a. Skadden, Arps, Slate, Meagher & Flom (UK) LLP of 40 Bank Street, London E14 5DS, United Kingdom (UK);
b. Skadden, Arps, Slate, Meagher & Flom LLP of Four Times Square, New York, NY 10036, United States of America (USA);
c. Amarchand & Mangaldas & Suresh A. Shroff & Co of 216 Okhla Industrial Estate Phase III, New Delhi 110 020, India;2 and
d. Senior Advocates in India Messrs Harish Salve and Ciccu Mukhopadhaya.
"Article 20. Arbitration
a. In the event of there being any dispute or difference between the Parties hereto as to any clause or provision of this Agreement or as to the interpretation thereof or as to any account or valuation or as to the rights, liabilities, acts, omissions of any Party hereto arising under or by virtue of these presents or otherwise in any way relating to this Agreement such dispute or difference shall be referred to the senior management of both Parties to resolve within three (3) weeks failing which it will be referred to an Arbital [sic] Tribunal comprising of three arbitrators, one to be appointed by each party (i.e. DEVAS and ANTRIX) and the arbitrators so appointed will appoint the third arbitrator.
b. The seat of Arbitration shall be at NEW DELHI in India.
c. The Arbitration proceedings shall be held in accordance with the rules and procedures of the ICC (International Chamber of Commerce) or UNCITRAL.
d. The Arbitration Tribunal shall reach and render a decision or award in writing (concurred in by a majority of the members of the Arbital [sic] Tribunal with respect to the appropriate award to be rendered or remedy to be granted pursuant to the dispute, (including the amount that any indemnifying Party is required to pay to the indemnified Party in respect of a claim filed by the indemnified Party).
e. To the extent practicable all decisions of the board of Arbitration shall be rendered no more than 30 (thirty) days following commencement of proceedings with respect thereto. The Arbital [sic] Tribunal shall realize its decision on award into writing and cause the same to be delivered to the Parties.
f. Any decision or award made by the board of Arbitration shall be final, binding and conclusive on the Parties and entitled to be enforced to the fullest extent permitted by Laws and entered in any court of competent jurisdiction.
g. Each Party to any Arbitration shall bear its own costs or expenses in relation thereto, including but not limited to such Party's attorneys' fees, if any, and the expenses and fees of the member of the Arbital [sic] Tribunal appointed by such party, provided, however, that the expenses and fees of the third member of the Arbital [sic] Tribunal and any other expenses of the Arbital [sic] Tribunal not capable of being attributed to any one member shall be borne in equal parts by the Parties."
"a direction upon Devas to nominate its Arbitrator in accordance with the Agreement dated 28th January, 2005, and the UNCITRAL Rules, to adjudicate the disputes, which had arisen between the parties and to constitute the Arbitral Tribunal and to proceed with the Arbitration".21
"I note that counsel from three firms are representing the Claimant, including Ciccu Mukhopadhaya of Amarchand & Mangaldas & Suresh A. Shroff & Co. I wish to point out, although I believe it is unnecessary to do so under the IBA Guidelines on Conflict of Interest in International Arbitration nor the ICC Rules of Arbitration, that Mrs Pallavi S Shroff of that firm is a member of the Board of Directors of the Singapore International Arbitration Centre (SIAC) of which I Chair. Members of the Board of Directors are not renumerated and SIAC is a not-for-profit company limited by guarantee. Mrs Shroff does not appear to be involved in this arbitration."
"[t]he IBA Rules on the Taking of Evidence in International Arbitration (2010) ("IBA Rules") shall serve as a guide in the determination of evidentiary issues."
a. Pleadings / submissions
i. Devas’ Statement of Claim dated 20 February 2012 (Statement of Claim)
ii. Antrix’s Statement of Defence dated 15 November 2013 (Statement of Defence)
iii. Devas’ Reply dated 24 March 2014 (Reply)
iv. Antrix’s Rejoinder dated 1 August 2014 (Rejoinder)
v Devas’ Skeleton Argument dated 1 December 2014 (Devas’ Skeleton) vi. Antrix’s Skeleton Argument dated 1 December 2014 (Antrix’s Skeleton)
b. Witness statements - Devas
i. Statement of Gary Parsons dated 18 February 2012 (Parsons 1)
ii. Statement of Arun Gupta dated 19 February 2012 (Gupta 1)
iii. Statement of Lawrence T. Babbio Jr dated 19 February 2012 (Babbio 1)
iv. Statement of Dr Rajendra Singh dated 19 February 2012 (Singh 1)
v. Statement of Ramachandran Viswanathan dated 20 February 2012 (Viswanathan 1)
vi. Reply Statement of D. Venugopal dated 15 March 2014 (Venugopal)
vii. Reply statement of M. G. Chandrasekhar dated 15 March 2014 (Chandrasekhar)
viii. Reply statement of Dr Kim Larsen dated 19 March 2014 (Larsen)
ix. Reply statement of Gary Parsons dated 21 March 2014 (Parsons 2)
x. Reply statement of Lawrence T. Babbio Jr dated 23 March 2014 (Babbio 2)
xi. Reply statement of Ramachandran Viswanathan dated 24 March 2014 (Viswanathan 2)
xii. Reply statement of Rajendra Singh dated 24 March 2014 (Singh 2)
xiii. Reply statement of Arun Gupta dated 24 March 2014 (Gupta 2)
c. Witness statements - Antrix
i. Statement of Vijay Anand dated 15 November 2013 (Anand)
ii. Statement of K. Sethuraman dated 15 November 2013 (Sethuraman 1)
iii. Statement of Dr V. S. Hegde dated 30 July 2014 (Hegde)
iv. Supplemental statement of K. Sethuraman dated 31 July 2014 (Sethuraman 2)
d. Expert reports - Devas
i. Report of John Lewis dated 17 February 2012 (Lewis 1)
ii. Report of Brent Kaczmarek dated 20 February 2012 (Kaczmarek 1)
iii. Reply report of John Lewis dated 14 March 2014 (Lewis 2)
iv. Reply report of Brent Kaczmarek dated 24 March 2014 (Kaczmarek 2)
v. Report by Brent Kaczmarek on the areas of disagreement with Vladimir Brailovsky and Daniel Flores dated 30 September 2014 (Kazcmarek3)
vi. Supplemental report of Brent Kaczmarek dated 17 October 2014 (Kazcmarek 4)
e. Expert reports - Antrix
i. Report of Vladimir Brailovsky & Daniel Flores dated 15 November 2013 (Brailovsky/Flores 1)
ii. Second report of Vladimir Brailovsky & Daniel Fiores dated 1 August 2014 (Brailovsky/Flores 2)
iii. Report by Vladimir Brailovsky and Daniel Flores on the areas of disagreement with Mr Kaczmarek dated 30 September 2014 (Brailovsky/Flores3)
iv. Supplemental Report by Vladimir Brailovsky and Daniel Flores dated 11 December 2014 (Brailovsky/Flores 4)
i. An agreed "dramatis personae"
ii. An agreed list of abbreviations
iii. Separate chronologies of relevant events
iv. A transcript of the hearing in another arbitration concerning the Devas Agreement, CC/Devas (Mauritius) Ltd et al v Republic of India, PCA No. 2013-09. The parties agreed that this transcript, which records testimony of a number of Devas’ and Antrix’s witnesses, would be admitted as evidence in this arbitration.
