost, Colt & Mosle LLP, 101 Park Avenue, 35th Floor, New York, New York 101178, United States of America, and by Mr. Shri S. Srinvasan, Government of India, Department of Space, Antariksh Bhavan, New BEL Road, Bangalore 560 231, India. Between March 14, 2013 and May 9, 2014, the Respondent was also represented by Mr. Sanjeev Kapoor of Khaitan & Co, 1105 Ashoka Estate, 24 Barakhamba Road, New Delhi, India.

B. THE DISPUTE

5.
The dispute concerns the annulment of a contract, entitled Agreement for the Lease of Space Segment Capacity on ISRO/ANTRIX S-Band Spacecraft (the "Devas Agreement" or the "Agreement"),1 concluded on January 28, 2005 between Devas Multimedia Private Limited ("Devas"), an Indian company, and Antrix Corporation Limited ("Antrix"), an Indian State-owned company. The annulment of the Devas Agreement followed a policy decision taken by the Government of India to reserve a part of the electromagnetic spectrum known as the S-band "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."2 Part of that spectrum had originally had been leased to Devas under the Devas Agreement for the purpose of offering broadband wireless access and audio-video services throughout India.
6.
The Claimants, who are shareholders of Devas, maintain that this policy decision taken by the Government of India amounted to an expropriation of the Claimants' investments in India and was not accompanied by payment of fair and equitable compensation, in breach of the Treaty. They also allege other breaches under Articles 3 and 4 of the Treaty.
7.
The Respondent argues that its policy decision was intended to satisfy the national security needs of the nation; that Devas had no right to proceed with the Devas Agreement uninterrupted by any governmental action; and that the Claimants have no claim under the Treaty.

CHAPTER II PROCEDURAL HISTORY

A. COMMENCEMENT OF THIS ARBITRATION

8.
By a Notice of Arbitration dated July 3, 2012, the Claimants commenced arbitration proceedings against the Respondent pursuant to Article 3 of the Arbitration Rules of the United Nations Commission on International Trade Law (1976) (the "UNCITRAL Rules") and Article 8 of the Mauritius-India BIT.

B. CONSTITUTION OF THE ARBITRAL TRIBUNAL

9.
On July 3, 2012, the Claimants appointed Professor Francisco Orrego Vicuna as Co-arbitrator.
10.
On 26 December 2012, the Respondent appointed the Honorable Shri Justice Anil Dev Singh as Co-arbitrator.
11.
On January 24, 2013, the Co-arbitrators selected the Honorable Marc Lalonde, P.C., O.C., Q.C., as Presiding Arbitrator. On January 26, 2013, the Hon. Marc Lalonde accepted his appointment as Presiding Arbitrator, which was notified to the Parties on February 4, 2013.

C. ADOPTION OF THE TERMS OF APPOINTMENT AND THE FIRST PROCEDURAL MEETING

12.
By letter dated February 4, 2013, the Tribunal invited the Parties to comment on certain matters, including, inter alia, the need for the Respondent to appoint counsel; administration of the arbitration by the Permanent Court of Arbitration ("PCA"); and an outline of steps to be taken in the conduct of the proceedings.
13.
In response, the Claimants urged the Tribunal, by letter dated February 5, 2013, to convene an initial conference whereas the Respondent, by letter dated February 13, 2013, sought to defer addressing these issues until the process of engaging counsel was concluded.
14.
By letter dated February 14, 2013, the Claimants noted that the Respondent's position was "completely unsatisfactory and appears purposefully calculated to compound the already extensive delays that the Respondent's conduct has engendered in this proceeding," by reference to the case record. In any case, the Claimants stated that there was "no basis for further delay," citing the Respondent's good faith obligations to promptly participate, and proposed possible venues for an initial conference on a date to be fixed by the Tribunal.
15.
On March 14, 2013, the Respondent notified the appointment of Khaitan & Co. as counsel.
16.
By letter dated April 2, 2013, the Tribunal requested that the Parties advance an initial deposit and designated the PCA to administer the initial case deposit. The Tribunal further proposed that the PCA act as registry and administer the arbitral proceedings, which was accepted by the Parties.
17.
On April 16, 2013, the PCA wrote to the Parties regarding the details of the first procedural meeting to be held on May 15, 2013, at the Peace Palace in The Hague.
18.
Following an exchange of views upon the Tribunal's invitation, the Parties submitted a draft Proposed Terms of Appointment and a draft Proposed Procedural Timetable on May 10, 2013.
19.
On May 10, 2013, the Respondent informed that it had engaged Curtis, Mallet-Prevost, Colt & Mosle LLP as counsel along with M/s Khaitan & Co.
20.
On May 15, 2013, a first procedural meeting was held at the Peace Palace in The Hague, the Netherlands ("First Procedural Meeting"), in which the Parties agreed to and signed the Terms of Appointment.

D. CHALLENGES TO THE APPOINTMENT OF ARBITRATORS

21.
By e-mail dated May 11, 2013, the Respondent notified the Claimants and the Tribunal of its intention to challenge the appointments of the Hon. Marc Lalonde as Presiding Arbitrator and Professor Francisco Orrego Vicuna as Co-arbitrator.
22.
Following the First Procedural Meeting, at which the Respondent again raised its intention to bring the challenge, the Tribunal circulated an unsigned Procedural Order No. 1 "to be used as a guide for the Parties in their preparation of their upcoming submissions during the pendency of the challenge."
23.
By letter dated May 20, 2013, the Respondent submitted the challenge to H.E. Judge Peter Tomka, then President of the International Court of Justice and Appointing Authority pursuant to Article 8(2)(d)(i) of the Mauritius-India BIT.
24.
On June 3, 2013, the Appointing Authority made two disclosures and invited the Parties to submit their comments on them by June 10, 2013. By letters dated June 5, 2013, the Claimants and the Respondent indicated that they had no comments with regard to the Appointing Authority's disclosures.
25.
Between May and June 2013, the Claimants and the Respondent made submissions in respect of the challenge in accordance with the agreed timetable. The Hon. Marc Lalonde and Professor Orrego Vicuna also submitted comments on the challenge by letters dated June 5 and 6, 2013, respectively.
26.
On September 30, 2013, the Appointing Authority issued his decision on the challenge— upholding the Respondent's request to disqualify Professor Orrego Vicuna, and rejecting the Respondent's request to disqualify the Hon. Marc Lalonde.
27.
Following the Appointing Authority's decision on the challenge, the Claimants appointed Mr. David R. Haigh, Q.C., as Co-arbitrator on October 9, 2013. The Tribunal issued Procedural Order No. 1 on October 16, 2013.
28.
By letter dated May 23, 2015, the Respondent submitted a challenge to Mr. David R. Haigh, Q.C. to H.E. Judge Ronny Abraham, the current President of the International Court of Justice and Appointing Authority pursuant to Article 8(2)(d)(i) of the Mauritius-India BIT. By letter dated June 3, 2015, the Claimants opposed the challenge.
29.
On June 11, 2015, pursuant to the schedule set forth by the Appointing Authority on June 5, 2015, the Respondent provided its comments to the Claimant's letter of June 3 2015. On June 19, 2015, the Claimants provided their comments on the Respondent's submissions. By letter dated June 25, 2015, Mr. Haigh responded to the submissions of the Parties.
30.
On August 3, 2015, the Appointing Authority issued his decision on the Challenge rejecting the Respondent's request to disqualify Mr. David R. Haigh Q.C.

E. THE PARTIES' WRITTEN SUBMISSIONS

31.
On July 1, 2013, the Claimants submitted their Statement of Claim (the "Statement of Claim").
32.
On December 2, 2013, the Respondent submitted its Statement of Defence (the "Statement of Defence").
33.
On March 18, 2014, the Claimants submitted their Statement of Reply on Jurisdiction and Liability (the "Statement of Reply").
34.
On July 1, 2014, the Respondent submitted its Rejoinder (the "Respondent's Rejoinder").

F. THE PARTIES' REQUESTS FOR THE PRODUCTION OF DOCUMENTS

35.
On January 14, 2014, the Parties submitted their respective requests for the production of documents in accordance with paragraph 4 of Procedural Order No. 1.
36.
On January 31, 2014, the Tribunal issued Procedural Order No. 2 concerning the Parties' Document Production Requests of January 14, 2014, setting out its determinations and a timetable for the Parties to produce documents.
37.
By letter dated May 16, 2014, the Claimants submitted that the Respondent had not complied fully with Procedural Order No. 2. Accordingly, the Claimants requested: (i) the production of additional documents in response to the Claimants' document production requests Nos. 16 and 17; (ii) a statement by the Respondent certifying the names of the entities, agencies and departments whose records were searched in response to the Tribunal's Order; (iii) the disclosure "of every page of every document" improperly redacted by the Respondent, "indicating the reason for every instance in which text has been redacted;" and (iv) the disclosure of all redacted names of people involved in a transaction or communication reflected in a document produced by the Respondent.
38.
By letter dated June 6, 2014, the Respondent requested that the Claimants' application be denied. Notwithstanding this, the Respondent stated that, in connection with the Claimants' application, it had located "a few additional documents that [were] arguably responsive" to their requests. Also, by reference to an ongoing related ICC case and document production decisions made by the tribunal in that case, the Respondent noted that it was "prepared to provide the same materials regarding the redacted documents that Antrix will be providing Devas in the ICC case."
39.
In a further communication dated June 9, 2014, the Respondent provided the Tribunal with the text of the direction given by the ICC tribunal in respect of the redacted documents, which was confirmed by the Claimants on the same day.
40.
By e-mail dated June 12, 2014, the Respondent indicated that it had produced to the Claimants the newly located documents referenced in its June 6, 2014 letter.
41.
On June 16, 2014, the Tribunal issued Procedural Order No. 3 concerning the Claimants' Document Production Request of May 16, 2014, setting out the procedure and timetable for the Respondent to revert on outstanding issues.
42.
In accordance with Procedural Order No. 3, on July 12, 2014, the Respondent produced a key corresponding to individual's names that were redacted, which was verified by the PCA on June 24, 2014; and confirmed on August 1, 2014 that there were no additional documents meeting the Claimants' document production requests Nos. 16 and 17.

G. HEARING ON JURISDICTION AND LIABILITY

43.
On August 4, 2014, the Parties and the Tribunal held a telephone conference in preparation for the Hearing on Jurisdiction and Liability, scheduled on September 1-5, 2014.
44.
On September 1-5, 2014, a Hearing on Jurisdiction and Liability was held at the Peace Palace in The Hague, the Netherlands. The following persons attended:

The Tribunal

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

The Claimants

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

The Respondent

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

Court reporters

Ms. Diana Burden

Ms. Laurie Carlisle

45.
During the hearing, examination of fact and expert witnesses occurred in the following order:

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

H. THE NEW DOCUMENTS PRODUCED BY THE RESPONDENT ON DECEMBER 20, 2014

I. THE LAUNCHING OF GSAT-6

55.
On August 31, 2015, the Respondent submitted six news articles and a video by public service broadcaster Doordarshan reporting the launch of a satellite named "GSAT-6" on August 27, 2015.
56.
On September 21, 2015, the Tribunal issued Procedural Order No. 5. In that Order, the Tribunal conditionally accepted the Respondent's submission of August 31, 2015 without ruling on the significance or probative value of the Respondent's submission. The Tribunal also invited the Respondent to explain, within two weeks from the Order, the relevance and probative value of its submission and invited the Claimants to submit, within two weeks of the receipt of the Respondent's explanation, any comment they may wished to make.
57.
The Respondent, on October 5, 2015, submitted a further article published by the Institute of Defence Studies and Analyses entitled "GSAT-6: India's Second Military Satellite Launched" in Annex A, "which reviewed the launch and its significance for the military." In its letter, the Respondent stated inter alia that "the video of the event and accompanying press reports attest to the event's significance and leave no doubt that what Respondent told this Tribunal about the reconfiguration of the satellite for military use and the reservation of the S-band capacity for noncommercial, strategic use was completely accurate."
58.
On October 19, 2015, the Claimants submitted to the Tribunal their comments on the documents newly submitted by India relating to satellite launch. The Claimants argued that the Tribunal should focus on contemporaneous evidence to the events of February 2011 and that the new materials do not provide evidence that in 2011 a policy decision was made to reserve the S-band for military needs.

