The Devas Shareholders are three Mauritius-based companies that own shares in Devas.² (Cmplt. (Devas Dkt. No. 1) ¶¶ 11-13) Under a bilateral investment treaty – the Agreement Between the Republic of India and the Republic of Mauritius for the Promotion and Reciprocal Protection of Investments (the "India-Mauritius Treaty") – investors based in India and Mauritius are permitted to initiate arbitration proceedings against either India or Mauritius based on alleged expropriations of investments in either of those countries. (Id., Ex. 2 (India-Mauritius Treaty) at 7-8) On July 3, 2012, the Devas Shareholders initiated such an arbitration against the Republic of India based on India's annulment of the Devas-Antrix Agreement. (Id. ¶ 25) Pursuant to the India-Mauritius Treaty, a tribunal was convened in The Hague, Netherlands, to conduct the arbitration ("The Hague Tribunal"). (Id. ¶ 5)

On July 25, 2016, The Hague Tribunal issued a merits award against the Republic of India and in favor of the Devas Shareholders. The Tribunal found the Republic of India liable under the India-Mauritius Treaty based on its annulment of the Devas-Antrix Agreement. (Id. ¶ 25; id., Ex. 1 (The Hague Merits Award) ¶ 501) On October 13, 2020, The Hague Tribunal issued its final award, ordering the Republic of India to pay the Devas Shareholders damages of $111,296,000 plus interest, and $10 million in costs and legal fees plus interest. (Id. ¶ 25; id., Ex. 3 (The Hague Final Award) ¶ 663(c)-(g))

After the foreign arbitration tribunals issued their final awards against the Republic of India, the Devas Shareholders and Deutsche Telekom initiated separate proceedings in the United States to recognize and enforce those arbitration awards under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38 – commonly referred to as the "New York Convention." (Cmplt. (Devas Dkt. No. 1) ¶ 39; Pet. (Deutsche Telekom Dkt. No. 1) ¶ 39) Pursuant to the New York Convention – which is implemented in Chapter 2 of the Federal Arbitration Act (the "FAA"), 9 U.S.C. § 201 et seq. – parties to a foreign arbitration may petition U.S. courts to enforce an award issued by a foreign arbitral tribunal. See CBF Indústria de Gusa S/A v. AMCI Holdings, Inc., 850 F.3d 58, 72 (2d Cir. 2017) ("[B]oth the New York Convention and its implementing legislation in Chapter 2 of the FAA 'envision a single-step process for reducing a foreign arbitral award to a domestic judgment.'"); 9 U.S.C. § 207 (providing that "[w]ithin three years after an arbitral award" covered by the New York Convention is made, "any party to the arbitration may apply ... for an order confirming the award as against any other party to the arbitration").

(1) the private interests of the plaintiffs in proceeding expeditiously with the civil litigation as balanced against the prejudice to the plaintiffs if delayed; (2) the private interests of and burden on the defendants; (3) the interests of the courts; (4) the interests of persons not parties to the civil litigation; and (5) the public interest.

Id.; see, e.g., UnitedHealthcare Ins. Co. v. Regeneron Pharmaceuticals, Inc., 21 CV 6245 (VB), 2021 WL 6137097 at *2 (S.D.N.Y. Dec. 29, 2021); Van Elzen v. Global Strategy Grp., LLC, 20-CV-3541 (JPO), 2021 WL 185328, at *2 (S.D.N.Y. Jan. 19, 2021); Laser Spa of Rochester, LLC v. Erie Ins. Co., Case No. 20-cv-6308-FPG, 2020 WL 5898640, at *1 (W.D.N.Y. Oct. 5, 2020); Gonzalez de Fuente v. Preferred Home Care of N.Y. LLC, 18-cv-06749 (AMD) (PK), 2020 WL 738150, at *2 (E.D.N.Y. Feb. 13, 2020).

Indeed, in order to circumvent the protections provided by the FSIA, Plaintiffs rely on the Republic of India's conduct to establish exceptions to sovereign immunity under the FSIA – the very same issue pending in the D.C. district court actions. (See Cmplt. (Devas Dkt. No. 1) ¶ 16 (alleging that Air India is "not entitled to immunity in an action to enforce an arbitration agreement because India has waived that immunity by agreeing to the [New York Convention]"); id. (alleging that Air India "is not immune under § 1605(a)(6) [of the FSIA] from an action to enforce an arbitral award governed by the New York Convention" – that is, the award by The Hague Tribunal against the Republic of India); Pet. (Deutsche Telekom Dkt. No. 1) ¶ 18 (alleging that "Air India is not immune because its alter ego, India, is a party to the New York Convention"); id. (alleging that Air India is not immune under § 1605(a)(6) of the FSIA because the action is one to enforce the Geneva Tribunal arbitration award against the Republic of India)) Accordingly, the D.C. district court actions will address the same underlying subject matter jurisdiction issue that Air India intends to raise in a motion to dismiss here: whether the Republic of India is immune from suit under the FSIA.⁷

Plaintiffs further suggest that CBF Indústria de Gusa S/A v. AMCI Holdings, Inc., 850 F.3d 58 (2d Cir. 2017), supports their argument that multiple and duplicative enforcement proceedings should proceed simultaneously. (See Devas Shareholders Opp. Br. (Devas Dkt. No. 35) at 9-10; Pet. Opp. Br. (Deutsche Telekom Dkt. No 28) at 16-17) In CBF, the district court had dismissed an action to "enforce" a foreign arbitration award under the New York Convention on the grounds that the plaintiffs "were required to confirm the award prior to seeking enforcement of that award." CBF, 850 F.3d at 68. The Second Circuit reversed, holding that "the New York Convention and its implementing legislation in Chapter 2 of the FAA envision a single-step process for reducing a foreign arbitral award to a domestic judgment." Id. at 72 (quotation marks and citation omitted).

* * *

Dated: New York, New York February 4, 2022

SO ORDERED.