a. Devas’ post-hearing memorial dated 17 February 2015 (Devas’ PHM)
b. Antrix’s post-hearing memorial dated 17 February 2015 (Antrix’s PHM)
c. Devas’ post-hearing reply memorial dated 23 March 2015 (Devas’ PHRM)
d. Antrix’s post-hearing reply memorial dated 23 March 2015 (Antrix’s PHRM)
e. Devas’ submission on costs dated 10 April 2015
f. Antrix’s submission on costs dated 10 April 2015
a. on 9 August 2012, until 31 January 2013;
b. on 10 January 2013, until 30 April 2013;
c. on 11 April 2013, until 31 July 2013;
d. on 11 July 2013, until 31 October 2013;
e. on 10 October 2013, until 31 October 2014;
f. on 16 October 2014, until 31 March 2015;
g. on 12 June 2015, until 30 June 2015; and
h. on 11 June 2015, until 30 September 2015.
a. the Department of Telecommunications (DOT), which is responsible for the provision of telecommunication services;
b. the Wireless Planning and Coordination wing (WPC) of the DOT, which is responsible for (inter alia) issuing radio licenses and allocating and monitoring radio frequency spectrum;23
c. the DOS, which is responsible for space policy development and implementation of the Indian space programme. The DOS sits directly under the Prime Minister’s office and its Secretary reports directly to the Prime Minister. Antrix is described in the Devas Agreement as "a marketing arm" of the DOS;24
d. ISRO, which is responsible for developing space technology and its applications. ISRO sits under the DOS. Its primary responsibility is to build, launch, operate and lease satellites for national uses, including telecommunications, for both the public and private sectors. Antrix is described in the Devas Agreement as the "entity through which ISRO engages in commercial activities";25
e. the Space Commission, which includes the Minister of State, the National Security Advisor, the Cabinet Secretary, the Principal Secretary to the Prime Minister and the Secretary for GOI Economic Affairs in the Ministry of Finance, as well as senior directors of ISRO centres, with its secretary being the Additional Secretary DOS.26 The scope of the Space Commission’s responsibilities was not entirely clear from the evidence, but it appears to report directly to the Prime Minister27 and, as discussed below, it was involved in key decisions in relation to this arbitration, including the decision to annul (terminate) the Devas Agreement; and
f. the CCS, which is the ultimate authority within India on matters of internal and external security and defence.28 It is comprised of the Prime Minister, the Minister of Defence, the Minister of Home Affairs, the Minister of External Affairs and the Minister of Finance. The functions of the CCS include dealing with, inter alia, defence related issues, issues relating to law and order and internal security, policy matters concerning foreign affairs that have internal or external security implications (including cases relating to agreements with other countries on security related issues) and economic and political issues impinging on national security.29
"ISRO initiated serious discussions in early 2003 for introduction of Satellite-based Digital Multimedia in the country, especially taking note of the fact that the allocation of the S-Band spectrum for ISRO/DOS... would expire by September 2010 unless [DOS/ISRO] place[d] S-Band Satellites in the orbit and demonstrate that necessary advance actions to build the Satellites have been taken".49
a. a "near-term objective" of Forge Advisors "supporting Antrix by undertaking a series of discrete tactical projects in the area of sales, marketing, business development, and other related arenas"; and
b. a "long-term objective" of building "a strategic partnership that leverages Antrix's satellite & space capabilities to enable new social & commercial applications".50
a. Antrix was required to build, launch and operate a primary satellite system (PSÍ)58 and, at the option of Devas, a secondary satellite system (PS2),59 and to lease transponder capacity in the S-band on those satellites to Devas;60
b. the leased capacity was for 12 years.61 At the time the agreement was executed, it provided that it would be "put up for renewal... for another twelve (12) years... at Lease Fees to be mutually agreed upon".62 The parties later agreed to a variation which required the fees under any renewed lease to be "reasonable";63
c. the leased capacity was "Non-Preemptible", meaning that it could not be utilised or repurposed for use by another party during the life of the satellite unless Devas was in default of its obligations or payments;64
d. PS1 was to be fully operational and ready within 36 months65 of the payment of the first instalment of the UCRF.66 It was to be launched into the 83°E orbital slot,67 and delivery was deemed to have taken place once in-orbit testing was completed by Antrix and accepted (in writing) by Devas;68 and
e. Antrix was responsible for obtaining "all necessary Governmental and Regulatory Approvals relating to orbital slot and frequency clearances, and funding for the satellite to facilitate DEVAS services".69 Antrix was also required "through ISRO/DOS" to obtain "clearances from National and international agencies (WPC, ITU, etc.) for use of the orbital slot and frequency resources" necessary to provide the leased capacity.70
"[t]o cater for requirements up to 2012 - 120 Carriers, 17.5 MHz. Out of which 50 Carriers are being used by the Armed Forces, (ii) Additional in 12th Plan - 40 MHz. (iii) Additional in 13th Plan - 50 MHz".125
a. the Devas Agreement was only executed after "technical feasibility, financial and market aspects, time schedule, risk mitigation" and "pricing" had been scrutinised by a "High Power Committee" comprised of specialist "ISRO Centres and also Additional Secretary and Joint Secretary of DOS";
b. Antrix entered into the agreement "in close coordination & participation of SCPO, ISRO HQ and other concerned agencies";
c. Antrix followed "guidelines for leasing the transponder services to private service providers as per the Satcom policy";
d. "[t]here is absolutely no doubt on the technical soundness of the digital multimedia services as proposed in this hybrid satellite and terrestrial system";
e. "[o]nly 10% of the capacity is available for use by ISRO" which would "bring in limitations on spectrum availability for essential strategic and social sectors applications in future"; and
f. "[t]he utilization of the S-band frequency spectrum allotted for satellite bases 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-GA by a competent technical team on high priority. The strategic and other essential needs of the country should also be considered".130
"[i]t is time the Government realised that a transparent mechanism is needed to supervise the sale of scarce assets... There is a simple principle in economics: if it is scarce, charge for it. And if there is one thing that is scarce today in relation to the demand for it, it is spectrum. But the cruel will say that it is perhaps too much to expect space scientists at the Indian Space Research Organisation (ISRO) to be aware of this sine qua non of economics and commerce. That is probably why that organisation has, in a rather mysterious way, allocated spectrum for an undisclosed sum to Devas Multimedia Private Limited, a company formed by some ex-ISRO employees."