J. THE ICC FINAL AWARD IN DEVAS MULTIMEDIA PRIVATE LIMITED V. ANTRIXCORPORATION LIMITED

59.
On June 29, 2011, Devas had commenced an arbitration under the ICC rules pursuant to Article 20 of the Devas Agreement, captioned Devas Multimedia (Private) Limited v. Antrix Corp. Ltd. (No. 18051/CYK) ("the ICC arbitration"), in which Devas had sought both specific performance of the Devas Agreement and/or damages.3
60.
On September 14, 2015, the ICC tribunal issued its award, ordering Antrix to pay USD 562.5 million to Devas Multimedia Private Limited for damages caused by Antrix's wrongful repudiation of the Devas Agreement, plus interest.
61.
On October 1, 2015, the Claimants, with the consent of the Respondent, informed the Tribunal that it wished to provide the ICC Final Award to the members of the present Tribunal and that the Parties would make simultaneous submissions concerning the impact on this arbitration of the Final Award on October 9, 2015 and reply submissions on October 19, 2015.
62.
On October 2, 2015, the Tribunal approved the approach agreed between the Parties. The ICC Final Award was communicated to the Tribunal on the same day.
63.
On October 9, 2015, the Parties made submissions pursuant to the agreed approach, and on October 19, 2015, the Parties made reply submissions pursuant to the agreed approach. The content of the Parties' submissions is briefly discussed below.

CHAPTER III FACTUAL BACKGROUND

64.
The following summary draws on the Parties' submissions to provide context to the alleged violations of the Treaty by the Respondent in respect of the Claimants' investments in India that are at issue in this arbitration. The Parties differ in significant respects concerning the characterization and relevance of the factual developments; such differences are noted as they arise.

A. THE KEY ACTORS - CORPORATE AND STATE ENTITIES AND ORGANS OF THESTATE

65.
The Claimants provide a useful and largely uncontested outline of the key actors involved in the present case, which is reproduced below in relevant part.4
66.
The key actors on the Claimants' side are as follows:

(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.

67.
The key actors on the Respondent's side, which the Claimants assert are emanations of the Respondent, are as follows:

(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.

68.
The Claimants also provide the following chart indicating the relationships among some of these emanations, which was reproduced from the ISRO website:15

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

69.
According to the Claimants, at all times relevant to this dispute, the Space Commission, DOS, ISRO and Antrix operated in an integrated manner, with the same person serving as the Chairman of the Space Commission, Secretary of DOS, Chairman of ISRO, and Chairman of Antrix. Specifically, Dr. K. Kasturirangan served in these positions until August 2003. He was succeeded by Dr. G. Madhavan Nair, who served in these positions from September 2003 to October 2009; and thereafter from November 2009 until around July 2011, Dr. K.R. Radhakrishnan held these positions.16 The Claimants characterize Dr. Radhakrishnan as the "central actor in these proceedings..."17
70.
The Respondent denies this allegation and maintains that Antrix remained distinct from the other entities at all times.18

B. BACKGROUND TO THE DEVAS PROJECT

71.
The Devas Agreement forms the contractual framework to enable and facilitate the Devas project, which proposed to utilize part of the S-band capacity previously allocated to India by the International Telecommunications Union ("ITU").19

1. The S-band and Its Allocation within India

72.
The S-band is a portion of the electromagnetic spectrum found at 2500-2690 MHz (the "S-band").20 The S-band is a scarce and highly desirable spectrum due to its specific characteristics— its frequencies have low attenuation (i.e. the signal does not fade) and the signal can be sent and received by small units, such as mobile phones and laptop computers, without requiring the antenna on such units to be pointed directly at the satellite.21
73.
Of the capacity allocated to India, further allocations were made internally by India pursuant to its national planning, for example, to enable mobile satellite services ("MSS")22 and broadcast satellite services ("BSS").23
74.
The Parties disagree with regard to the allocation and utilization of S-band capacity in India. According to the Respondent, both the S-MSS and the S-BSS frequencies, from the outset of India's space program until the early part of the last decade, were utilized solely for non-commercial, national strategic and societal purposes at all relevant times.24 It adds that, in the early 2000s, 40MGz of S-MSS capacity were assigned to the Department of Telecommunications for use in the terrestrial communications industry, leaving the Department of Space with 80MGz of S-BSS and 70MGz capacity. The Claimants, however, contend that in 2001, the DOS was left with that latter capacity, which was not utilized at the time and that it needed to find ways of making commercial use of its allocated S-band spectrum in order to retain that allocation which would otherwise, under the ITU regulations, expire by September 2010 if it remained unused.25

2. The Proposed Devas Satellite-Terrestrial Communications System

75.
Early discussions concerning the proposed Devas project took place in 2003 between Antrix and Forge Advisors LLC ("Forge Advisors"), a U.S. company headed by Mr. Ramachandran Viswanathan,26 which led to a signed Memorandum of Understanding "to explore mutually beneficial opportunities in the area of digital multimedia services."27
76.
The Devas project envisaged the establishment of a hybrid satellite-terrestrial communications system involving both satellite and terrestrial transmission28 due to certain perceived advantages over a satellite-only communications system.29 This system would enable Devas to offer two main services to customers in India: broadband wireless access ("BWA") and audio-video ("AV") services, to facilitate the delivery of video, multimedia and information services across India to mobile users (together, "Devas Services").30
77.
According to the Claimants, this hybrid communications system required the construction of a network of Complementary Ground Components ("CGC"), often referred to as 'towers' or 'repeaters', on the surface of the earth that use the same frequency as a satellite.31 Satellite transmission would be augmented by terrestrial transmission to enable the reuse of satellite signals seamlessly.32
78.
It was proposed that ISRO would be responsible for developing the satellite segment by building, launching and operating two satellites and leasing transponder capacity on these satellites to Devas.33 In turn, Devas would be responsible for the terrestrial segment by, among other things, building the CGC elements of the network,34 notwithstanding the fact that the Devas Agreement did not address this latter aspect.35
79.
The following is a diagrammatic representation of how the Devas System would provide services, which was prepared for a presentation by Devas to Columbia Capital LLC and Telcom Ventures LLC in 2005:36
80.
One critical component of the hybrid communications system was sufficient S-band capacity, since the S-band signal could be received and sent from units in motion using compact omnidirectional antennae.37 As a practical matter, any S-band capacity allocated for Devas' use could not be simultaneously used by another operator as this could cause significant interference with the system or the total unavailability of the service.38

3. Negotiations Leading to the Devas Agreement

81.
In May 2004, at the direction of the chairman of ISRO, a High Power Committee was constituted to review the "technical feasibility, risk mitigation, time schedule, financial and organizational aspects" of the Devas project. This committee was chaired by Dr. K.N. Shankara (the "Shankara Committee").39
82.
The Shankara Committee concluded that the contemplated system of "satellite transmission [...] augmented by terrestrial transmission so as to reuse the signals seamlessly in Indian environment" was "technically sound and reliable" as well as "quite attractive." After further discussions, the Antrix Board "approved the draft agreement negotiated with Devas [and recommended by the Shankara Committee]."40
83.
The Respondent attaches significance to a "definitive binding Term Sheet" proposed by Devas on September 20, 2004 (the "Term Sheet"),41 particularly with respect to the grounds for termination and its consequences, which will be addressed in greater detail below. The Claimants, however, emphasize that the provisions of the Devas Agreement have superseded these negotiations, and consider them irrelevant as a matter of law.42

C. THE DEVAS AGREEMENT

84.
The operative version of the Devas Agreement between Devas and Antrix was concluded on January 28, 2005.43
85.
As a preliminary matter, the Claimants emphasize that this is not a case based on a breach of contract, but rather a treaty claim.44 Accordingly, the Claimants focus on the rights ensuing to Devas from the Agreement. The Respondent also closely examines the nature of Devas' rights but place additional significance on Antrix's corresponding obligations—arguing that they are limited in nature. The Parties discuss at length the following aspects of the Devas Agreement:

1. Leased Capacity

86.
The Devas Agreement provided for the lease of transponder capacity on a first satellite (identified as "PS1" or "GSAT-6") and it also gave Devas the option to lease transponders on a second satellite ("PS2" or "GSAT-6A"), which it exercised.45
87.
In essence, the Devas Agreement provided for the lease of 75% of India's S-BSS allocation (30 MHz for each satellite, for a total of 60 MHz of India's total of 80 MHz of S-BSS) and 10 MHz of the S-MSS allocated for use by DOS.46 Overall, it was agreed that 90% of the total bandwidth of the satellites was allocated to Devas, and the other 10% was allocated to DOS.47
88.
The Claimants stress that the Devas Agreement provided that the Leased Capacity would be a "Non-Preemptible service, except as specifically provided for in Article 7,"48 which gave Devas the exclusive right to the Leased Capacity.49 The Claimants also highlight that, under the Devas Agreement, Devas could assign the Leased Capacity at its sole discretion upon sixty days' advance notice to Antrix,50 which enabled Devas to undertake a range of transactions with investors.51

2. Upfront Capacity Reservation Fees

89.
Under the Devas Agreement, Devas was required to pay Antrix an upfront capacity reservation fee of the INR equivalent of USD 20 million, to be paid in three equal instalments, in order to reserve transponder capacity on the first satellite.52 The first such instalment was due upon notice from Antrix that it had received all necessary approvals for the capacity lease service for the satellite.53
90.
Within 30 months of payment of the first installment of that fee (with a 6-month grace period), ISRO was required to deliver a fully operational and ready PS1.54 Devas had to pay an upfront capacity reservation fee of the INR equivalent of USD 20 million to reserve transponder capacity on the second satellite as well.55 In addition to these upfront fees, Devas was also required to pay Antrix an ongoing annual lease fee for the transponders of the INR equivalent of USD 9 million, rising to the INR equivalent of USD 11.25 million once Devas became cash flow positive.56

3. Regulatory Approvals

91.
The activities contemplated by the Devas Agreement were subject to a number of approvals and licenses to be obtained in part by Devas and in part by Antrix. Under the Devas Agreement, Antrix was obligated to acquire "all necessary Governmental and Regulatory Approvals relating to orbital slot and frequency clearances, and funding for the satellite to facilitate DEVAS services."57 Antrix also undertook "through ISRO/DOS" to obtain clearances of all relevant international and national agencies"58 and to "provide appropriate technical assistance to Devas on a best effort basis for obtaining required operating licenses and Regulatory Approvals."59
92.
What is significant in the Respondent's view is that no governmental body of India was party to the Devas Agreement or gave any commitment to grant the necessary approvals to Devas.60 The role of the Government of India in connection with the Devas Agreement was limited to that of a regulator,61 and, accordingly, the Devas Agreement contained a comprehensive set of provisions allocating risks and responsibilities in the event that the governmental approvals required for full implementation of the project were not obtained.62

4. Delay Damages

93.
The Devas Agreement provided for "Delay Damages" of USD 416,666 per month (for a cap of USD 5 million after 12 months' delay) if Antrix failed to deliver PS1 within three years of the first upfront capacity reservation payment.63 It also provided that the failure to deliver PS1 within four years from the first payment would be a material breach of the agreement.64

5. Termination

94.
The Respondent places special emphasis on Article 7 of the Devas Agreement, setting forth the rights and obligations of the parties upon termination, which could be triggered by either party to the Agreement on a series of grounds:65

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).

