Did fighting the wrong battle cost Antrix the Devas war?

Did Antrix concede too much ground to Devas Multimedia by contesting the jurisdiction of the ICC International Court of Arbitration, which eventually decided the dispute in favour of the latter?

The final award of the ICC, a copy of which is with BusinessLine , shows that Antrix — the marketing arm of ISRO — failed to nominate an arbitrator or have a say in fixing the terms of reference for the arbitral tribunal.

The dispute between Antrix and Devas Multimedia, a satellite-based communications service provider, arose when the former cancelled a contract for building two satellites for the latter in 2011.

The ICC ruling, which ordered Antrix to pay $672 million to Devas, reveals that Antrix did not even send its nomination for the three-member arbitration tribunal to the ICC. Rather, it chose to petition the Supreme Court to commence a separate arbitration against Devas, a plea that eventually failed.

“Antrix did not file an answer to Devas’ request for arbitration or nominate an arbitrator for this arbitration, but the tribunal understands that it informed the Secretariat of the ICC Court that it denied that any arbitral tribunal constituted under the 1998 ICC Rules of Arbitration would have jurisdiction to decide Devas’ claims and that the ICC Court should not proceed with this arbitration,” states the final order of the ICC tribunal.

On August 19, 2011, when the ICC announced its decision to go ahead with the arbitration, Antrix did not send its nomination. While Devas appointed Veedar QC as its nominee on the arbitration panel, ICC appointed Justice A S Anand as the default arbitrator on behalf of Antrix. The two members then appointed Michael Pryles as the Chairman of the tribunal.

On November 24, 2011, Antrix wrote to the court raising concerns with the appointment of Pryles on grounds that there was a conflict of interest. Pryles was the Chair of Board of Directors of the Singapore International Arbitration Centre (SIAC). Devas Multimedia was being represented at the ICC Court by law firm Amarchand Mangaldas & Mangaldas & Suresh A Shroff & Co. The conflict of interest may have arisen because Pallavi S Shroff, a senior partner in the law firm, was also member of the SIAC. However, after the initial letter, Antrix did not pursue the matter and no further challenge was made despite the ICC asking it to file an appeal under relevant rules.

On several other occasions Antrix did not participate in the initial proceedings. For example, on January 10, 2012, Antrix declined to attend a preliminary conference that was held to discuss draft terms of reference and the appointment of the tribunal secretary. On March 9, 2012, when the ICC called Antrix to sign the terms of reference, the ISRO arm did not turn up.

Antrix’s position was heavily anchored on the hope that the Supreme Court would give a favourable ruling on its plea that questioned the jurisdiction of the ICC. It was only after the Supreme Court dismissed its petition on May 10, 2013, that Antrix started participating in the ICC court proceedings. But by then key decisions like the composition of the tribunal and terms of reference had been already firmed up.

It continued to maintain that the ICC had no jurisdiction before the arbitration tribunal, which found no merit in the argument, and slapped it with a $672-million fine for breach of contract.

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