"we seek your legal opinion on whether ANTRIX-Devas contract need be annulled invoking any of the provisions of the contract in order to (i) to preserve the precious S band spectrum for the strategic requirements of the nation and, (ii) to ensure a level playing field for the other service providers using terrestrial spectrum".138
a. as Devas submits, a note that was later provided to the Space Commission (see  below) states that the DOS had, prior to seeking advice from the Ministry of Law and Justice, "decided to request Ministry of Law and justice to give its opinion as to how to annul the contract";142
b. it is inherently implausible that Dr Radhakrishnan wanted advice about whether Antrix "needed" to annul the agreement. There is nothing in the agreement to suggest that its termination might ever be required; the Devas Agreement (like most, if not all agreements) provides only that it "may" be terminated in certain circumstances;
c. the advice that the Ministry of Law and Justice in fact gave was not whether Antrix "need annul" the agreement, but rather whether it was permitted to annul the agreement and how it could do so. The advice was provided to Dr Radhakrishnan on 18 June 2010. It stated:
"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. However on such termination ANTRIX shall be required to reimburse DEVAS all the Upfront Capacity Reservation Fees and corresponding service taxes received by ANTRIX till that date."143
"[i]f a Party fails without satisfactory explanation to make available any other relevant evidence, including testimony, sought by one Party to which the Party to whom the request was addressed has not objected in due time or fails to make available any evidence, including testimony, ordered by the Arbitral Tribunal to be produced, the Arbitral Tribunal may infer that such evidence would be adverse to the interests of that Party".147
"15.1 Annulling the Contract: Considering the need (i) to preserve S-band spectrum for national requirements in strategic sector and for societal applications, (ii) certain concerns on technical, managerial, financial and contractual aspects of ANTRIX-DEVAS contract, and (iii) issues involved in DEVAS obtaining the Spectrum License for the proposed services... it would be inevitable to annul the ANTRIX-DEVAS contract.
The ANTRIX-DEVAS contract has specific clauses for termination of the contract. Ministry of Law and Justice have given their views on feasibility of terminating the contract. The Department, in consultation with Law Ministry, may invoke appropriate clause, and terminate the contract.
In the event of termination of the contract, M/s ANTRIX will have to refund the Capacity Reservation Fee received from M/s DEVAS.
The Department will evolve a revised utilization plan for GSAT-6 and GSAT-6A satellites."
"[the] Department, 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 Antrix-Devas contract".155
a. the Space Commission’s resolution (see  above);
b. a draft letter from the DOS to Antrix stating that Antrix may inform Devas that the Devas Agreement is terminated in accordance with "Article 7(c)(i) read with Article 11"; and
c. a draft letter from Antrix to Devas terminating the agreement in accordance with the "Article 7(c) read with Article 11".157
"[t]he modus of termination has been specified in the agreement in clause 7. But I am afraid that the conditions stipulated in this clause cannot be invoked at this stage for the purpose of terminating the contract The only other relevant provision for seeking recourse to terminate the contract under the given factual scenario viz., national needs and change in governmental policies, would be Article 11 of the contract, relating to 'Force Majeure'".
There can be no dispute whatsoever that the Government of India is the owner of satellite spectrum space and any policy taken by the Government of India with regard to allocation and use of S bandwith, including those which are subject matter of contractual obligations, would fall within the doctrine of force majeure, as envisaged in the very agreement between Antrix and Devas."158
"[i]t is always advisable that in the present case, instead of the Department of Space taking a decision to terminate, 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. That would give a greater legal sanctity to the decision to terminate the contract in as much as the contractual provisions expressly stipulate that for the force majeure event, 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."159
a. during a "status review" on 5 August 2010 Devas was informed that "shipment and delivery date" for GSAT-6 was now 10 December 2010;160
b. on 20 August 2010 Devas requested an urgent meeting with Dr Radhakrishnan, noting that Antrix had stopped even referring to the potential launch date (cf. the "shipment and delivery’ date).161 Devas was told to seek a meeting with Mr Murthi (Executive Director of Antrix), rather than Dr Radhakrishnan.162 On 14 September 2010 Mr Murthi told Devas that PS1 would be finished in one to two months, but did not provide a launch date;163 and
c. on 27 October 2010 Devas met with Antrix’s new Executive Director, Mr Madhusudhan, who said that he would "apply his energies in getting ISRO to meet stated milestones and assist in exploring launch solutions".164 On 10 January 2011 Mr Madhusadhan said that PS1 was still three to four months away from completion.
"[s]ources said ISRO chief K Radhakrishnan had written to the PMO demanding cancellation of the agreement on the ground that it favoured Devas Multimedia. No urgency was, however, shown to revoke the deal even after the law ministry raised serious concerns about the proposal, terming it "illegal".167
"we took up the matter to the Space Commission, which in July 2010 made a few decisions. One of the decision was there is high priority for the country's strategic requirements and the societal applications which have be to met using the S-band spectrum that is in the possession of ISRO and we also decided to take actions to annul the contract...
Subsequent to the decisions taken by the Space Commission, of which the Secretary Space is the Chairman and we have very senior members in the commission, we started necessary actions for terminating the contract which required extensive consultations with the concerned agencies in the government Department of Telecommunication, Department of Law and Justice, all included. The idea is to ensure that a ___ contract that has been entered into has to be now terminated without causing much of embarrassment and damage and financial loss to the government. We had to go through that process and we have been going through that process and soon we expect to complete that process."168
a. on 11 February 2011 it wrote to Dr Radhakrishnan and stated (inter alia) that any decision to review the Devas Agreement without informing Devas was contrary to the parties’ obligation to act in "utmost good faith". Devas asked that any issues relating to the Devas Agreement that may further adversely impact the ability of Antrix to perform the Devas Agreement be disclosed.169 Dr Radhakrishnan did not respond;
b. also on 11 February 2011 Devas wrote to Antrix in respect of (inter alia) its delay in delivering space segment capacity for the period from 22 June 2009 to 21 June 2010. Devas demanded that Antrix pay (the Indian Rupees equivalent to) USD 5 million as a Late Delivery Penalty.170 Antrix did not respond; and
c. on 14 February 2011 Devas wrote to Antrix and asked Antrix to confirm that it intended to honour the terms of the agreement. It said that if it did not receive a response within one week it would assume that there were disputes or differences arising under the agreement and would be referring the matter to the senior management of Antrix and Devas for resolution in accordance with the agreement’s dispute resolution provisions.171 Antrix did not respond.
