NEW DELHI: The Permanent Court of Arbitration (PCA) in The Hague has said that the annulment of the agreement between Devas and Indian Space Research Organization’s commercial arm Antrix in 2011 which resulted in denying Devas commercial use of S-band spectrum constituted an expropriation.
PCA administers cases under the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL).
In a reaction, the Government of India reiterated that it had invoked the essential security interests through a well reasoned, valid and proper CCS decision. The award of the Tribunal is being examined and legal recourse, as deemed fit, will be taken.” We also remain committed to pursue our larger national interests including sovereign strategic security interests in this matter”, it said.
This ongoing case with Mauritius-based Devas Corporation over sharing of spectrum on satellites may result in huge payments as compensation to Devas.
The order said by this action, the Indian Government expropriated the investments of Devas's foreign shareholders and also acted unfairly and inequitably, thus making it liable to pay financial compensation.
(In a statement, the Government of India said The Tribunal had said it's essential security interest provisions of the Treaty do apply in this case to an extent. The limited liability of compensation shall be limited to 40% of the value of the investment. The precise quantum has not been determined as yet. The Tribunal has dismissed the Claims as regards violation of other provisions of the Treaty viz., (i) unreasonable or discriminatory measures; as also (ii) Most Favoured Nation treatment, it said.
In 2005 Antrix and Devas entered into an agreement for the long-term lease of two ISRO satellites operating in the S-band. The deal was for 70 MHz of S-Band frequency used to provide multimedia services by leasing most of the transponders on the GSAT-6 and GSAT-6A satellites for 12 years. Devas was to pay $300 million over the said period.
However, the government annulled the contract after reports of unilateral process and presumptive loss to exchequer due to the deal. Following this the US investors in Devas moved a case against Antrix.
In 2015 the International Chamber of Commerce (ICC) tribunal ruled that the Antrix's annulation was unlawful and awarded Devas damages and pre-award interest of approximately $672 million, plus post-award annual interest accruing at 18 per cent until the award is paid in full.
Devas Multimedia, based in Bangalore, was set up by former ISRO scientists and some U.S. investors. According to Devas website investors included Deutsche Telekom AG, Columbia Capital LLC, and Telcom Ventures LLC.
Meanwhile, the Enforcement Directorate, has issued a show cause notice to Devas for violation of Foreign Exchange Management Act 1999 and are further investigating the case under Prevention of Money Laundering Act 2002. The Directorate has issued show cause notice to Devas for contravention to the provisions of FEMA 1999.
The CBI has filed an FIR against, inter-alia, M/s Devas Multimedia Pvt. Ltd, Bangalore; and other unknown public servants of M/s Antrix/ISRO/DOS. This case is presently under investigation.