95.
The Respondent emphasizes that, under these provisions, the only consequence arising from the termination of the Devas Agreement is either the retention or the refund of the upfront capacity reservation fees paid by Devas to Antrix.66
96.
The Respondent notes that the termination provisions of the Devas Agreement were heavily negotiated.67 The Respondent relies on the Term Sheet,68 which contains a set of termination provisions that are, in the Respondent's view, substantially different from those agreed by the parties in Article 7 of the Devas Agreement.69 The Term Sheet provided (i) that Antrix would "not be entitled to terminate [the agreement] except for non-payment of fees by DEVAS;"70 and (ii) that Antrix would have to pay liquidated damages, in addition to refunding amounts that may have been paid by Devas to Antrix, in case of termination for any reason other than Devas' nonpayment of fees.71
97.
Moreover, the Respondent points out that there was nothing in Devas' proposed binding term sheet that provided for liquidated damages running from Devas to Antrix in the event that Devas were to terminate the agreement for its convenience, or in the event of breach by Devas.72
98.
Ultimately, the Term Sheet was never executed, and Article 7 of the Devas Agreement, which provides for a single remedy in the event of termination for any reason, was agreed instead.73
99.
The Respondent argues that this difference between the termination provisions proposed by Devas and those agreed to by the parties in Article 7 of the Devas Agreement is significant. As a result of the negotiations, the parties' mutual intention and agreement at the time of entry into the Devas Agreement was to limit liability in the event of a termination. The maximum liability was either the retention (or refund, as the case may be) by Antrix of the upfront capacity reservation fees paid to date.74
100.
The Claimants contend that Antrix never properly invoked the termination regime in Article 7 of the Devas Agreement. Moreover, it argues, even if those provisions operated to shield Antrix from damages for its unlawful renunciation and/or repudiation of the Agreement (which is denied), Article 7 still would not provide a 'safe harbor' for India in this proceeding.75

6. Force Majeure

101.
Article 11 of the Devas Agreement provided that neither Devas nor Antrix was "liable for any failure or delay in performance of its obligations" in the event of a force majeure as defined in this Article.76
102.
A force majeure event was limited to matters "beyond reasonable control of the party affected" which prevented performance "despite all efforts of the Affected Party to prevent it or mitigate its effects."77 In the Claimants' view, this notion of force majeure cannot be reconciled with Antrix's eventual declaration of force majeure, which was premised upon a Union Cabinet policy decision and was purposefully procured by Antrix/ISRO/DOS in an effort to extricate Antrix from the Devas Agreement.78
103.
In turn, the Respondent highlights that Article 11 of the Devas Agreement defined "Force Majeure event" to include "acts of or failure to act by any governmental authority acting in its sovereign capacity."79 It is obvious, in the Respondent's view, that the Government of India had the power to take action to prevent the performance by either or both parties to the Devas Agreement.80

D. THE INITIAL DEVELOPMENT OF THE DEVAS PROJECT

1. Establishment of Corporate Infrastructure and Initial Financing

104.
According to the Claimants, shortly after the conclusion of the Devas Agreement in early 2005, Devas formed its management team and established its company infrastructure, including an office in Bangalore.81
105.
On December 1, 2005, the Union Cabinet formally approved the construction and launch of satellite PS1,82 and the Devas Agreement became effective on February 2, 2006, upon the issuance of a letter by Antrix informing Devas that it had obtained all required approvals for the Devas project83 including all the necessary frequencies and the orbital slots in which the satellites PS1 and PS2 were to operate.84
106.
The Claimants consider as significant that the Government of India worked continuously to protect its rights at the ITU in furtherance of the Devas Agreement after it came into effect.85
107.
On March 16, 2006, CC/Devas and Telcom Devas made a first round of investment of approximately USD 7.5 million each,86 part of which was used by Devas to pay the first instalment of the upfront capacity reservation fee for PS1 on June 21, 2006, pursuant to the Devas Agreement.87
108.
A second round of investment, of approximately the same amount, was made on June 18, 2007, to pay the first instalment of the upfront capacity reservation fee for PS2.88 The Claimants also procured an additional investment from Deutsche Telekom Asia ("DT Asia") that gave Devas approximately USD 75 million of additional capital as well as access to some of DT Asia's business resources.89
109.
In April 2008, representatives of Devas and Antrix attended the first of the nine design reviews of PS1, which continued until August 2010.90 Devas also secured licenses to deliver internet services throughout India91 and to conduct experimental trials,92 a first round of which successfully took place in Bangalore in September 2009 in the presence of Dr. Radhakrishnan.93

2. Delays to the Delivery of Satellites

110.
Although the Devas Agreement imposed a deadline for the launch of the satellites by June 2009 at the latest,94 Antrix was unable to meet the contractual deadline, but promised that the launch would take place in late 2009 or early 2010.95 Delivery of PS1 was subjected to further delays until September 1, 2010,96 despite efforts by Devas to supervise the completion of satellites.97
111.
Irrespective of these delays, Claimants continued to meet financial obligations and technical and strategic milestones, including a further capital injection of USD 25 million in Devas by CC/Devas, Telcom Devas, and DT Asia98 and purchase of Devas shares by DEMPL in 2009 and 2010.99 With respect to the technical and strategic aspects of the Devas project, Devas duly reported its progress to the Director of the Satellite Communication and Navigation Programs at ISRO100 and continued to successfully conduct phase II experimental trials in the summer of 2010.101
112.
Around May 2010, the Claimants allege that "the Indian press began to publish recklessly erroneous allegations about Devas and the Devas Agreement."102 In an attempt to dispel the negative reports, Devas held numerous meetings with various Indian governmental ministries in the summer and autumn of 2010, in which no concerns about the Devas Project or about Devas' allocation in the S-band were raised.103
113.
Moreover, Devas kept pressing for delivery of PS1,104 as evident from communications with Dr. Radhakrishnan;105 relevant parties at Antrix106 and the Space Commission107 spanning from July 2010 to October 2010.
114.
According to the Claimants, the last meeting between Devas and officials of ISRO, DOS and Antrix occurred on January 10, 2011,108 after which the Government of India ceased all communications.109
115.
The Claimants maintain that, as of February 2011, Devas was in a position to deliver state-of-the-art hybrid satellite and terrestrial telecommunication services across India.110
116.
The Respondent dismisses the Claimants' recitation of these factual matters as irrelevant or unhelpful to the Claimants' case, stating that none of these facts relied upon give rise to a legal claim or an acquired right of the Claimants to implement the Devas project.111

E. THE PARALLEL REVIEW PROCESS OF THE DEVAS AGREEMENT AND ITS SUBSEQUENT ANNULMENT

117.
Both Parties acknowledge that several Indian authorities undertook a unilateral review of the terms of the Devas Agreement in parallel with the initial performance of its provisions, ultimately culminating in its annulment. What follows is a summary of key events that were unbeknownst to the Claimants at the time, but occurred in parallel to the initial performance of the Devas Agreement, from 2005 to February 2011.

1. India's Internal Discussions on Security Needs for S-band Capacity

118.
In 2005, India's military and paramilitary agencies started expressing a demand for S-band capacity for non-commercial purposes.112 In the period 2005-2007, these demands took the form of reviews and projections of future S-bandwidth requirements.113 However, in September 2007, a concern emerged that if S-band spectrum was "not safeguarded against the bid of commercial operators in India, this spectrum [would] not be available for any future utilization for the military applications...which would "severely jeopardize the future Defence services plans of providing SATCOM connectivity."114
119.
The armed forces' needs for S-band spectrum continued to be reviewed in the following years.115 The Claimants remained unaware of the existence of any needs for S-band spectrum of the Indian military until the Government of India announced that the CCS had decided to annul the Devas Agreement in February 2011. According to Claimants, they were not made aware of "competing demands for S-band capacity" until the date of Antrix's termination notice."116

2. The Suresh Report

120.
The Respondent explains that, in November 2009, Mr. A. Vijay Anand, the new Joint Secretary of the Department of Space and Chief Vigilance Officer, learned of possible irregularities relating to the Devas Agreement.117 These irregularities, notably the allegedly unauthorized amendment to the minutes of a January 6, 2009 meeting of a review committee of the Technical Advisory Committee ("TAG") of the Indian Satellite Coordination Committee ("ICC"), had the effect of eliminating significant comments that had been made by the representatives of the Wireless Planning and Coordination Wing (the "WPC"), a body responsible for the issuance of an operating license and frequency allocation.118
121.
The Respondent contends that the disclosure of potential irregularities and the information obtained at the preliminary stage of this internal investigation led Dr. Radhakrishnan to institute a comprehensive review of the Devas Agreement on December 8, 2009. The review was to be conducted by a committee established through the Department of Telecommunications ("DOT") and chaired by Dr. B.N. Suresh, Director of the Indian Institute of Space and Technology (the "Suresh Committee").119
122.
The Suresh Committee acted on its mandate to review the "legal, commercial, procedural and technical aspects" of the Devas Agreement120 and produced a report dated May 2010 (the "Suresh Report").121 However, its existence was not made public until the February 8, 2011 press conference.122
123.
While the Suresh Report made certain suggestions concerning future contractual negotiations by Antrix and ISRO, the Claimants highlight that it did not find any fault in Devas' conduct in reaching the Agreement.123 In particular, the Suresh Report noted that there was "absolutely no doubt on the technical soundness of the digital multimedia services as proposed in this hybrid satellite and terrestrial system."124 Nor did the Suresh Report suggest that the Devas Agreement should be annulled because there was an overwhelming military need for S-band spectrum.125 Instead, say the Claimants, the report contradicts India's case that there was a military need for all available S-band:

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

124.
In response, the Respondent submits, Dr. Suresh remarked that only 10% of the capacity to be leased under the Devas Agreement would be available for ISRO, which "would bring in certain limitations on the availability of spectrum for any essential demands in future." Moreover, he recommended that:

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

125.
In any event, the Respondent notes that the Devas Agreement was ultimately cancelled for national security reasons based on the nation's strategic requirements for the spectrum, which had crystallized by the end of 2009.128

3. The Space Commission's Determination to Annul the Devas Agreement

126.
The Parties disagree as to why DOS decided to pursue the review of the Devas Agreement after the Suresh Report was issued.
127.
In this regard, the Claimants emphasize that, towards the end of May 2010, the media in India had begun making assertions that DOS had given away valuable S-band spectrum to Devas "on the quiet" and calling on the Government of India to annul the Agreement.129 However, according to the Claimants, despite the negative press reports, in the numerous meetings held with various Indian governmental ministries during the summer and autumn of 2010, in particular with the Advisor to the Prime Minister and the National Security Advisor where Devas delivered presentations on its history, accomplishments and progress on collaboration with the Government of India,130 no concerns about the Devas Project or about Devas' allocation in the S-band were raised.131
128.
In the Claimants' perspective, it was the prospect of a further government scandal that caused Dr. Radhakrishnan to seek to cancel the Devas Agreement and execute his "termination plan," and not any "crystalized" need of the military.132 To support this contention, the Claimants rely on a number of communications from DOT to Mr. Balachandhran, Additional Secretary of ISRO, and to Dr. Radhakrishnan dated June 4, 2010 and June 14, 2010, respectively enclosing two newspaper articles and asking both officials to expedite their comments on them.133 Following such communications, Mr. Balachandhran requested Antrix immediately to provide six copies of the Devas Agreement, which was done the same day.134 The allegation of the Claimants is that, "within two days of receiving the unwelcome news of another potential government scandal,"135 on June 16, 2010, Dr. Radhakrishnan sought ways of annulling the Devas Agreement by sending two memoranda to the DOT and the Ministry of Law and Justice seeking advice as to how to annul the Devas Agreement.136
129.
In reply, the Respondent produces a letter from the Ministry of Defence addressed to the ISRO dated April 23, 2010 in which the latter provided its estimated bandwidth requirements in respect of Army, Airforce and Navy up to year 2022.137 In accordance with the letter, the demand for S-band in particular would increase up to 52.5 MHz by 2017 and to 102.5 MHz by 2022. The Respondent further cites the letter from Dr. Suresh to Dr. Radhakrishnan dated June 7, 2010 to prove the delivery of the Suresh Report to the latter on the same date.138
130.
The Respondent explains that the two memoranda from Dr. Radhakrishnan on June 16, 2010 only followed the letter from the Ministry of Defence and the receipt of the Suresh Report, rather than the two newspaper articles as the Claimants assert.139 The purpose of these memoranda, contrary to the Claimant's allegation, was to consult DOT and the Ministry of Law and Justice regarding whether, rather than how, the Devas Agreement needed to be annulled in order firstly, to preserve the S-band spectrum for the strategic requirements of the nation and, secondly, to ensure a level playing field for the other service providers using terrestrial spectrum.140
131.
In a note responding to Dr. Radhakrishnan's memorandum, Mr. Viswanathan, Advisor to the Minister for Law and Justice, indicated that, during a discussion with Dr. Radhakrishnan, it was mentioned that after the conclusion of the Devas Agreement new strategic needs emerged which required accommodation in the S-band.141 He noted that, given that Devas Agreement would give Devas 90% of the capacity of the satellites in the S-band, the result was that there would be little space available in the satellite for catering for strategic demands.142 The Advisor also gave his opinion as to how the Agreement could be annulled through the invocation of its termination provisions.143
132.
On the other hand, DOT advised Dr. Radhakrishnan that "the spectrum planned by DOS for strategic use is not to be shared with commercial applications as in the case of [Devas]."144 Considering that the Devas Agreement would allow Devas to offer BWA services in India, DOT further noted that in India, in accordance with the 2008 National Frequency Allocation Plan, only a part of the S-band "has been enabled for BWA applications in view of the satellite based strategic requirement projected by DOS."145 Regarding the potential terrestrial use of the S-band, DOT mentioned the recommendation of the Telecom Regulatory Authority of India (the "TRAI") that "spectrum other than the band 800, 900 and 1900 should be auctioned."146
133.
Following DOS' consultations with DOT and the Ministry of Law and Justice, DOS requested from Antrix the reports of its financials since inception and those of Devas and was provided therewith.147 Through Dr. Radhakrishnan, DOS brought the Devas Agreement to the attention of the Space Commission, in the form of a note during a regularly scheduled meeting,148 and sought guidance on a further course of action.149 In this note, DOS referred to three reasons for examining the Devas Agreement—the demands of strategic requirements; the opaqueness of the Agreement, which did not observe the principle of non-exclusiveness when allotting S-band to private players; and the lack of consultation with DOT over a service that includes terrestrial connectivity.150 The Claimants point to a statement in this note to the effect that, on June 16, 2010, when Dr. Radhakrishnan approached the Ministry of Law and Justice for the above reasons, he did so "to request Ministry of Law and Justice to give its opinion as to how to annul the contract."151
134.
After its deliberations, the Space Commission concluded that DOS, "in view of priority to be given to nation's strategic requirements including societal ones may take actions necessary and instruct [Antrix] to annul the [Devas Agreement],"152 and that "Department may evolve a revised utilization plan for GSAT-6 and GSAT-6A satellites, taking into account the strategic and societal imperatives of the country."153