"[t]here have been no backroom talks. I think I have not met anybody myself and the decision of the Space Commission to annul the deal was taken on 2nd July, 2010. Space Commission took a number of decision [sic] of which annulment of the contract was one of them. The Dept of Space was asked to take action on all the five decision points that emerged from the Space Commission meeting. The issue of how to annul the contract required consideration by legal experts and the Law Ministry was consulted. A decision had to be taken on whether to annul the contract using article 7(c) or Article 11 or both read together. Eventually it has been decided that the Government should take a sovereign policy decision regarding the utilization of Space Band capacity which uses S Band spectrum having regard to the country's strategic requirements."172
"45.1) 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 a 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.
45.2) 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."
"[t]he Central Government has communicated that it has taken a policy decision not to provide orbital slot in S-Band to our Company for commercial activities including those which are the subject matter of the existing agreements.
In accordance with Article 7(c) of the Agreement, it is declared that Antrix is unable to obtain the necessary frequency and orbital slot coordination as stipulated in the Agreement.
Without prejudice to the inability expressed under Article 7(c), notice of force majeure as defined in Article 11, is expressed. The policy decision of the Central Government acting in its sovereign capacity is the event of force majeure which has occurred on 23rd February 2011. The force majeure commenced on 23rd February 2011. The scope and duration of the said decision cannot be anticipated. It is likely to be indefinite. It is not possible for Antrix to take any effective step to resume the obligations under the Agreement. The event of force majeure is beyond the reasonable control of Antrix and is clearly covered by Article 11(b) of the Agreement and, in particular, 11 (b)(v) "... act of governmental authority in its sovereign capacity... ". Any possibility of resumption of obligations by Antrix under the Agreement stands excluded. The subject Agreement, No. ANTX/203/DEVAS/2005 dated 28th January 2005, therefore, is terminated with immediate effect."
"[w]e refer to your letter of 25 February 2011 in which you purported to terminate the above-referenced Agreement.
There clearly was no basis for you to terminate the Agreement and, accordingly, the purported termination of the Agreement by your 25 February 2011 letter was wrongful and in repudiatory breach of the Agreement. Devas was entitled to accept Antrix’s repudiatory breach of contract and to bring the Agreement to an end, whilst claiming damages.
Since then Antrix also has obstructed the expeditious determination of the arbitration proceedings commenced by Devas.
Antrix continues to be in repudiatory breach of the Agreement even today and has clearly evinced its intention not to perform the Agreement. Devas has elected to, and does hereby, accept Antrix’s repudiatory breach of the Agreement, bringing the Agreement to an end as a result of Antrix’s wrongful actions.
Devas will be amending its claim in the ICC arbitration to reflect the withdrawal of its claim for specific performance whilst maintaining its claim for damages as a result of Antrix’s breaches of contract.
Devas reserves all of its rights including under Indian law and international law."
"[i]n the administration of the law of contracts, the Courts in India have generally been guided by the rules of the English common law applicable to contracts where no statutory provision to the contrary is in force".184
a. Does the tribunal have jurisdiction to hear and determine this dispute?
b. Did Antrix have any right to terminate the Devas Agreement pursuant to Article 7(c) thereof?
c. Was there any "Force Majeure Event" as defined in Article 11 of the Devas Agreement? If so, to what consequence?
d. Is Antrix entitled to rely on Section 56 of the Indian Contract Act, 1872 and if so, can it claim impossibility of the Devas Agreement based-on the CCS decision?
e. Did Antrix’s conduct amount to a repudiation/renunciation of the Devas Agreement or was the Devas Agreement validly terminated by Antrix’s letter of 25 February 2011?
f. If Antrix’s conduct amounted to a repudiation/renunciation of the Devas Agreement, was that a material breach of the Devas Agreement within the meaning of Article 7(b), and did Devas terminate the agreement within the meaning of Article 7(b) when it accepted the repudiation?
g. In the event the tribunal finds jurisdiction and concludes that Antrix is liable, would it be appropriate to use a discounted cash flow (DCF) analysis to determine damages and, if so, whet compensation/damages should be awarded?
h. What is the rate of pre-award and post-award interest that should be applied to an award of compensation/damages?
i. Which party should bear the legal and arbitration costs of this matter, and in what amount?
a. the Supreme Court of India has held that Devas was entitled to commence this arbitration, which "forecloses" Antrix from now challenging the tribunal’s jurisdiction;
b. in any event, the arbitration agreement is not pathological; and
c. further, Antrix ought to be estopped from arguing that the clause is pathological, because when it purported to start an arbitration under the UNCITRAL Arbitration Rules it accepted that the arbitration clause in the Devas Agreement was "fully workable" and "not at all pathological".188
"the Arbitration Agreement contemplates the constitution of an Arbitral Tribunal without any reference to the ICC Rules or the ICC Court, [so] the recourse taken by Devas to approach the ICC Court was without any basis and was contrary to the express agreement between the parties".190
"[t]he matter is not as complex as it seems and in our view, once the Arbitration Agreement had been invoked by Devas and a nominee Arbitrator had also been appointed by it, the Arbitration Agreement could not have been invoked for a second time by the Petitioner, which was fully aware of the appointment made by the Respondent".191
"[i]n view of the language of Article 20 of the Arbitration Agreement which provided that the arbitration proceedings would be held in accordance with the rules and procedures of the International Chamber of Commerce or UNCITRAL, Devas was entitled to invoke the Rules of arbitration of the ICC for the conduct of the arbitration proceedings".192
"[o]nce the provisions of the ICC Rules of Arbitration had been invoked by Devas, the proceedings initiated thereunder could not be interfered with in a proceeding under Section 11 of the 1296 Act. The invocation of the ICC Rules would, of course, be subject to challenge in appropriate proceedings but not by way of an application under Section 11(6) of the 1996 Act. Where the parties had agreed that the procedure for the arbitration would be governed by the ICC Rules, the same would necessarily include the appointment of an Arbitral Tribunal in terms of the Arbitration Agreement and the said Rules".195
"the only precedents in the world on the question of the effectiveness of an arbitration clause naming two different institutions or sets of arbitration rules without agreement of the parties on which would apply have made clear that the clause would be inoperative to confer jurisdiction without such agreement."199
"[i]f the dispute continues, the Parties can submit to binding arbitration before international bodies such as the arbitration court of OHADA, the Centre for the Settlement of International Disputes (ICSID) or the International Chamber of Commerce in Paris."203
"[a]ny dispute arising under this charter party to be referred to 'The Korean Commercial Arbitration Association, Seoul, Korea' and 'The Japan Shipping Exchange, Inc. Japan' and the award of which to be final and binding upon both parties."
"[i]n our opinion, the Courts have to adopt a pragmatic approach and not a pedantic or technical approach while interpreting or construing an arbitration agreement or arbitration clause. Therefore, when faced with a seemingly unworkable arbitration clause, it would be the duty of the Court to make the same workable within the permissible limits of the law, without stretching it beyond the boundaries of recognition. In other words, a common sense approach has to be adopted to give effect to the intention of the parties to arbitrate. In such a case, the court ought to adopt the attitude of a reasonable business person, having business common sense as well as being equipped with the knowledge that may be peculiar to the business venture. The arbitration clause cannot be construed with a purely legalistic mindset, as if one is construing a provision in a statute."208
"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)."
