CC/DEVAS (Mauritius) Ltd v Republic of India

A. Introduction and background 1 These are my reasons for granting the applicants leave to serve the respondent, the Republic of India, outside Australia in accordance with s 24 of the Foreign States Immunities Act 1985 (Cth). The applicants sought such leave in circumstances where the respondent has already filed a conditional notice of address for service in the proceeding. Why the applicant takes that course requires some explanation. 2 The proceeding was commenced by originating application in April 2021. The originating application sought an order pursuant to s 8(3) of the International Arbitration Act 1974 (Cth) (IAA) that the award on quantum of the Permanent Court of Arbitration in Case No. 2013-09 dated 13 October 2020 against India (the Award) be enforced as if it were a judgment of the Court. Further orders for payment of, or judgment for, the following sums were sought: (1) US$50,497,600 plus interest thereon in favour of the first applicant, CC/Devas (Mauritius) Ltd; (2) US$10,300,800 plus interest thereon in favour of the second applicant, Devas Employees Mauritius Pte Ltd; (3) US$50,497,600 plus interest thereon in favour of the third applicant, Telecom Devas Mauritius Ltd; and (4) US$10 million plus interest thereon in favour of the applicants. 3 In short, the applicants seek enforcement of an arbitral award and judgment in sums that together exceed US$120 million. 4 The originating application indicated that it was not intended to serve the application on the respondent. That was in reliance on r 28.44(3) of the Federal Court Rules 2011 (Cth) which provides that an application to enforce a foreign award under s 8(3) of the IAA may be made without notice to any person. Nevertheless, the applicants gave informal notice of the application to the respondent by hand delivering a copy of the originating application and supporting affidavit to the High Commission of India in Canberra on 6 May 2021. Further notice was given on 7 May 2021 by sending the originating application and supporting affidavit by email to legal counsel for the respondent in the arbitration conducted under the auspices of the Permanent Court of Arbitration in the arbitration proceeding that led to the Award that the applicants seek to enforce. 5 The matter came before me for case management in the arbitration list for the first case management hearing on 19 May 2021. The respondent appeared, "subject to jurisdiction", by counsel who explained that his appearance was a limited appearance pursuant to s 10(7) of the Immunities Act. That subsection provides that a foreign State shall not be taken to have submitted to the jurisdiction in a proceeding by reason only that it has intervened, or has taken a step, in the proceeding for the purpose or in the course of asserting immunity. It was thus clearly a conditional appearance. 6 Expressly without prejudice to any claim the respondent may make to foreign state immunity, or any objection to the Court's jurisdiction, or any conditional appearance, orders were made by consent that: (1) the respondent file and serve any notice of appearance on or before 3 June 2021; and (2) the respondent notify the applicants in writing on or before 15 June 2021 (subsequently extended to 21 June 2021) as to the issues which it would propose to contend against the relief sought in the originating application, including any claim for immunity under the Immunities Act and any stay of the application. 7 The stated purpose of the respondent producing the document referred to in the second subparagraph above, as it was explained by senior counsel for the applicants, was for case management purposes so that the Court and the parties would be informed "as to the lay of the land on what issues are likely to arise in these proceedings." It was said to be "purely an informative document for case management purposes." Those characterisations were accepted by counsel for the respondent. 8 On the designated day of 3 June 2021, the respondent filed a notice of address for service under the Rules which states the following: The Republic of India, the Respondent, asserts its immunity as a foreign State to the jurisdiction of the courts of Australia in respect of these proceedings and does not submit to the jurisdiction. Pursuant to r 13.01 of the Federal Court Rules 2011 (Cth), this Notice is accompanied by an application and affidavit seeking (1) an order that the originating application of CC/Devas (Mauritius) Ltd & Ors be set aside, (2) a declaration that the originating application has not been duly served on the Respondent and (3) a stay of the proceedings. The application also seeks, (3) in the alternative to order (2), and to the extent service has been validly effected (which is denied), an order setting aside that service. Subject to the above, the Respondent gives notice of its address for service for the limited purpose of appearing conditionally to assert its immunity and have the originating application set aside and, as part of that assertion, to seek a declaration that the Applicants