4. The Opinion of the Additional Solicitor-General

135.
Subsequent to the determination of the Space Commission, DOS sought the opinion of Mr. Mohan Parasaran, the ASG of India, on whether the Devas Agreement could "be annulled by invoking any of the provisions of the contract in order to (i) preserve precious S-band spectrum for strategic requirements of [India] and (ii) to ensure a level playing field for other service providers using terrestrial spectrum."154 The ASG issued his Opinion on July 12, 2010 (the "Opinion of the ASG").155
136.
The Opinion of the ASG revisited the background of the Devas Agreement and India's need of the S-band spectrum "for strategic and societal applications" of several Indian agencies, including the armed forces and Indian Railways.156 Thereafter, the Opinion of the ASG reviewed the terms of the Devas Agreement to identify "justifiable or legal grounds existing for [its] termination,"157 namely Article 11(b) of the Agreement, containing the force majeure clause.
137.
The Opinion of the ASG concluded that "any policy taken by the Government of India with regard to allocation and use of S bandwith [sic] [...] would fall within the doctrine of force majeure, as envisaged in the [Devas Agreement]," and it considered "more prudent" that such decision be taken by means of "a policy decision having the seal and approval of the Cabinet," and not by DOT, since "to disable one of the parties to perform its obligations under the contract, the act must be an act by the governmental authority acting in its sovereign capacity."158
138.
In the Claimants' view, the Opinion of the ASG suggests that the Respondent was to concoct a force majeure event based on a "policy" decision having the "seal and approval of the Cabinet,"159 and on India's new alleged needs for national strategic requirements for the S-band spectrum that had been allocated to Devas, even though no such need was ever expressed to Devas in its many meetings with India's government agencies and officials.160
139.
The Respondent rejects the Claimants' characterization of the Opinion of the ASG, maintaining that there is no indication that the security reasons motivating the decision were contrived, concocted, engineered or fabricated or that the Devas Agreement should be terminated for commercial reasons. According to the Respondent, the Opinion of the ASG merely reflects the view that the Government of India had the absolute right to terminate the Devas Agreement for legitimate security grounds.161

5. DOS' Note for the CCS and the CCS' Decision to Annul the Devas Agreement

140.
The Respondent explains that, as mandated by the Space Commission in its decisions taken at its July 2, 2010 meeting, the Additional Secretary of the Department of Space, Mr. G. Balachandhran, was asked to review the Suresh Report and provide his comments so that appropriate internal actions could be taken.162
141.
Mr. Balachandhran issued his report on January 9, 2011 (the "Balachandhran Report").163 According to the Balachandhran Report, the allocation of S-band spectrum to Devas under the Devas Agreement would not "leave enough spectrum for ISRO/DOS use if required"164 and expressed views that "[s]trategic and other essential needs of [India] should be the first priority"165 in any such allocation. In this regard, the Balachandhran Report noted that Antrix had failed to consult with the ICC regarding the national needs of S-band spectrum prior to the conclusion of the Devas Agreement.166 The Balachandhran Report concluded that the termination of the Devas Agreement ordered by the Space Commission "need[s to] be expedited."167
143.
DOS also commissioned Mr. Balachandhran with the preparation of a Note for the CCS, which was finalized on February 16, 2011 (the "Note for the CCS").170
144.
The stated purpose of the Note for the CCS was to seek approval of the CCS for the annulment of the Devas Agreement "in view of priority to be given to nation's strategic requirements including societal ones."171 This Note also identified a number of demands for S-band spectrum from several defence and security agencies in India172 and summarized the deliberations of the July 2010 meeting of the Space Commission.173
145.
On February 9, 2011, the Indian Prime Minister constituted a "High Powered Review Committee" chaired by Mr. B.K. Chaturvedi (the "Chaturvedi Committee").174 The Chaturvedi Committee's mandate was the same as for the Suresh Committee (i.e. "review the technical, commercial, procedural and financial aspects of the [Devas Agreement]"),175 but it was also required to "tak[e] into account the report of internal review conducted by [DOS]," as well as the "review mandated by the Space Commission at its [...] meeting, held on July 2, 2010."176
146.
On February 17, 2011, the CCS took the decision to annul the Devas Agreement. On the same day, the Government of India issued a press release announcing that the CCS had decided to annul the Devas Agreement. The press release reads in full:

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

147.
On March 12, 2011, the Chaturvedi Committee issued its report (the "Chaturvedi Report").179
148.
According to the Claimants, the Chaturvedi Report implies that the foreign ownership of Devas was a further motivating factor in the Government of India's decision to annul the Devas Agreement.180
149.
The Respondent submits that two further commissions of enquiry reviewed the Devas Agreement.
150.
First, following the issuance of the Chaturvedi Report, Mr. K.M. Chandrasekhar of the Cabinet Secretariat was asked to examine its findings and to submit recommendations to DOS, which took the form of a report issued on April 12, 2011 (the "Chandrasekhar Report").181
151.
The Respondent notes that the Chandrasekhar Report questioned Devas' need for "such a huge bandwidth;" and mentioned that the Chaturvedi Report characterized the allocation of S-band to Devas as "an unjustified risk from the security point of view;" and signaled that full discussion of Devas' proposal at the ICC182 would have enabled a well-considered assessment of how the national interests of India could have been best served.183
152.
Second, in accordance with a recommendation of the Chaturvedi Committee, a High Level Team Committee was constituted by the Government of India to review the technical, commercial, procedural and financial aspects of the Devas Agreement, which noted, in its September 2, 20011 report, several irregularities with Devas' financing and recommended consideration of sanctions against some officials.184

F. THE PERIOD FOLLOWING THE ANNULMENT OF THE DEVAS AGREEMENT

1. Initial Reactions of Devas and Antrix to the Annulment of the Devas Agreement

153.
According to the Claimants, following the announcement regarding the annulment of the Devas Agreement,185 Devas attempted to communicate several times with Dr. Radhakrishnan without success.186
154.
On February 25, 2011, Antrix issued a letter to Devas giving notice of termination of the Devas Agreement.187
155.
In response, Devas objected to the validity of the termination notice188 and attempted, unsuccessfully, to hold "senior management" consultations in conformity with the pre-dispute procedures in Article 20 of the Devas Agreement.189
156.
On April 15, 2011, Antrix tendered Devas a check for the INR equivalent of USD 13 million as reimbursement of the upfront capacity reservation fees that Devas had already paid to Antrix pursuant to Article 7(c) of the Devas Agreement.190 In a matter of days, Devas returned Antrix's check, arguing that Antrix had failed to state a proper basis for terminating the Devas Agreement and that the events allegedly giving rise to Antrix's claim of force majeure were self-induced.191
157.
Finally, the Claimants allege that, since 2011, Devas has been subject to a range of harassing measures from various parts of the Indian government, including its Registry of Companies, India's enforcement directorate, tax authorities and other government entities.192 The Claimants characterize these measures as retaliation in response to the exercise of rights by Devas and the Claimants, respectively.193

2. The Satellites

158.
According to the Respondent, DOS has made alterations to the two satellites to conform them to defence needs,194 and the GSAT-6 satellite was scheduled to be launched at the end of 2014.195 A successful launch was achieved on August 27, 2015.196
159.
On August 31, 2015, the Respondent submitted a set of documents in connection with the launch of the GSAT-6 satellite. The documents consist of five newspaper articles and a note from Mr. V.K. Pant, Assistant Wireless Adviser, in DOT. The articles refer to the launch of a military satellite but simultaneously indicate that the satellite is utilized to serve the "strategic sector" and "various government purposes". The note contains an extract of the document issued by the Cabinet to the Ministry of Defence on March 12, 2015 which reads: "The band segments (a) 2500-2635 MHz (35MHz) (b) 2555-2535 MHz (80 MHz) and (c) 2655-2690 MHz (35 MHz) will be used for Defence, security and societal applications."
160.
The Respondent further submitted an article published by the Institute of Defence Studies and Analyses on October 5, 2015 which, according to the Respondent, "reviewed the launch and its significance for the military."

3. Related Arbitration Proceedings

161.
As noted above, on June 29, 2011 Devas commenced an arbitration under the ICC rules pursuant to Article 20 of the Devas Agreement, captioned Devas Multimedia (Private) Limited v. Antrix Corp. Ltd. (No. 18051/CYK), in which Devas sought both specific performance of the Devas Agreement and/or damages.197 On 14 September 2015, a final award was issued in this Arbitration, which was communicated, by agreement of the Parties, to the present Tribunal on October 2, 2015. Under that award, Antrix was ordered to pay USD 562.5 million to Devas Multimedia Private Limited for damages caused by Antrix's wrongful repudiation of the Devas Agreement, plus interest.
162.
The Respondent also notes that DT Asia (Devas' other major shareholder together with the Claimants) has instituted a third arbitration against India arising out of the same facts but under the bilateral investment treaty between Germany and India.198
163.
Pursuant to mutual agreement, the Parties made simultaneous submissions on October 9 and 19, 2015 as to what significance, if any, the ICC final award might have on the deliberations of this Tribunal. While drawing different conclusions from various parts of the ICC award, both Parties recognized that the two arbitrations involve distinct claims, parties, and remedies.
164.
Reference was made by the Claimants to the final award of the ICSID tribunal in Mobil v. Venezuela.199 In that instance, one of the claimants, Mobil Cerro Negro, had brought separate ICC proceedings against two State-owned companies, under one of their agreements providing for indemnity in the event of certain alleged discriminatory government measures.
165.
When considering the effects of the prior ICC arbitration, the ICSID tribunal observed:

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

166.
Similarly, in the present case, there are major differences with the ICC case. First of all, the parties are different; neither Devas Multimedia (Private) Limited (the claimant in the ICC case) nor Antrix (the respondent) are parties to this case. Secondly, the proceedings in this case relate to the responsibility of the State of India for alleged breaches of the Treaty and international law, while the ICC tribunal was strictly concerned with Antrix's contractual liability under the Agreement. It dealt more specifically with the actions of Dr. Radhakrishnan in his capacity as Chairman of Antrix. It also referred to some of his activities in his other functions. In that respect, it considered some of the same facts as those submitted to this Tribunal; in fact, the Tribunal was informed by the Claimants in their response of October 19, 2015 that, during the ICC proceedings, the Respondent had provided the tribunal with the whole transcript of the hearing in this case. However, what this Tribunal is called upon to address is not whether Antrix breached its contractual obligations but whether the State of India, acting in its sovereign capacity and through the appropriate authority, properly invoked the protection of its essential security interests when it decided to annul the Devas Agreement or whether, in doing so, it breached its obligations under the Treaty and international law. This is the issue which this Tribunal will be addressing in the rest of this award. While the Tribunal should "attempt to avoid inconsistent outcomes whenever possible,"201 one can readily conceive situations where Antrix's liability would be incurred under the Agreement and some where the Respondent's would be exempt of liability under the Treaty and vice-versa.

CHAPTER IV REQUESTS FOR RELIEF

167.
The Claimants request that the Tribunal issue an award:

(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

168.
The Respondent requests that "all claims raised by [the] Claimants should be dismissed and all costs arising of this proceeding should be assessed against [the] Claimants."203

CHAPTER V - THE MEANING OF "INVESTMENT" FOR THE PURPOSES OF THE TREATY

A. THE PARTIES' ARGUMENTS

170.
Article 1(1)(a) of the Treaty defines an "investment" as "every kind of asset established or acquired under the relevant laws and regulations of the Contracting Party in whose territory the investment is made." Moreover, Article 2 of the Treaty restricts the scope of the Treaty to "investments made by investors of either Contracting Party in the territory of the other Contracting Party, accepted as such in accordance with its laws and regulations."