"[i]n accordance with Article 7(c) of the Agreement, it is declared that Antrix is unable to obtain the necessary frequency and orbital slot coordination as stipulated in the Agreement... The subject Agreement, No. ANTX/203/DEVAS/2005 dated 28th January 2005, therefore, is terminated with immediate effect."
a. What weight, if any, is to be placed on the ASG’s opinion that Antrix was unable to terminate the Devas Agreement in accordance with Article 7?
b. Does Article 7(c) concern frequency and orbital slot clearance from both international and national agencies?
c. If yes:
i. Was Antrix unable to obtain the necessary clearance from international agencies?
ii. Was Antrix unable to obtain the necessary clearance from domestic agencies?
"the Contract is clear that Antrix had to obtain the "necessary Governmental and Regulatory Approvals relating to orbital slot and frequency clearances," including from the WPC. There is no dispute that such Governmental and Regulatory Approvals were not obtained and, after the decision of the Cabinet Committee on Security, could never be obtained".230
"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" (emphasis added).
"[t]he policy decision of the Central Government acting in its sovereign capacity is the event of force majeure which has occurred on 23rd February 2011. The force majeure commenced on 23rd February 2011. The scope and duration of the said decision cannot be anticipated. It is likely to be indefinite. It is not possible for Antrix to take any effective step to resume the obligations under the Agreement. The event of force majeure is beyond the reasonable control of Antrix and is clearly covered by Article 11 (b) of the Agreement and, in particular, 11 (b)(v) '... act of governmental authority in its sovereign capacity...'".
"Article 11. Force Majeure
a. Neither of the Parties hereto shall be liable for any failure or delay in performance of its obligations hereunder if such failure or delay is due to Force Majeure as defined in this Article, provided that notice thereof is given to the other Party within seven (7) calendar days after such event has occurred.
b. For the purposes of this Agreement, "Force Majeure Event" shall include any event, condition or circumstance that is beyond the reasonable control of the party affected (the "Affected Party") and that, despite all efforts of the Affected Party to prevent it or mitigate its effects (including the implementation of a business continuation plan), such event, condition or circumstance prevents the performance by such Affected Party of its obligations hereunder. The following events may be considered Force Majeure Events under the Agreement: (i) explosion and fire; (ii) flood, earthquake, storm, or other natural calamity or act of God; (iii) strike or other labor dispute; (iv) war, insurrection, civil commotion or riot; (v) acts of or failure to act by any governmental authority acting in its sovereign capacity; (vi) changes in law and regulation, (vii) National emergencies, (ix) Launch Failure.
c. If an Affected Party Is rendered unable, wholly or in part, by a Force Majeure Event, to carry out some or all of its obligations under the Agreement, then, during the continuance of such Inability, the obligation of such Affected Party to perform the obligations so affected shall be suspended.
d. The Affected Party shall give written notice of the Force Majeure Event to the other party (the "Unaffected Party") as soon as practicable after such event occurs, and not later than 7 days after such event, which notice shall include information with respect to the nature, cause and date of commencement of the occurrence(s), and the anticipated scope and duration of the delay. Upon the conclusion of a Force Majeure Event, the Affected Party shall, with all reasonable dispatch, take all necessary and effective steps to resume the obligation(s) previously suspended.
e. Notwithstanding the foregoing, an Affected Party shall not be excused under this Article for (1) any non-performance of its obligations under the Agreement having a greater scope or longer period than is justified by the Force Majeure Event, or (2) the performance of obligations that arose prior to the Force Majeure Event. Nothing contained herein shall be construed as requiring an Affected Party to settle any strike, lockout or other labor dispute in which it may be involved.
f. Notwithstanding anything contained herein, in the event of Launch Failure of PS1 or PS2, the articles related to re-launch guarantee in Article 3 (d), and termination under special circumstances in Article 7 shall apply and take precedence over the terms contained herein.
g. In the event of failure or delay in the performance of this Agreement arising out of an event of Force Majeure which lasts longer than 90 (ninety) days, both parties shall discuss the further course of action on a mutually agreeable basis. However, such action could include termination at the option of Unaffected Party if total delays exceed 12 liability shall arise on termination under this clause as far as the affected party is concerned."
a. the decision of the CCS to annul the agreement was not an "act of or failure to act by any governmental authority acting in its sovereign capacity" within the meaning of Article 11(b);236
b. the CCS’ decision was "brought about by, or is otherwise attributable to" Antrix’s "own or its parent's actions" (and therefore cannot, in law, be a force majeure event);237 and
c. Antrix "instigated" the alleged "Force Majeure Event", so it was not "beyond the reasonable control" of Antrix within the meaning of Article 11(b);238
d. Antrix did not make "all efforts" to "prevent it or mitigate its effects" as required by Article 11(b);239
e. Article 11 permits the "Unaffected Party" (Devas) to terminate the agreement in light of "Force Majeure Events", not the "Affected Party" (Antrix).240
"[t]he practice of nearly all international arbitral tribunals is to require each party to prove the facts upon which it relies in support of its case... The only exceptions relate to propositions that are so obvious, or notorious, that proof is not required".
a. it was not "a final policy ‘decision’ by a sovereign regulator" to use S-band for military purposes, but rather left "open for the government itself (whether ISRO or another entity) to use the S-band for commercial activity".243 The tribunal does not accept this submission. There is nothing to suggest that Article 11(b) was intended to apply only to "final policy decisions". It refers to "acts of or failure to act by any governmental authority acting in its sovereign capacity". The CCS’ decision was clearly an "act" of a "government authority" that was acting in its "sovereign capacity", so it falls within that definition. In any event, it was a final policy decision (being that the Devas Agreement should be annulled);
b. Article 11(b) "cannot be construed to allow a governmental entity to make unavailable the very thing that Antrix was unconditionally required under Article 3(c) to provide" (i.e. Governmental and Regulatory Approvals relating to orbital slot and frequency clearances).244 To the contrary, Devas contends that it is "well settled under Indian law that a contract should not be interpreted so as to render any term thereof redundant or futile".245 The tribunal does not accept this submission either. Construing Article 11(b) to permit Antrix to terminate the agreement based on its failure to provide orbital slots and frequency does not render Article 3(c) redundant or futile; it simply means that the obligation in Article 3(c) is subject to Article 11;
c. a "sovereign event must act upon the parties ab extra" (i.e. "from outside"), whereas "[h]ere, Antrix is leasing a property belonging to the Government acting not as an independent party but as the marketing arm".246 The tribunal also does not accept this submission. Devas has not referred to any provision of the Devas Agreement, or any authority, to suggest that the term "sovereign event" must operate ab extra. In any event, the CCS’ decision was an ab extra event. As discussed below (see  - ), Antrix has a legal personality that is separate and distinct to the GOI, so the CCS’ decision operated on it "from outside"; and
d. CCS’ motivation for terminating the agreement was not military needs, but "political compulsions".247 Again, however, the relevant criteria are that there was an "act" of a "government authority" that was "acting in its sovereign capacity". CCS’ motivation for deciding to annul the Devas Agreement is therefore not relevant.248 Accordingly, the tribunal does not accept this submission either.
