High Court Hears Arguments on Whether FSIA Requires "Minimum Contacts" to Enforce International Arbitration Awards

The Supreme Court heard argument in Cide Boss Mauritius Limited v. Antrix on whether the Foreign Sovereign Immunities Act (FSIA) requires U.S. courts to apply the traditional "minimum contacts" test before confirming and enforcing international arbitration awards against foreign states. Petitioners’ counsel and the United States urged the court to reverse the Ninth Circuit and hold that an FSIA immunity exception is sufficient for jurisdiction; counsel for Antrix said the arbitration and Federal Arbitration Act (FAA) limits — and foreign-relations concerns — counsel hesitation about U.S. courts enforcing this award.

The question matters because confirmation of an arbitral award creates a judgment that can be executed on assets in the United States. "An arbitral award against a foreign state is worth little if no courts can enforce it," Mr. Street, counsel for the petitioner, told the court, arguing that Congress added the FSIA’s arbitration exception to permit enforcement of New York Convention awards against foreign sovereigns. Justice Thomas pressed how confirmation helps if there are no resources in the United States; counsel answered that a money judgment had been entered by the district court and that petitioners had executed on an Antrix asset in the Eastern District of Virginia.

Petitioners’ central position, advanced by Mr. Street and Mr. McGill, was that the text of 28 U.S.C. §1330(b) (the FSIA jurisdictional provision) leaves no room for a judicially imposed minimum-contacts requirement. Mr. McGill told the court that "Congress provided in the FSIA that personal jurisdiction shall exist over every claim where there is an immunity exception and service," and that importing minimum contacts would be "unfaithful to [the statute's] text." Counsel for the United States (Miss Harris) supported a narrow statutory disposition: she urged the Court to hold that the FSIA does not incorporate a minimum-contacts test and emphasized chapter 2 of title 9 and the New York Convention as showing Congress intended courts to recognize and enforce international arbitration awards so long as they fall within the Convention and related statutory provisions.

Respondent Antrix, through Mr. Phillips, urged a different view: the enforcement question should be resolved in light of the FAA and the limits of Congress's commerce power. Phillips described the underlying contract as an agreement between Indian entities to arbitrate in India under Indian law and said "there is nothing in that agreement that remotely implicates any interest of the United States." He argued that Chapter 2 of the FAA implements the New York Convention but contended the Convention and the FAA must be read against the limits of the commerce clause and that U.S. courts should not be opened to adjudicate purely foreign disputes lacking a U.S. commercial nexus.

Several justices asked whether the arbitration-exception argument had been waived below and whether the Court should decide constitutional questions now. Petitioners and the United States said the arbitration-point had largely been conceded below and that §1605(a)(6) (the arbitration exception) should not be read to require a U.S. commerce nexus. Petitioners also invited the Court to address constitutional issues now — including whether foreign states are "persons" under the Due Process Clause — but acknowledged that some questions were presented in related cases pending before the Court and could be addressed later. Justice Jackson and others asked whether a remand to the Ninth Circuit might be appropriate to consider newly pressed arguments in the first instance; counsel and the justices debated remand versus deciding the statutory question now to avoid a round trip.

The argument touched on precedents cited by the parties. Counsel invoked Mitsubishi Motors (construing "subject matter capable of arbitration under the laws of the United States"), Weltover (on treatment of foreign governments), Verlinden (on foreign plaintiff v. foreign state jurisdictional principles), and other decisions, and both sides urged statutory and precedent-based readings that favored their positions. Petitioners warned that adopting Antrix's view would "gut" the New York Convention's aim of making international arbitration awards enforceable in the United States; Antrix warned of foreign-relations consequences and the problem of U.S. courts second-guessing foreign-court decisions that set awards aside.

The case was submitted at the close of argument. The immediate legal question before the Court is whether enforcement of a New York Convention arbitration award against a foreign sovereign in U.S. courts requires an additional minimum-contacts inquiry beyond the FSIA’s statutory exceptions, and, if so, whether that requirement arises from the FSIA’s text or from constitutional due-process constraints.