1. The Respondent's Position

171.
The Respondent's primary contention is that this case "only involves pre-investment activities that are outside the scope of protection afforded by the [Treaty]."204 In support, the Respondent relies on the "admission clause model" adopted in its BITs, which only extends protection to "assets invested and admitted in accordance with the laws and regulations of the host State," and not to "pre-investment activities,"205 and advances authorities to that effect.206
172.
According to the Respondent, the Devas Agreement is clear that certain essential governmental licences and approvals were prerequisites to the project, including the orbital slot frequency allocation for the satellites and the WPC License.207 Accordingly, Devas' failure to apply for the WPC License rendered all activities conducted by Devas as being properly characterized as "pre-investments."208
173.
The Respondent refers to the WPC, the body within DOT from which, it says, Devas would have been required to seek its operating license and frequency allocation (the "WPC License").209 According to the Respondent, the policy decision of the CCS not only meant that the Devas Agreement would be terminated, but it also left no doubt that no license could be issued to Devas to operate the Devas System and therefore Devas would be unable to obtain the requisite licenses under the Devas Agreement.210
174.
The Respondent focuses on a terrestrial spectrum license to be issued by the WPC.211 In this regard, the Respondent refers to Devas' Statement of Claim in the ICC arbitration, wherein Devas acknowledges that it "fully expected that it would be granted a [WPC License] once the GSAT-6 satellite had been launched," that Devas was preparing a license application to the WPC and that Devas "was [...] in a position to submit this application just as soon as the satellite launch date and vehicle were identified by ISRO."212
175.
In this regard, the Respondent argues that any preparatory steps cannot be equated with the grant of a license, which Devas needed, did not have, and had no legal right to obtain, as it was for the Government of India to determine whether a license could be issued.213
176.
The Respondent submits that the Statement of Claim plainly demonstrates Devas' awareness that it had no right to obtain the WPC License.214 The Respondent claims that Devas was deliberately deferring the submission of its WPC License application until after the satellites were launched in order to place itself in the position of being the only alternative, "as a practical matter," capable of using the S-band spectrum allocated to it.215 Devas would have then been in a position to force the Government of India (i.e. the TRAI) to change its policy216 regarding BSS, which would have been necessary to obtain the specific WPC License for BSS that Devas needed in order to provide Devas Services.217
177.
According to the Respondent, other items in the record also demonstrated Devas' knowledge that it had no acquired right to obtain the WPC License.218 First, the negotiating history of the Devas Agreement shows that Antrix went from being required to obtain "clearances, licenses, and other approvals" for "frequency allocation" (including terrestrial augmentation) in the Term Sheet,219 to providing "appropriate technical assistance... on a best efforts basis" in the Devas Agreement.220 Also, Devas itself acknowledged that ISRO's support would be critical in the license application,221 which suggests that obtaining such authorization was not a matter of certainty.222
178.
Moreover, regardless of the policy decision of the CCS and of the fact that Devas had no acquired right to obtain the WPC License, the Respondent notes that Devas would still have had to participate in a public auction of all the S-band spectrum to be used for terrestrial services, as the TRAI recommended in July 2008 and the WPC confirmed in 2010.223 According to the Respondent, this poses a significant hurdle as the auction price for the terrestrial use of the spectrum would have been USD 1.24 billion, which would have substantially diminished the net present value of Devas.224
179.
Also, the Respondent alleges that, under a long-standing TRAI policy, new terrestrial services such as those proposed by Devas would have been subjected to review and analysis by the TRAI. Moreover, other stakeholders would have been notified and given an opportunity to comment,225 including the terrestrial operators of telecommunication services who, as conceded by the Claimants, had been clamoring for more spectrum—including the S-band—for the expansion of their services.226
182.
In addition to the failure of the Claimant to obtain the WPC License, the Respondent also criticizes the Claimants' failure to "identify precisely the investment in question," which it argues is not the Claimants' shares in Devas,233 but the allegedly binding right to proceed with the Devas project pursuant to the Devas Agreement.234 To this end, the Respondent considers that the critical and dispositive issue is that the relevant approvals were not obtained; without them the project could not proceed; and that Devas had no contractual right to obtain those approvals.235

2. The Claimants' Position

183.
According to the Claimants, the Respondent misconstrues both Articles 1 and 2 of the Treaty and fails to take into account the actual facts concerning the Claimants' investments.236 The Claimants argue that "the facts show that the investments indeed were admitted in accordance with Indian law."237
184.
The Claimants recall that the relevant "investments" comprise their respective shareholding interests in Devas; and partial indirect ownership of Devas' business assets.238 In arguing that their shareholding interests qualified as "investments" falling within the scope of Articles 1 and 2, the Claimants rely on the general and specific definitions of "investment" pursuant to Article 1(a)(1) and the prior approval obtained from the Foreign Investment Promotion Board as evidencing acceptance "in accordance with [India's] laws and regulations."239 On the Claimants' submission, the statement in Article 2 of the Treaty that an investment must be "accepted as such" under Indian law means only that the investment must comply with laws governing admission of foreign investments.240
185.
Turning to the indirect ownership of Devas' assets, the Claimants' assert that the contractual rights under the Devas Agreement and the proprietary Devas System satisfy the general and specific definitions of "investment" contained in Article 1(a)(1).241 The Claimants do not dispute the need for a license from the WPC in order for Devas to operate the terrestrial portion of the hybrid Devas System.242 However, the Claimants reject India's attempt to characterize its activities as "preinvestment" by reference to the approvals obtained from DOS officials and the Shankara Committee and confirmation by Antrix dated February 2, 2006, that ISRO had the "necessary approval for building, launching and leasing the capacity of S-band satellite."243
186.
In the Claimants' view, the record shows that India—including through Antrix, DOS, ISRO and the WPC—had consistently and proactively supported the Devas Agreement and System for approximately six years. Had India continued to deliver on Antrix's commitment, the Claimants consider it inconceivable that the WPC License would not have been granted.244 In this regard, the Claimants point out that Devas started preparing its application for the Licence; however it did not receive any answer.245 Relevantly, the Claimants point to the obligation of DOS/ISRO/Antrix to provide technical assistance under the Devas Agreement, which included jointly approaching the WPC with Devas when applying for this license.246

B. THE TRIBUNAL'S ANALYSIS

1. The Devas Agreement

193.
There is no disagreement between the Parties with regard to the fact that the Devas Agreement was concluded on January 25, 2005,261 nor with regards to the fact that, at the Respondent's insistence, the Agreement was signed by Antrix, "the marketing arm of [the] Department of Space and [...] the entity through which ISRO engages in commercial activities."262 Under the Agreement, a number of approvals and licenses had to be obtained in part by Devas and in part by Antrix.
194.
The Respondent argues that no governmental body was party to the Agreement or gave any commitment to grant the necessary approvals and licenses required under the Agreement.263 In its view, as long as the WPC License was not obtained, the only recourses that the Claimants might have were the ones against Antrix provided for under the Agreement.264
195.
The present case is not a recourse against Antrix but a recourse against the State of India for alleged breaches of the applicable Treaty. It is under the provisions of that Treaty that the Tribunal must determine whether the Claimants qualify as investors.

2. Investment Under the Treaty

196.
The question that the Tribunal has to address is a double-barreled one. It is whether the Claimants are investors under the Treaty and, if so, whether they have made qualifying investments under it.
197.
The Respondent does not dispute that the Claimants are "investors" as defined under Article 1(1)(b) of the Treaty, being corporations "incorporated or constituted in accordance with the law of [a] Contracting Party," i.e. Mauritius.
198.
The disagreement between the Parties is whether the dispute is in relation to an investment as defined in Article 1(1)(a) of the Treaty. This Article, as in many other investment protection treaties, contains a very broad definition of "investment." It covers:

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.

CHAPTER VI - THE "ESSENTIAL SECURITY INTERESTS" PROVISION

A. INTERPRETATION OF ARTICLE 11(3) OF THE TREATY IN CONTEXT

211.
Article 11(3) of the Treaty provides:

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.

212.
The Respondent's defence in this case rests on the "essential security interests" of the State, as defined in this Article. The Parties have raised both legal and factual issues in connection with this defence and before analyzing the facts relating to this issue, the Tribunal will first set out its views on the legal interpretation to be given to Article 11(3) of the Treaty and other matters raised by the Claimants relating to Articles 11(1) and 11(4), which can be summarized in the following questions:

(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?

1. What Constitutes "Essential Security Interests"?

a. Can "Essential Security Interests" Be Construed as a Matter of Selfjudgment by the Respondent?

i. The Respondent's Position

213.
The Respondent submits that Article 11(3) of the Treaty is of "central importance [...] on the facts of this case"275 as it entitles India "to take measures directed to the protection of its essential security interests without incurring responsibility under any substantive provision of the [...] Treaty otherwise providing protection to investors."276
214.
The Respondent considers that the Tribunal may only examine whether a measure is related to national security matters. The Respondent argues that the Tribunal may not "sit as a supranational regulatory or policy-making body to review the policy decisions of the Cabinet Committee on Security" as national authorities "are uniquely positioned to determine what constitutes a State's essential security interests in any particular circumstance and what measures should be adopted to safeguard those interests."277
215.
The Respondent refers to an UNCTAD study on a clause of the Peru-Singapore investment treaty which contains language identical to Article 11(3) of the Mauritius-India BIT. That study considers that this provision "establishes objective conditions for invoking the (security) exception, (but its) practical effect comes very close to a self-judging clause."278

ii. The Claimants' Position

216.

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

217.
Moreover, the Claimants submit that the language of this provision affords no basis for inferring that its application is self-judging. Such an application, according to the Claimants, requires "clear and specific language,"282 which is notably absent in the present case.

iii. The Tribunal's Analysis

218.
This first question can be disposed of quickly in this case as the Respondent itself has stated that it is not arguing that "India (or Peru, or any other State having a treaty with a similar provision [to Article 11(3) of the Treaty]) can dismiss any case simply by saying that it considers the actions forming the basis of the claim to be in its 'essential security interests.'"283
220.
However, while the Parties agree that the Tribunal may examine whether the preconditions to invoke the essential security clause have been met, they disagree as to the meaning or content of the preconditions laid down in the clause. The Tribunal must therefore address the following question.

b. What Conditions Must the Respondent Meet to Show that its Measures Were "Directed to the Protection of its Essential Security Interests"?

i. The Respondent's Position

221.
The Respondent argues that the determinations by national authorities as to what constitutes "essential security interests" should be afforded "a wide measure of deference"287—a view that it says is supported by commentators and international jurisprudence.288 Essentially, the Respondent cautions against "second-guessing" by international tribunals of national security determinations made by national authorities.289 The Respondent refers again, in that respect, to the UNCTAD study on the Peru-Singapore investment and notes that "only in extreme cases will an arbitral tribunal conclude that the host country measure has no relation whatsoever to the national security interests of a party."290
222.
In the present case, the Respondent contends that the policy decision of the CCS, in its capacity as the highest authority in India for matters of internal and external security and defence, takes into consideration the growing demands of the Indian military for S-band capacity, which undoubtedly form part of the Respondent's essential security interests.291 Furthermore, the Respondent refers to the express terms of the decision of the CCS and the extensive record, which plainly reflect the strategic needs for spectrum capacity.292 Moreover, the fact that the Claimants were not included in the national security deliberations, of which the Claimants complain, is not significant given the sensitive nature of such issues.293
223.
The Respondent criticizes the Claimants' failure to engage directly on this provision and characterizes its only submission as a suggestion that the Tribunal "disregard all [...] evidence and hold that the entire national security establishment of the Government acted in bad faith and with no motive other than to cause damage to Devas and its shareholders."294 Such an argument, the Respondent contends, "cannot be countenanced under well-established principles of both Indian and international law."295

ii. The Claimants' Position

224.
Given that India's claim to essential security is not self-judging, the Claimants submit that an international tribunal has the power to conduct "an objective inquiry into whether an essential security clause was validly invoked and whether its conditions are satisfied."296 The Claimants do not accept that India has made out the requisite elements by reference to the evidentiary record, which has not established that the measures were "directed at any security interest"297 and, in any event, the "disproportionate and gratuitous nature" of these measures "fails to meet the standard of necessity observed by customary international law."298
225.
As to the Claimants, they consider that two objective preconditions need to be fulfilled for the essential security clause to be triggered.