"[n]either party shall be responsible for damage caused by delay or failure to perform in whole or in part the stipulations of the present Agreement, when such delay of (sic) failure is attributable to earthquakes, acts of God, strikes, riots, rebellion, hostilities, fire, flood, acts or compliance with requests of any governmental or EC authority war conditions or other causes beyond the control of the party affected, whether or not similar to those enumerated. The party invoking force majeur (sic), shall give prompt notice to the other party by fax, telex followed by registered letter stating the kind of Force Majeure. The certificate issued by the respective Chamber of Commerce and Industry shall be considered as sufficient proof of such circumstances and the duration".
"[f]or Okta to be able to rely on the clause they have to show that the failure to perform is attributable to a request which was beyond Okta’s control... The essential issue is whether, if it is the case that Okta instigated or initiated the requests contained in the November and May letters, they can rely on the letters as constituting 'requests... beyond their control'. Once the question is posed in that form, it is clear that they cannot, for the simple reason that they need not have set the process in motion at all. They could, instead, have decided to comply with their contractual obligations."252
"so clear that a foreign government is taking action purely in order to extricate a state enterprise from contractual liability, that it may be possible to deny to such action the character of government intervention, within the meaning of a particular contract."254
"[i]t was Dr. Radhakrishnan who in June 2010 obtained Law Ministry advice "as to how to annul the Contract"; it was he who proposed and secured the Space Commission's decision authorizing him to pursue this strategy; it was he who obtained confirmation from the Additional Solicitor-General as to the means of annulling the contract by contriving to deprive Antrix of the leased spectrum for commercial purposes; and it was he who, several months later, secured a CCS decision in precisely the form devised by the ASG - the supposed "Force Majeure Event".257
"[a] clear distinction must be drawn between a company and its shareholder, even though that shareholder may be only one and that the Central or a State Government. In the eye of the law, a company registered under the Companies Act is a distinct legal entity other than the legal entity or entities that hold its shares".262
a. whether or not Dr Radhakrishnan was acting in his capacity as Chairman of Antrix when he engaged in the conduct that Devas relies on; or
b. if he was acting in his capacity as an officer of DOS, ISRO or the Space Commission, his conduct should be attributed to Antrix. For that to be the case, however, the tribunal must be satisfied that:
i. the DOS, ISRO and/or the Space Commission were acting as the agent of Antrix at relevant times; or
ii. there is some other legal basis for treating the conduct of DOS, ISRO and/or the Space Commission as the conduct of Antrix, such as "piercing the corporate veil".
"[t]o the extent it seeks to claim Dr. Radhakrishnan's actions, in seeking to undermine the Devas Agreement and bring about the CCS decision, were done in a capacity other than as Antrix’s Chairman (e.g., as Secretary of DOS or Chairman of ISRO), this notion should be rejected... The relationship between Antrix and GOI are dispositive of this issue. Antrix is the marketing arm of the Government (DOS)."265
"Devas does not assert that Antrix signed the contract as a pass-through "booking" agent, as Antrix now seeks to characterize Devas's case. Rather, Devas has alleged, and Antrix has admitted, that in signing the contract, Antrix expressly did so as the "marketing arm of [DOS]" and "the entity through which ISRO engages in commercial activities.""266
"[i]f you read the recitals [of the contract], sir... [t]he second recital then says: "Whereas Antrix is a marketing arm of the Department of Space and is the entity through which ISRO engages in commercial activities". As far as this contract is concerned - and you do not need extraneous evidence, much less judgments of the Supreme Court which state the obvious, ie that a corporate entity is distinct from its shareholders for certain purposes - this is what the contract says. "Antrix is". It is sufficient for me, and we don’t need to go beyond this".267
"[w]hether dealing with state companies or private companies, including the myriad subsidiaries and special purpose companies organised by the world’s major corporations, the formation of "marketing arms" does not abrogate or in any way compromise the separate legal personality of such entities."268
a. obtained advice from the Ministry of Law and Justice about how to annul the agreement;273
b. permitted his department to inform the Space Commission that it was "inevitable" that the Devas Agreement be annulled;274
c. sat as Chair of the Space Commission when it resolved that the DOS may instruct Antrix to annul the agreement;275
d. sought advice from the ASG concerning the annulment of the Devas Agreement;276 and/or
e. sought approval from the CCS to annul the Devas Agreement.277
a. the definition of "Force Majeure Event" in Article 11(b) is limited to events that Antrix has made "all efforts... to prevent". Therefore, in order for Article 11 (b) to apply in respect of the CCS’ decision to annul the Devas Agreement, Antrix must have made "all efforts" to prevent that decision from being made; and
b. Antrix made no efforts to prevent that decision from being made. There is no evidence of Dr Rhadakrishnan - or any other officer of Antrix - making any effort to prevent the CCS from annulling the Devas Agreement. Nor is there any evidence of Dr Rhadakrishnan -or any other officer of Antrix - making any effort to prevent the conduct that led to CCS making that decision (such as the Law of Ministry and Justice providing advice about how to annul the Devas Agreement, the Space Commission being advised that annulment of the agreement was "inevitable" and the ASG’s advice being sought concerning the annulment of the agreement).
"in a case in which the consequences of non-performance of contract is provided in the statutory contract itself, the parties shall be bound by that and cannot take shelter behind Section 56 of the Contract Act".282
"has no applicability here, where the force majeure clause, far from purporting to allocate the risk of force majeure to Antrix, expressly acknowledges that governmental acts taken in a sovereign capacity do constitute force majeure".284
"[o]n the failure of the auction purchaser to make such deposit referred to in sub-rule (10) or take out such licence or execute such agreement temporary or permanent or furnish such personal surety or additional cash security as aforesaid, the deposit already made by him towards earnest money and security shall be forfeited to Government".