have failed to serve the initiating process on the Respondent in accordance with Part III of the Foreign States Immunities Act 1985 (Cth): [Place]: [Australian solicitors' address and email address] 9 At the same time, the respondent filed an interlocutory application in which it sought the orders referred to in the notice of address for service. It also filed an affidavit which attached inter-solicitor correspondence in which the following contentions were put on behalf of the respondent: (1) The effect of s 25 of the Immunities Act is that the applicants are required to effect service of any application in a manner contemplated by ss 23 and 24 of the Immunities Act. (2) The requirements as to service under the Immunities Act have not been met. 10 The respondent subsequently furnished a document purportedly in compliance with the order at [6(2)] above, which it titled "Statement of Issues". I say "purportedly" because the document goes way beyond the case management purposes expressly identified at the hearing and is more in the nature of a detailed pleading. The document is more than five pages and raises the following matters: (1) Reservation of rights: The respondent "formerly protests and objects" to any requirement that, prior to determination of issues of service, it be required to indicate any other issues which it would propose to contend against the relief sought in the originating application, and that insofar as the document sets out issues other than in relation to service it is made under protest. (2) Service: The respondent contends that the Immunities Act requires that a foreign State be served with an application pursuant to s 8 of the IAA in order that it can effectively assert its claim to immunity. Service of the originating process was required to be effected pursuant to s 24 of the Immunities Act through the diplomatic channel, and absent such service, and by reason of s 25 of the Immunities Act, the applicants have failed to serve the initiating process as required. (3) Stay: The proceeding should be stayed pending determination of (a) a proceeding pending before the Supreme Court of the Netherlands concerning the respondent's application to set aside an award on jurisdiction and merits issued in the arbitration proceeding on 25 July 2016, and (b) a proceeding before pending before the District Court of The Hague concerning the respondent's application to set aside the Award issued in the arbitration proceeding on 13 October 2020. (4) Foreign State Immunity: The respondent "protests and objects" to any requirement that it state the issues relating to immunity which it would propose to contend against the relief sought in the originating application in advance of the applicants identifying their contentions as to the bases upon which they contend that the respondent is not immune. (5) If service and immunity determined adverse to the respondent: Under protest and as a matter of courtesy only, the respondent indicates that if service and immunity are determined adversely to it and the proceeding is not stayed, the issues that might arise include a list of matters impugning the Award or the applicants' ability to enforce the Award. 11 The applicants' response to the respondent's contention that there had been no proper service on the respondent, and that the proceeding could not proceed without such service, was to file an interlocutory application for leave to serve the originating application outside Australia. 12 There was debate thereafter between the parties in correspondence, and at one stage also with me in a case management hearing, as to the proper course for the proceeding. The most obvious course would have been to first decide the respondent's contention that service was required. If that contention was upheld, then the applicants' application for leave to serve out of the jurisdiction would be dealt with next. If the result on service was the other way, then the proceeding could progress to deal with the other matters and the need for the application for leave to serve outside Australia would fall away. The respondent pressed its application with respect to service even though it had entered an appearance and was before me, albeit conditionally. 13 Ultimately the parties agreed that there should be an order by consent setting aside all previous orders in the proceeding. Such an order was made by me on 29 July 2021. The applicants then filed an interlocutory application for ex parte relief to amend their originating application and for leave to serve the amended originating application out of the jurisdiction. 14 In short, as the applicants explained by senior counsel at the case management hearing on 15 July 2021, the applicants wished to avoid the risk that they were successful on the service issue at first instance with the result that the proceeding then progressed to determination on the other issues and for their success on the service issue to be later reversed at one or other level of appeal. That would result in them having to start again. The safe course was therefore for them to start again now.