• 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

226.
The Claimants engage in a word-by-word analysis of the essential security clause to define the meaning of the objective conditions that are required to invoke the security exception.
227.
First, according the Claimants, the use of the words "directed to" in the Article 11(3) implies that the Respondent's measures in question must have been "aimed at the protection of India's security interests." Measures that are not actually directed at the protection of such interests do not qualify.301
228.
Second, the use of the word "essential" implies that the security interest in question must be so "vital.absolutely necessary; extremely important" such that protection is warranted. According to the Claimants, the literal meaning of the term "essential" is "important.absolutely necessary, indispensably requisite.unavoidable;"302 The Claimants invoke several legal authorities in support of this statement, including the following:

• 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).

iii. The Tribunal's Analysis

229.
The Tribunal faces two distinct issues. The first issue concerns the interpretation of the terms of Article 11(3) of the Treaty, which vies to determine the exact conditions that are required by this provision to trigger an "essential security interests" exception, including in particular, whether Article 11(3) includes a requirement of necessity to display its effects. A separate question concerns whether the standard of necessity under customary international may apply, regardless of the terms of the Treaty, in invoking the "essential security interests" clause.
230.
As to the first issue, the Tribunal is faced with elucidating the meaning of Article 11(3) of the Treaty within the framework of Articles 31 and 32 of the Vienna Convention on the Law of Treaties (the "VCLT").
231.
Article 31 of the VCLT makes clear that any interpretation must rest primarily on the ordinary meaning of the text of the treaty, only to be supplemented by considerations of content, object and purpose if the ordinary meaning of the text is not clear. In performing this exercise of interpretation, the Tribunal must be particularly cautious not to rephrase or otherwise alter the plain meaning of the text, which is considered to reflect the common intention of the Contracting Parties.308 In the words of the El Paso v. Argentina tribunal, "the content of the treaty's provisions is paramount, and what is not there cannot be read into them."309
232.
Also, pursuant to Article 32 of the VCLT, the Tribunal may only resort to supplementary means of interpretation if the outcome of an interpretation conducted under Article 31 of the VCLT "leaves the meaning ambiguous or obscure, or.leads to a result which is manifestly absurd or unreasonable."
233.
The first condition laid down in Article 11(3) of the Treaty that the Tribunal must consider concerns the nexus that must exist between the State measures at stake and the essential security interests of the State for the exception to be triggered, which is embodied in the terms "directed to."
234.
In that respect, the Tribunal is mindful of the broad terms of Article 11(3) of the Treaty. It clearly provides that the Treaty "shall not in any way limit the right of either Contracting Party to apply prohibitions or restrictions of any kind or to take any action which is directed to the protection of its essential security interests." [Tribunal's underlining.]
235.
In the Tribunal's view, while these terms provide the State with considerable freedom as to the action it can take, it is important to note that such action must be directed not to any security interest but only to "essential security interests." Measures that would not actually be directed to the protection of the essential security interests would not qualify.
236.
This parameter will guide the Tribunal when applying the law to the facts of this case.
237.
However, the Parties disagree on the existence of a requirement of necessity in Article 11(3) of the Treaty, such that the "essential security interests" exception could only be triggered when the State measures are "necessary" for the protection of the State's national security.
238.
It is worth noting that the word "necessity" or any reference thereof is absent in the ESI clause. By contrast, all of the cases on which the Claimants rely to advance a requirement of necessity are based on a Treaty in which the relevant ESI clause expressly contains the word "necessary" and therefore included necessity as an objective precondition for provoking the exception. In particular, CMS,310Enron,311Sempra,312LG&E,313Continental Casualty314 and El Paso315 were all brought under the aegis of the 1991 Argentina-U.S. BIT which reads at Article XI: "(t)his treaty shall not preclude the application by either Party of measures necessary [Tribunal's underlining] for the maintenance of public order, the fulfilment of its obligations with respect to the maintenance or the restoration of international peace or security, the protection of its own essential security interests."
239.
The UNCTAD study mentioned above identifies four basic approaches relating to the issue of necessity in international investment agreements ("IIAs"): (1) self-judging clauses; (2) necessity as objective precondition; (3) no reference to necessity; and (4) exclusion of judicial review.
240.
That study clearly brings the Mauritius-India BIT under the third category where there is no mention of the requirement of necessity and it is sufficient that the measures be "directed to the protection of its essential security interests." As an example, it refers specifically to the Hungary-India BIT (2003) which contains a national security clause practically identical with the present one. Article 12 of that BIT reads in part as follows: "[…] nothing in this Agreement precludes the host Contracting Party from taking action for the protection of its essential security interests or in circumstances of extreme emergency in accordance with its laws normally and reasonably applied on a non-discriminatory basis." [Tribunal's underlining.] The Study also mentions the Peru-Singapore BIT (2003) which uses wording similar to the Mauritius-India BIT. Its Article 11 reads as follows: "The provisions of this Agreement shall not in any away limit the right of either Contracting Party to apply prohibitions or restrictions of any kind or to 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 and pests in animals or plants." [Tribunal's underlining.]
241.
The UNCTAD study concludes as follows: "Although the two examples above establish objective conditions for invoking the exception, their practical effect comes very close to a self-judging clause. Only in extreme cases will an arbitral tribunal conclude that the host country measure has no relation whatsoever to the national security interests of a party." This would caution against imposing a requirement of necessity in ESI clauses unless it can be clearly inferred from the terms of the clause. In the words of the El Paso v. Argentina tribunal: "... the content of the treaty's provision is paramount, and what is not there cannot be read into them."316

2. Does Article 11(1) of the Treaty Allow for the Introduction of Customary InternationalLaw Restrictions Imposed on a State of Necessity Defence?

a. The Claimants' Position

246.
In addition to invoking a "necessity" requirement into Article 11(3) of the Treaty, the Claimants argue that, by virtue of Article 11(1), the Respondent must demonstrate that it meets the conditions of a state of necessity defence under customary international law.

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.

247.
According to the Claimants,322 Article 11(1) applies to Article 11(3), thereby allowing them to claim the more restrictive standards imposed upon the Respondent by Article 25 of the ILC Articles on State Responsibility concerning a state of necessity defence. These Articles are considered as a consolidation of current customary international law.
248.
Article 25 reads as follows:

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

249.

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

b. The Respondent's Position

250.
The Respondent argues that Article 11(1) of the Treaty is not a vehicle which allows bringing Article 25 of the ILC Articles into this case. According to it, Article 11(1) is nothing but a "preservation of rights" clause—which provides that the Treaty is not designed to take away substantive protections offered by international law—but "has nothing to do with the state of necessity defence incorporated in Article 25 of the ILC Articles, which does not confer benefits on private investors, but rather outlines a defence available to States under customary international law."328
251.
Moreover, pointing out the clear and categorical text of Article 11(3) which states that "(t)he provisions of this Agreement shall not limit in any way the right" of the State to protect its essential security interests, the Respondent argues that Article 11(1) cannot negate the applicability of Article 11(3).329

c. The Tribunal's Analysis

252.

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).

253.
However, in face of the very clear and strong wording of Article 11(3), it would be strange to give Article 11(1) preponderance over it. Indeed, Article 11(3) provides that "(t)he 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 […]" [Tribunal's underlining.]
254.
Secondly, the Respondent is right in pointing out that the "preservation of rights" under Article 11(1) of the Treaty has nothing to do with the "state of necessity" defence which, under customary international law, is available to a State as a ground for precluding the wrongfulness of an act which would otherwise be in breach of an international obligation of that State.
255.
Finally, the Respondent in the present case is not invoking a state of necessity defence under customary international law but, instead, the specific provision of Article 11(3) of the Treaty concerning the protection of its essential security interest and it is the analysis of that provision which will guide the Tribunal in determining whether or not the Respondent is in breach of the Treaty.
256.
The Tribunal therefore concludes that the conditions attached to the state of necessity defence under customary international law are not applicable in the present situation. The Tribunal observes that this approach is consistent with that taken by the tribunal in Continental Casualty v. Argentina331 and the annulment committee in CMS v. Argentina.332

3. Can the Claimants Invoke Article 11(4) of the Treaty?

257.
Article 11(4) of the Treaty provides:

Each Contracting Party shall, however, honour any obligation it may have entered into with regard to investments of investors of the other Contracting Party.

a. The Claimants' Position

258.
The Claimants advance two arguments based on Article 11(4) to preclude the Respondent from invoking the "essential security interests" provision. First, the Claimants argue that the language of Article 11(4) is intended to restrain the Respondent from acting inconsistently with its own obligations. According to the Claimants, the Respondent owes obligations under the Devas Agreement, which preclude the Respondent from now terminating its contractual commitments.333
259.
The Claimants maintain that the policy decision resulting in the annulment of the Devas Agreement is affirmed by the Opinion of the ASG as "an act by the governmental authority acting in its sovereign capacity." In view of this statement, the Claimants do not consider it necessary to reach the issue of whether Antrix' actions are attributable to the State in order to conclude that there has been an expropriation by India.334 Yet, the Claimants advance a notion of agency and rely on the "inseparability" of Antrix, DOS and ISRO in practice.335
260.
Secondly, in the Claimants' view, India is also precluded from invoking "essential security" to "excuse situations of its own making" as evidenced by statements of a rule of general international law to that effect in El Paso,336Continental Casualty337 and LG&E.338 In the present case, the Claimants interpret the factual record as showing that "the allocation of the S-band to DOS for 'commercial operations—the scenario that led to Devas signing the Devas Agreement—was the result of conscious and deliberate policy-making on its part.'"339 Having recalled India's assessment of its national priorities from 1999 to 2008340 and its conduct in allowing the Devas Agreement to proceed, the Claimants submit that the Respondent cannot now "claim that it was 'essential' that these commercial uses be terminated" because it "supposedly formed a different assessment of its "national needs at a later time."341

b. The Respondent's Position

261.
The Respondent contends that the Claimants' first argument proceeds on the flawed basis that "the obligations under the Devas Agreement are the obligations of the Government, not Antrix" when the factual record establishes that the Government had no such obligations.342
262.
The Respondent argues that Devas knew that the Government of India was not a party to the Devas Agreement and maintained a distinct personality from Antrix for the purposes of the Devas Agreement.343 As to allegations that Antrix and the Government of India are "inseparable,"344 the very fact that the Claimants identify Antrix as the entity which entered into and annulled the Devas Agreement upon the instructions of several governmental bodies shows that Antrix and the Government of India are not "inseparable," and Antrix did not enter into the Devas Agreement "on behalf of the Government." Rather, the negotiating history of the Devas Agreement shows that Devas wanted ISRO to be its counterparty in the deal, which was not accepted and Antrix ultimately signed the Agreement.345
263.
The Respondent then refers to what it characterizes as a "unanimous line of Indian authority" rejecting conflation of the legal personalities of State-owned companies and the government,346 as well as international authorities following the same trend.347 These authorities suggest that a clear distinction must be drawn between Antrix, a "private company limited by shares" within the meaning of the Indian Companies Act,348 and the Government of India. The Respondent notes the Claimants' failure to bring any Indian authority to support their position.349 Moreover, international authorities such as the ILC Articles lend further support to the Respondent's position that the acts of Antrix are not attributable to the State, save in certain circumstances that are inapplicable in the present case.350
264.
In any case, even if Article 11(4) was applicable (which the Respondent denies), the Respondent argues that the "essential security interests" provision would prevail on its clear and unambiguous terms.351
265.
As to the Claimants' second argument, the Respondent submits that the authorities and principle relied upon, even if accepted as correct, are "totally irrelevant" for two reasons: India had no contractual commitment of any kind to Devas nor did it "contribute" to any "crisis."352

c. The Tribunal's Analysis

266.
In order to invoke Article 11(4), two requirements must be satisfied. First, the obligation mentioned in Article 11(4) has to be one which the Respondent has itself entered into. Second, the Respondent must fail to honour such an obligation.
267.
The task of the Tribunal will therefore be to determine whether the Agreement constitutes such an obligation and whether the annulment of the Agreement constitutes failure of the Respondent to honour the obligation.
268.
The Tribunal notes that, although stating that it is not necessary to decide on the attribution of Antrix's actions to the Respondent in order to conclude that there has been an expropriation, the Claimants nonetheless rely on the "inseparability" of Antrix, DOS and ISRO in practice. This latter claim is made particularly in connection with a breach of the FET standard, the Claimants arguing that the Respondent cannot evade liability for its various bad faith actions by claiming that they were solely attributable to Antrix.
269.
Articles 4, 5 and 8 of the ILC Articles containing the applicable principles of attribution read as follows:

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.