"[i]t is not the case of the State that appellant has purposely, or for any oblique motive, or as a device to avoid any loss, refused to execute the agreement. It appears to us that the State was helpless because of the public upsurge against the sale of arrack at Kaladi, the birth place of Adi Shankaracharya as, in their opinion, the same will render the soil unholy. Consequently, the State also found it impossible to re-sell or redispose of the arrack shops. In view of second paragraph of Section 56 of the Contract Act, a contract to do an act which after the contract is made, by reason of some event which the promissory could not prevent becomes impossible, is rendered void. Hence, the forfeiture of the security amount, may be illegal. But what would be the position in a case in which the consequence for non-performance of contract is provided in the statutory contract itself? The case in hand is one of such cases. The doctrine of frustration excludes ordinarily further performance where the contract is silent as to the position of the parties. In the event of performance becoming literally impossible. However, in our opinion, a statutory contract in which a party takes absolute responsibility cannot escape liability whatever may be the reason. In such a situation, events will not discharge the party from the consequence of non-performance of a contractual obligation. Further, in a case in which the consequences of non-performance of a contract is provided in the statutory contract itself, the parties shall be bound by that and cannot take shelter behind Section 56 of the Contract Act."285
"[i]n English law therefore the question of frustration of contract has been treated by courts as a question of construction depending upon the true intention of the parties. In contrast, the statutory provisions contained in Section 56 of the Indian Contract Act lay down a positive rule of law and English authorities cannot therefore be of direct assistance, though they have persuasive value in showing how English courts have approached and decided cases under similar circumstances."290
"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)."
a. it only applies where Devas "terminates" the agreement, and Devas did not terminate the agreement but rather accepted Antrix’s repudiation;
b. it does not apply to repudiatory breaches; and
c. it does not apply unless Devas (a) put Antrix on written notice that Devas believed Antrix was in material breach and (b) gave Antrix the opportunity to cure that breach within three months, and Devas did not take either of those steps.293
"[u]nder the general law, a party has the right to terminate a contract if the other party commits a 'repudiatory breach’... When a repudiatory breach occurs, the other party has a choice whether to terminate the contract or to affirm it (and thereby lose the right to terminate the contract for the relevant breach)".297
"[w]hen one party wrongly refuses to perform obligations, this will not automatically bring the contract to an end. The innocent party has an option. He may either accept the wrongful repudiation as determining the contract and sue for damages, or he may ignore or reject the attempt to determine the contract and affirm its continued existence".298
"[a]n innocent party, faced by a repudiatory breach, is therefore given a choice: he can either treat the contract as continuing ("affirmation" of the contract) or he can bring it to an end ("acceptance of the repudiation"). He must "elect" or choose between these options... An act of acceptance of a repudiation requires no particular form. It is usually done by communicating the decision to terminate to the party in default... Unless and until the repudiation is accepted the contract continues in existence for "an unaccepted repudiation is a thing writ in water.299
a."[w]here the parties have deliberately specified the amount of liquidated damages there can be no presumption that they, at the same time, intended to allow the party who has suffered by the breach to give a go-by to the sum specified and claim instead a sum of money which was not ascertained or ascertainable at the date of the breach";304 and
b. the liquidated damages clause "does not expressly or by necessary implication keep alive the right to claim damages under the general law. By providing for compensation in express terms the right to claim damages under the general law is necessarily excluded and, therefore, in the face of that clause it is not open to the appellant to contend that that right is left unaffected."305
"[t]he question that needs to be determined by us is whether the breaches alleged by the respondent are covered by the stipulations contained in Clause 7.2 [(the liquidated damages clause)]. If the answer is in the affirmative, obviously compensation cannot be awarded beyond what is provided therein. On the other hand, if breaches are not covered by Clause 7.2, cap provided therein with regard to liquidated damages will not be applicable at all".307
"[i]t is not a question of giving restrictive or wider meaning to Clause 7.2 but the question is what is intended by the parties by making a provision such as this and does such clause cover all situations of breaches by SAIL".308
"[i]t is well known that intention of the parties to an instrument has to be gathered from the terms thereof and that the contract must be construed having regard to the terms and conditions as well as nature thereof."309
"(a) The consumer shall pay for the supply of electric energy at the rates enforced by the supplier from time to time as may be applicable to the consumer.
(b) The rate schedule applicable to the consumer at the time of execution of this agreement is annexed hereto as Annexure 2.
(c) The rate schedule above mentioned, may, at the discretion of the supplier, be revised by the supplier from time to time."
"[i]t would be totally absurd and incongruous to suggest on behalf of the Board that on the one hand it guaranteed to the new industrial units for a period of three years from the date of commencement of supply 10% development rebate on the total amount of the bill and on the other hand the moment such supply started pursuant to the written agreement the very incentive could be withdrawn by it from its inception as a new industrial unit had to sign a written agreement containing clause 7(a), (b) and (c). If that submission on behalf of the Board which appealed to the High Court is accepted a most incongruous, unreasonable and absurd result would follow."316
"(i]t is also easy to visualize that a new industrial unit which spends large amounts for establishing its infrastructure and gets lured in the light of the representation held out by the Board and establishes its plant and machinery in the new unit, would not simultaneously and voluntarily agree by signing such an agreement with the Board to give up the very same benefit of incentive by permitting the latter to withdraw it at any time it likes. That would be doing violence to common sense and business approach of an ordinary prudent businessman. No businessman in his senses would ever agree voluntarily to such an absurd, incongruous and inconsistent predicament."317
"[t]he court is unlikely to be satisfied that a party to a contract has abandoned valuable rights arising by operation of law unless the terms of the contract make it sufficiently clear that that was intended. The more valuable the right, the clearer the language will need to be".319
"[t]he principles I deduce from the authorities which are relevant to the present type of case of deliberate, repudiatory breach involving personal wrongdoing are as follows. (1) There is no rule of law applicable and the question is one of construction. (2) There is a presumption, which appears to be a strong presumption, against the exemption clause being construed so as to cover deliberate, repudiatory breach. (3) The words needed to cover a deliberate, repudiatory breach need to be very 'clear' in the sense of using 'strong' language such as 'under no circumstances'. (4) There is a particular need to use 'clear', in the sense of 'strong', language where the exemption clause is intended to cover deliberate wrongdoing by a party in respect of a breach which cannot, or is unlikely to be, covered by insurance. Language such as 'including deliberate repudiatory acts by [the parties to the contract] themselves' would need to be used in such a case. (5) Words which, in a literal sense, cover a deliberate repudiatory breach will not be construed so as to do so if that would defeat the 'main object' of the contract. (6) The proper function between commercial parties at arm's length and with equal bargaining power of an exemption clause is to allocate insurable risk, so that an exemption clause should not normally be construed in such cases so as to cover an uninsurable risk or one very unlikely to be capable of being insured, in particular deliberate wrongdoing by a party to the contract itself (as opposed to vicarious liability for others). (7) Words which in a literal sense cover a deliberate repudiatory breach cannot be relied upon if they are 'repugnant' have not dealt with this in detail because it is not relevant to this case."321
"[w]ith the greatest respect to the learned Deputy Judge [in Internet Broadcasting], in my judgment, this conclusion is wrong on the modern authorities and effectively seeks to revive the doctrine of fundamental breach (which the House of Lords in both Suisse Atlantique Societe d'Armement Maritime v NV Rotterdamsche Kolen Céntrale  1 AC 361 and Photo Production v Securicor  1 AC 827 concluded was no longer good law), albeit under the guise of 'deliberate repudiatory breach"
"In my judgment, the judgment in MARHedge [(i.e. Internet Broadcasting)] is heterodox and regressive and does not properly represent the current state of English law. If necessary, I would decline to follow it. Even if the breach... had been a deliberate repudiatory breach... the question whether any liability... for that breach was limited by clause M would simply be one of construing the clause, albeit strictly, but without any presumption."325
"I consider that Flaux J was right, and that the appeal does not have a real prospect of success, [but] the point is an important one and the conflict of authority should be resolved by the Court of Appeal."328
"[t]he Contractor hereby acknowledges and agrees that the Company shall have no liability whatsoever in contract, tort (including negligence) or otherwise for any loss of goodwill, business, revenue or profits".
a. an exception clause must "reflect the contemplation of the parties that a breach of contract, or what apart from the clause would be a breach of contract, may be committed, otherwise the clause would not be there; but the question remains open in any case whether there is a limit to the type of breach which they have in mind";332
b. "[t]he exercise of construction is essentially one unitary exercise in which the court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would have reasonably been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant. In doing so, the court must have regard to all the relevant surrounding circumstances. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other";333 and
c. "one can[not] rewrite the language which the parties have used in order to make the contract conform to business common sense. But language is a very flexible instrument and, if it is capable of more than one construction, one chooses that which seems most likely to give effect to the commercial purpose of the agreement".334
"[t]here also in my view comes into play the presumption that neither party to a contract intends to abandon any remedies for its breach arising by operation of law - see per Lord Diplock in Modern Engineering v Gilbert-Ash  AC 689 at 717. Lord Diplock went on to say that clear words must be used to rebut this presumption and the judge plainly thought that the words here used were sufficiently clear for that purpose. The judge should not in my view have reached that conclusion without first examining the context."335
"if the judge's construction of Clause 18.6 is adopted, [it is] effectively devoid of contractual content since there is no sanction for non-performance by the Respondent. It is inherently unlikely that the parties intended the clause to have this effect."336
"thought that the only words relevant to his task of construction were those words from Clause 18.6 of the Agreement... The judge did not, at any rate overtly, look at those words either in the context of the clause in which they appeared or in the context of the contract as a whole".338
a. whether a limitation of liability clause applies is to be determined by reference to the parties’ intentions;339
b. those intentions are to be determined by reference to the terms and conditions of the contract as a whole, as well as the nature of the contract, and not just the words used in the clause itself.340 The parties’ intentions may also be determined by reference to the perspective of "a businessman in his senses";341
c. if there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense or the commercial purpose of the agreement.342 Constructions that would result in an absurd, incongruous and inconsistent predicament should be avoided;343 and
d. it may be presumed that neither party to a contract intends to abandon any remedies for its breach arising by operation of law. Clear words must be used to rebut this presumption.344
"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)."
"[e]ither of the Parties (ANTRIX or DEVAS) shall indemnify, defend and hold harmless the other Party, its officers, directors, employees, agents, consultants from and against any loss, damages, liabilities, expenses, claims, actions, charges, costs, interests, and penalties suffered by the indemnified Party together with the attorney's fees, arising from the fault of the indemnifying Party."
"[t]he right of either Party under this clause shall be in addition to the right to damages or any other rights available at common law or-equity in respect of any breach of the warranties, representations and undertakings of the other Party. Provided however, that no right or claim of any nature whatsoever shall arise by virtue of or under this clause, for matters specifically provided for elsewhere in this agreement including matters relating to termination of this agreement".
a. it can keep the agreement on foot and be completely compensated for any loss and damage that it suffers; or
b. it can terminate the agreement, and forfeit its entitlement to compensation for any loss and damage that it suffers.
a. on the one hand, Antrix must indemnify Devas for any and all loss or damage that Devas suffers if it does not terminate the agreement; and
b. on the other, Antrix has carte blanche to cease performing its obligations under the agreement, thereby depriving Devas of any meaningful choice about whether the contract should be brought to an end, and avoiding any obligation to compensate Devas for losses that it causes Devas to incur.
"[t]he Arbitral Tribunal shall determine the admissibility, relevance, materiality and weight of evidence", and in the tribunal’s view, pre-contractual negotiations are generally an unreliable guide to the meaning of a contract and should not be given any weight They tend to reflect parties’ desires and negotiating positions, not their concluded agreement following necessary compromises. Where the meaning of the contract is sufficiently clear, evidence of pre-contractual negotiations should therefore be avoided. For the reasons set out above, the tribunal considers that the meaning of Article 7(b) is sufficiently clear.
a. first proposed provisions to the effect that, if Devas terminated the agreement "for cause", it would receive substantial liquidated damages;351 and
b. later proposed a provision to the effect that, if Devas terminated the agreement (for any reason) it would be entitled to all remedies that were available at common law.352
"[w]hen a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it."
"it is a commonly accepted standard for awarding forward looking compensation that damages must not be speculative or uncertain, but proved with reasonable certainty; the level of certainty is unlikely, however, to be the same with respect to the conclusion that damages have been caused, and the precise quantification of such damages. Once causation has been established, and it has been proven that the in bonis party has indeed suffered a loss, less certainty is required in proof of the actual amount of damages; for this latter determination Claimant only needs to provide a basis upon which the Tribunal can, with reasonable confidence, estimate the extent of the loss."357
"[b]y way of preliminary I feel bound to say that I think that a ‘high civil balance of probabilities’ is an unfortunate mixed metaphor. The civil standard of proof always means more likely than not. The only higher degree of probability required by the law is the criminal standard. But, as Lord Nicholls of Birkenhead explained in In Re H  AC 563, 586, some things are inherently more likely than others. It would need more cogent evidence to satisfy one that the creature seen walking in Regent’s Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian. On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not."358
"[a]s to the value of the jewel several of the trade were examined to prove what a jewel of the finest water that would fit the socket would be worth; and the Chief Justice directed the jury, that unless the defendant did produce the jewel, and shew it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages: which they accordingly did".
a. PS1 and PS2 had not been launched as at 25 February 2011;
b. Devas had not received a Frequency Authorization and Operating Licence from the WPC;364
c. the Ancillary Terrestrial Component (ATC) fee that the WPC would charge for that licence was unknown;
d. there were technological changes in the telecommunications market which meant that Devas lost its "first mover" status; and
e. there was increased competition in the telecommunications market that had eroded profits of telecommunications companies.365
"one can look at India’s BWA [Broadband Wireless Access] auctions to attain a proxy for the cost of Devas’ 70MHz of nationwide spectrum. We can derive a cost per MHz from Infotel’s US$2,855 billion outlay for 20 MHz in all 22 circles in India’s May 2010 BWA auction... Infotel’s payment amount implies a cost of US$142.8 million per MHz. Applying that ratio, Devas would have had to pay US $10 billion for its 70 MH."375