270.
Article 4(2) of the ILC Articles makes clear that the legal personality of a State-owned company is governed by domestic law. The acts of such a company can only be attributed en bloc to the State when it is considered a governmental body under domestic law.
271.
This view was confirmed by the ICJ in the Ahmadou Sadio Diallo case. The Court ruled that:

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

272.
In the present instance, the Respondent has provided clear evidence that Antrix cannot be considered an organ of the State under Indian law. Antrix's constituent documents make clear that it is a "private company limited by shares" within the meaning of the Indian Companies Act.354
273.
Even if the determination of the legal status of a State-owned company is a matter governed by domestic law, the actions of such company may still engage the international responsibility of the State. The acts of the company will have to be examined on a case-by-case basis, in light of ILC Articles 5 and 8, to determine whether they constitute a breach of international law that may be attributed to the State.
274.
The Claimants however hold a different position. They rely on a notion of agency to argue that "in assessing the Respondent's liability, Antrix's various actions. should be directly attributed to India."355 However, most of the authorities relied upon by the Claimants do not support the existence of a notion of agency in international law, such that every act of an agent (including the repeated assurances of Antrix's support for the Devas System, referred to by the Claimants) may be attributed to the State.
275.
Thus, the Claimants rely on the Wintershall arbitration, in which the tribunal decided that the State-owned company at stake operated "as an arm or agent of the Government" but only "as a matter of Qatari law,"356 i.e. agency was found to exist on the basis of domestic law. The ICC case Deutsche Schachtbau v. United Arab Emirates was a purely commercial case that concerned the extension of an arbitration clause from a contract signed by a State entity to the State itself through a multiplicity of contracts.357 Moreover, in the Nykomb ICSID award, the tribunal decided that, in the circumstances of the case, Latvia had to "be considered responsible for (the State's entity) actions under the rules of attribution in international law."358 Finally, in Maffezini v. Spain, the tribunal concluded that, for the exclusive purpose of determining the jurisdiction of ICSID, it is sufficient if the investor is able to make a prima facie case that the relevant company/entity is a State-entity acting on behalf of the Respondent State.359 Attribution matters were actually left to be decided for the merits phase.360
276.
Suffice it to say that ILC Articles 4, 5 and 8 do not provide general rules of attribution meaning that any act can be attributed to the State if the requirement of structure, function or control is met. The scope of these provisions is, rather, limited to conduct which constitutes a violation of international law, and should not be confused with rules on agency as they exist under private law.361
277.
There remains the provision of Article 8 of the ILC Articles concerning the conduct of a person or group of persons directed or controlled by the State. In that circumstance, that conduct "shall be considered as an act of a State under international law if the person or group of persons is in fact acting on the instructions of, under the direction or control of that State in carrying out the conduct."
278.
The Tribunal is of the view that "a person or group of persons" includes any corporation legally created. One may wonder why Article 5 of the ILC Articles refers to "conduct of a person or entity" while Article 8 mentions instead "persons or group of persons" but it is generally recognized in modern legal systems that "person" includes not only a natural person but also a legal person, such as a corporation. Moreover, the Mauritius-India BIT itself defines "investor" as covering both a natural person362 and a legal person.363
279.
The Tribunal notes in this regard that treaties concluded in the area of international investment protection appear generally to include juridical entities, such as corporations, within the definition of a "person." To cite only two conspicuous examples, pursuant to Article 25(2) of the ICSID Convention a "national of another Contracting State" is defined to include "any natural person" and "any juridical person."364 Similarly, Article 13 of the MIGA Convention includes "any natural person" and "any juridical person" within the ambit of "eligible investors."365
280.
Finally, it would make no sense to impose a restrictive interpretation that would allow a State to circumvent the rules of attribution by sending its direction or instruction to a corporate entity rather than a physical person or group of physical persons. Even when addressed to a corporation, the direction or instruction has to be received and acted upon by a person or a group of persons, be they the chairman, the president or the board of directors of that corporation.
281.
In the present case, having regard to the circumstances leading to the Devas Agreement as they emerge from the pleadings of the Parties, the Tribunal concludes that, when entering into the Agreement, Antrix was not acting as an organ of the Respondent, whether under the provisions of Articles 4 and 5 of the ILC Articles. The Agreement itself does not constitute an obligation the Respondent has entered into within the meaning of Article 11(4).
282.
A question arises however as to whether, when Antrix served the Claimants with a notice of force majeure, Antrix was acting "on the instructions of, or under the direction or control" of the Respondent,366 as described in Article 8 of the ILC Articles.
283.
It is important to note that Article 2 of the ILC Articles states that two conditions must be met for the attribution to a State of an internationally wrongful act: (i) the act must be attributable to the State under international law; and (ii) it must constitute a breach of an international obligation of the State. The answer to these questions has nothing to do with the liability of Antrix for breach of its contractual obligations under Indian law, a matter which has been dealt with by the ICC tribunal referred to in the present award.
284.
As stated by James Crawford and Simon Olleson:

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

285.
A similar line of thought was expressed by Michael Feit when he observed:

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

286.
The interpretation of Article 8 of the ILC Articles has been the subject of helpful analysis in the recent award and the decision on annulment relating to the Tulip Real Estate and Development Netherlands B.V. v. Republic of Turkey case.369 In that case, the tribunal, by majority, ruled that "while Emlak (the Turkish joint-venture partner of the claimant) was subject to TOKI's (a State entity) corporate and managerial control, Emlak's conduct with respect to the execution, maintenance and termination of the Contract is not attributable to the State under Article 8 of the ILC Articles due to an absence of proof that the State used its control as a vehicle directed towards achieving a particular result in its sovereign interests."370 The tribunal also concluded that purely contractual claims were not covered by the relevant BIT.371 Moreover, it unanimously decided that the challenged actions, including those of TOKI, the Supreme Audit Board, the Prime Ministry and the police, did not constitute violations of the relevant BIT.372
287.
Quoting the award approvingly, the annulment committee had this to say:

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

288.
The Tribunal endorses the analysis of Article 8 contained in the Tulip case; however, based on the factual situation, the end result is quite different. While in the Tulip case, the tribunal concluded that there was no evidence supporting attribution of Emlak's acts to the State, there can be no doubt that, in the present case, Antrix, in invoking force majeure, was "acting on the instructions of, or under the direction or control of that State in carrying out the conduct," to quote Article 8.
289.
The text of the press release issued by the Government of India on February 17, 2011 confirmed the decision of the CCS to annul the Devas Agreement "forthwith"374 and authorized the DOS to "instruct ANTRIX to annul the ANTRIX-DEVAS contract."375 On February 23, 2011, the Deputy Secretary of DOS advised Antrix that it would be unable to lease any transponders in the S-band and that the Agreement "shall be annulled forthwith."376
290.
Having found that Antrix's notice of annulment is attributable to the Respondent under Article 8 of the ILC Articles, it remains however to be determined whether, in the continuum of activities which led to the annulment of the Devas Agreement, the Respondent breached the provisions of the BIT—a question that the Tribunal will address in Chapters VII, VIII, IX and X of this Award.

4. Does Article 11(3) Prevent Entitlement to Compensation?

a. The Claimants' Position

291.
The Claimants argue that "Article 11(3) merely provides that certain sovereign powers are unimpaired; it does not purport to suspend compliance with co-existent obligation of international law (including as stated in Articles 4, 6 and 7) regarding the treatment of investors nor does it override other obligations of international law. Accordingly, even if the annulment of the contract was authorized by Article 11(3)," the Claimants submit that their right of—and India's corresponding obligation to provide—compensation as a result of measures supposedly authorized by Article 11(3) "remains fully operative."377

b. The Respondent's Position

292.
The Respondent, however, argues that there could be no basis for compensation if the "essential security interests" provision of Article 11(3) is found to apply in this case. To support its argument, the Respondent refers to the Continental Casualty case378 and the CMS annulment committee decision,379 which in effect conclude that there is no possibility of compensation when the "essential security interests" provisions are invoked.380

c. The Tribunal's Analysis

B. APPLICATION OF THE LAW TO THE FACTS

296.
The Parties fundamentally disagree as to whether there was a real need on the part of the military and security agencies of India to reserve S-band capacity, such that the intended uses could not be reconciled with the terms of the Devas Agreement.

1. The Parties' Arguments

a. Historical Analysis of Demands for S-band Spectrum in India

i. The Claimants' Position

297.
The Claimants first note that at all times prior to Dr. Radhakrishnan's announcement of the annulment of the Devas Agreement on February 8, 2011 they remained unaware of any claim that any governmental user had a need for the S-band spectrum that had been allotted to Devas.384
298.
According to the Claimants, it was partly because DOS/ISRO was not making effective use of the allocated S-band spectrum that India caused DOS to give back 40 MHz of S-MSS spectrum to DOT.385 The Claimants contend that in 2003, when Mr. Viswanathan first met Dr. Kasturirangan, the then Chairman of the Space Commission, Secretary of DOS and Chairman of ISRO and Antrix, Dr. Kasturirangan, indicated that DOS/ISRO was looking to explore ways of making commercial use of its allocated S-band spectrum in order to ensure that it retained that spectrum.386
299.
In the Claimants' view, India conveniently ignores that by 2008 terrestrial cellular operators had their eyes firmly fixed on the S-band, and were seeking to have DOS vacate the S-band spectrum that had been allocated to it for space services.387 These claims were reviewed by the TRAI, which recommended that "DOT/WPC should coordinate with [DOS] and ascertain the feasibility of vacation of additional spectrum" in the S-band.388 Nonetheless, India's policy in this regard remained unchanged, and there was no suggestion that the performance of the Devas Agreement might be interrupted because of alleged competing demands for S-band capacity.389
300.
Notwithstanding the fact that Devas was never informed of competing demands from the Ministry of Defence, the Claimants reject the Respondent's claims that India's military needs for all available S-band capacity started to emerge in 2003390 and had crystallized by December 2009. According to the Claimants, the only evidence of early "competing demands" is that DOS/ISRO/Antrix willingly pursued an agreement with Devas with full knowledge of these competing "demands", and that Antrix represented to Devas that it could provide 70 MHz of S-band through the satellites on a "Non-Preemptible" basis.391
301.
According to the Claimants, if the military had genuine demands for the S-band allocated to Devas under the Devas Agreement, then this fact would prominently feature in key documents produced during the review of the Devas Agreement by several Indian governmental agencies and officials.392 Instead, Dr. Radhakrishnan's Note for the CCS does not mention any "crystallized" military needs,393 and the policy decision of the CCS merely notes that Antrix was not going to use an orbital slot for commercial purposes. Moreover, it makes no decision regarding spectrum.394 In any event, the Claimants contend that the CCS did not have the power to reserve S-band spectrum for the "crystallized needs" of the military, which would have had to be taken up at the ICC.395
302.
In the Claimants' view, the formulations used in these documents to refer to these "national needs" are intentionally non-exhaustive and indeterminate, and are drafted in order for the Government of India to "back and fill" whatever post-hoc justification might suit its convenience in subsequent litigation that surely would follow.396
303.
The true motivation behind the cancelation of the Devas Agreement, in the Claimants' view, was the prospect of a government scandal, which could end up lying at the feet of the Prime Minister (and Minister of Space) himself, and not any "crystallized needs" of the military.397

ii. The Respondent's Position

304.
The Respondent contends that, even prior to the conclusion of the Devas Agreement, the need for S-band had already been the subject of discussion within the agencies charged with national security and defence.398 The Respondent recounts a lengthy record of facts to support this contention,399 spanning from 2003 to 2011. What emerges from this record, the Respondent submits, is that the needs and demands arising from military and defence purposes were consistently emphasized by statements of the India Air Force,400 senior military officers,401 the Ministry of Defence,402 and warranted the creation of expert committees of military leaders,403 and a taskforce at the ISRO404 to address these issues.
305.
The Respondent avers that, as a consequence of a detailed review of capacity requirements for strategic purposes, it became clear that the national security requirements far exceeded India's S-band capacity, assuming that the orbital slot and frequency allocations necessary for the Devas Agreement were to be granted to Devas.405 It was this fact that motivated the policy decision to reserve the S-band for strategic use, and not a bad faith conspiracy, as argued by the Claimants.406 In any event, the Respondent notes, referring to a meeting that took place in 2014, that "the reservation of S-band capacity for strategic purposes was made in 2011 and continues in effect today, with the satellites being configured for strategic use and the defence agencies picking up the tab."407

b. MSS Demands Versus BSS Demands

i. The Claimants' Position

306.
The Claimants assert that India's defence suffers a fatal lacuna: the military's stated desires all involved MSS frequency, whereas the Devas Agreement pertained to the use of the BSS spectrum.408 In the Claimants' view, this fact disproves the Respondent's contention that there were genuine military or strategic needs for the portion of the S-band spectrum that had been allocated to Devas.
307.
To support this contention, the Claimants rely on a "Note for the Empowered Group of Ministers ("EGoM")409 on Vacation of Spectrum," authored by DOT and dated March 1, 2012 (the "Note for the EGoM").410 This note and its annexures were all issued more than a year after the Devas Agreement was annulled.
308.
First, the Note for the EGoM clarifies that the "strategic and government" need of S-band spectrum is for MSS, and that DOS was seeking to convert the existing BSS spectrum (including the 60 MHz of BSS spectrum allocated to Devas) to MSS.411 In the Claimants' view, this demonstrates that there was no existing military need for BSS spectrum.412 The Claimants also note that the EGoM and DOT were aware that this conversion would contravene the ITU's regulations.413

ii. The Respondent's Position

311.
The Respondent emphasizes the intensifying discussions within the Government of India over the use of the S-band as the military learned of the limitations of MSS frequency for their data communication.417 These limitations arose from the fact that two-way communications such as MSS cannot support sending large amounts of data to multiple users simultaneously, as opposed to satellite broadcasting, which is the case of BSS.418
312.
The Respondent characterizes the Claimants' argument that the Note for the EGoM disproves the existence of genuine military needs for the S-band419 as a "quantum leap" that suffers a twofold deficiency:
313.
First, it is undisputed that the CCS reserved the S-band for non-commercial, strategic use, and such reservation remains in effect.420 This is true notwithstanding any debates taking place before, during or after the policy decision of the CCS, which are legitimate and inherent to the democratic spirit of India.421 The Note for the EGoM proves nothing as to the continued effectiveness of the policy decision of the CCS.422
314.
Secondly, the Claimants overlook a number of documents produced to them together with the Note for the EGoM, including:

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

2. The Tribunal's Analysis

315.
The Tribunal will first consider whether there was a genuine need on the part of the military and security agencies of India to reserve S-band capacity. The Respondent contends that that is the case. The Claimants, on the other hand, question that the S-band demands expressed by the Indian military between 2003 and 2009 were genuine. They insist that all the references to "national needs" featuring in the documents produced during the review of the Devas Agreement are intentionally non-exhaustive and indeterminate, and were merely used as a pretext by India to concoct a force majeure event that would enable Antrix to terminate said Agreement on advantageous terms.
316.
The Tribunal did not have the benefit of testimonies from senior officials who were directly involved in the process leading to the CCS decision of February 17, 2011, such as Dr. K. Radhakrishnan who, since late 2009, was Chairman of the Space Commission, Chairman of ISRO, Secretary of DOS and, until July 2011, Chairman of Antrix, or Mr. G. Balachandran, Additional Secretary of DOS from April 1, 2009 to January 11, 2011, or Mrs. Geeta Varadhan, Director of Special Projects at DOS, who appears to have had long exposure to the needs of the military concerning the S-band and who, according to Mr. Anand, was the person who, at a meeting of senior officials of DOS in June 2010, raised the issue of the needs of the military over the S-band.428 Nor was the Tribunal provided with any testimony from any member of the Department of Defence.
317.
Messrs. Sethuraman and Anand were cooperative and helpful witnesses but a large part of their testimony consisted in presenting their interpretation of many documents in the preparation of which they had no participation whatsoever.
318.
As far as the Claimants are concerned, they produced a number of witnesses and experts who provided considerable information concerning the negotiation and the implementation of the Agreement as well as expertise on the allocation and management of spectrum. However, in spite of over a dozen meetings with government officials between June 2010 and the end of January 2011, none of the Claimants was informed of the internal government process which led to the CCS decision of February 17, 2011, until Dr. Radhakdrishnan's press conference of February 8, 2011 at which he announced for the first time the Space Commission's decision of 2 July 2010 to annul the Agreement. They therefore were in no position to shed light on the deliberations of governmental authorities during the most relevant period.
319.
The Tribunal finds itself having to rely very much on the documents submitted by the Parties in reaching its own conclusion as to the Respondent's decision to annul the Agreement and reserve the GSAT-6 and 6A satellites "having regard to the needs of [India's] strategic requirements."429
320.
The Tribunal has summarized above the events surrounding the decision to annul the Agreement. The Tribunal is faced with the difficult task of assessing whether that decision was based on genuine security needs of the State or whether these alleged needs were a mere pretext to annul a contract which was becoming a political embarrassment and to meet the wishes expressed by other groups in the communications industry providing terrestrial services.
321.
The Tribunal is left with no doubt that, inside the Indian administration, during the discussions leading to the request to the CCS for the annulment of the Devas Agreement, a mix of factors was at play.
322.
First and foremost, the fear of a political scandal similar to the previous one relating to the attribution of G2 licenses and arising out of the publication of some articles on the subject in Indian media is a likely explanation of the sudden frenzy in June 2010 of the DOS, and of Dr. Radhakrishnan in particular, in agitating for and obtaining from the Space Commission in less than a month the decision to annul the Devas Agreement.
323.
All this occurred in a context where at no time between the signing of the Agreement in 2006 and the decision to annul it in 2011, and in spite of alleged repeated requests since 2006 by the military for the allocation to it of at least part of the S-band, did the Respondent give any indication to the Claimants that the Agreement might be in jeopardy because of such needs.
324.
After the publication of press articles on May 31 and June 1, 2010430 suggesting that there might have been some inappropriate dealings in connection with the Agreement, DOT, by letter of June 4, 2010431 requested the Additional Secretary of ISRO "to provide your comments [...] immediately;" this was followed by another letter of June 14, 2010432 to the same effect addressed to Dr. Rhadakrishnan. These letters initiated a flurry of actions by ISRO aimed at annulling the Agreement.
325.
On the same date, Dr. Rhadakrishnan requested from Antrix six copies of the Agreement which were immediately provided.433 On June 16, 2010 in a letter to DOT, after pointing out that two issues were confronting the Respondent, he sought DOT's "opinion on whether ANTRIX-Devas contract need be annulled invoking any of the provisions of the contract in order (i) to preserve the precious S band for the strategic requirements of the nation and (ii) to ensure a level playing field for the other service providers using terrestrial spectrum."434 On the same date, Dr. Rhadakhrisnan wrote to the Advisor to the Law Minister, raising the same two issues and seeking a legal opinion "on whether ANTRIX-Devas contract need be annulled invoking any of the provisions of the contract […]."435 He also flew from Bangalore to New Delhi to discuss the matter with the Advisor. Two days later, on June 18, 2010 the Advisor produced a note436 stating that "the Central Government (Department of Space), in exercise of its sovereign power and function, if so desire and feel appropriate, may take a policy decision to the effect that due to the needs of strategic requirements, the Central Govt/ISRO would not be able to provide orbit slot in S-band for operating PS1 to the ANTRIX for commercial activities. In that event, ANTRIX in terms of Article 7(c) read with Article 11, of the agreement may terminate the agreement and inform M/s Devas accordingly."437 He added: "As far as the second issue relating to terrestrial supplementation and level playing field since the Department of Telecom is administratively concerned that Department may also be consulted."438
326.
Following the submission of an extensive note by DOS to the Space Commission, that Commission decided, among other things, at its meeting of 2 July 2010, that the Department of Space "in view of priority to be given to nation's strategic requirements including societal ones may take the actions necessary and instruct Antrix to annul the ANTRIX-Devas contract" and "may evolve a revised utilization plan for GSAT-6 and GSAT-6A satellites, taking into account the strategic and societal imperatives of the country."439
327.
Subsequent to that decision and following a request from DOS, the Additional Solicitor General stated in a letter of 12 July 2010 that his opinion had been sought as to whether the Agreement "can be annulled by invoking any provisions of the contract in order to (i) preserve precious S band spectrum for strategic requirements of the nation and (ii) to ensure a level playing field for other service providers using terrestrial spectrum."440 He advised that, instead of a mere decision by the Department of Space, "it would be more prudent that a decision is taken by the Government of India, as a matter of policy, in exercise of its executive power or in other words, a policy decision having the seal and approval of the Cabinet and duly gazetted as per the Business Rules of the Government of India."441
328.
Finally, in its Note for the Cabinet Committee on Security of February 16, 2011, DOS, after describing the need of "S-band spectrum for vital and societal applications,"442 again refers to its concerns about ensuring "a level-playing field for the other service providers using terrestrial spectrum."443
329.
This, by itself, however cannot be a basis for the Tribunal to conclude that the decision of the Respondent to annul the Agreement was invalid.
330.
First, it is a regular phenomenon in public administration that decisions are influenced by a number of factors including, sometimes, purely political ones.
331.
Second, and more important, while records of deliberations at senior levels of the Respondent's public administration might be helpful to understand the context in which a particular decision was reached, what should guide the Tribunal is the actual decision taken by the highest authority of the Government, i.e. its Cabinet, which had delegated to the Cabinet Committee on Security decisions concerning that subject, a Committee which was presided by the Prime Minister himself, who was also the Minister responsible for the DOS.
332.
The decision of the CCS concerning the Devas Agreement was communicated in the form of a press release of February 17, 2011 which reads:

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

333.
In fact, the decision of the CCS as reported in the statement of the Law Minister replicates word for word the approval sought by the DOS in its Note to the CCS of February 16, 2011.445
334.
Nothing in that decision implies that it was reached in whole or in part to accommodate the concerns expressed by other service providers using terrestrial spectrum or to deal with the risk of a political scandal in connection with the Antrix-Devas Agreement.446
335.
Moreover, the fact that the CCS did not make a specific allocation of the spectrum cannot be considered as a deciding element in considering whether the CCS decision was taken for the protection of the Respondent's essential security interests. As the Claimants themselves have argued, such function came under the authority of the ICC. This fact does not restrict the power of the CCS to decide that any particular activity be "directed to the protection of (the) essential security interests" of the State. In the present case, if such a decision was taken, there was nothing inappropriate in leaving it to the proper administrative authorities to decide how the spectrum would be allocated between the various interested parties.
336.
The Tribunal has received uncontroverted evidence that, starting as early as 2004, officials in the Ministry of Defence were concerned about the needs of the Indian military for S-band capacity.
337.
On April 5, 2004, the Naval Headquarters wrote to ISRO regarding the requirement of the Navy for a dedicated satellite. In this communication it was stated as follows:

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

338.
The importance of space capabilities for the Defence forces was brought out in a note of the Vice Admiral, Headquarters Integrated Defence Staff dated October 14, 2005. The relevant extract of the note reads:

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.

3. [...].

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

339.
Para. 2 of the aforementioned note talks about planning strategy for space. Para. 4 refers to the Defence Space Vision, 2020, intended for formulating the space strategy. An appendix to the document, inter-alia, reflects the requirement of S-band for strategic use:

2010 86 MWZ
2015 151 MWZ
2020 208 MWZ

340.
The minutes of the third task force meeting between various representatives of the Army, Air Force, Navy and Department of Space held on February 21, 2006 recorded a concern about the rapid build-up of the Chinese Space Programme and need to take cognisance of this aspect and develop a space programme to effectively combat the proliferation. The minutes also point out the inescapable necessity of S-band for the armed forces for interference free communications. The required projection of S-band required for armed forces was mentioned as under:

86MHZ-151 MHZ-208 MHZ for short, medium and long term respectively.449

341.
HQ Integrated Defence Staff in its note of August 9, 2006, sent to Ms. Geeta Vardan PD(SP) ISRO HQ and three officers of the Defence establishment, referred to the Bandwidth Projections of Service HQs for Satellite communications mentioned in Defence State Vision 2020 (DSV) dated October 14, 2005 and requested that the matter be taken up with the DOT for blocking the bandwidth in the S-band and in some other bands specified therein for satellite communications of the three services as per requirements envisaged in DSV 220 .450
342.
The minutes of the integrated space cell meeting held on February 19, 2007 projected the requirement of S-band based on the number of satellite projects already operational and planned in the future. From the bandwidth projections worked out, it was expressed that the present series "INSAT" and "GSAT" cannot meet the army's futuristic requirement of bandwidth and it was proposed to have a Dedicated Army Communication Satellite.451
343.
On August 30, 2007, the Chiefs of Staff Committee directed that an Expert Committee be formed by HQ Integrated Defence Staff, which was to be guided by the following terms of reference:

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

344.
While directing that the Expert Committee be formed, it was recorded that the Defence Services had present and future applications in the band from 2.5 GHz to 2.69 GHz on various satellites launched by the DOS and representatives of the DOS were actively involved in the protection of said bands at various national and international forums.
345.
Pursuant to the direction of the Chiefs of Staff Committee, the Expert Committee on Spectrum and Satellite Uses of Frequency Band 2.5 to 2.69 GHz (S-band) was constituted. The following observations of the Expert Committee dated September 7, 2007 need to be noticed:

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