Summary

TABLE OF CONTENTS

I. INTRODUCTION
A. The Dispute
B. Parties to the Dispute
1. Claimants
2. Respondent

II. BACKGROUND TO THE DISPUTE
A. Claimants Invest In India
1. The Devas-Antrix Agreement
2. Claimants Make Substantial Investments To Develop The Devas Project
B. India Terminates The Agreement, Violating Its Obligations Under The BIT
C. Arbitrations Follow Termination Of Devas-Antrix Agreement And India Retaliates
1. The Arbitrations Trigger Retaliatory Investigations By Indian Authorities
2. India's Losses Prompt Indian Authorities To Launch Even More Investigations
3. The ED Seizes Devas's Funds And Raids Its Offices
4. The ED And CBI Continue Baseless And Harassing Investigations
D. Adverse Decisions Prompt India To Take Over Devas
E. The Liquidator Fires Devas's Counsel And Acts Against Devas's And Its Shareholders' Interests
F. The Liquidator Continues To Undermine Award Enforcement

III. JURISDICTION
A. Claimants Initiate Arbitration Pursuant To Article 3 Of The UNCITRAL Rules
B. The Requirements Of The BITs To Proceed To Arbitration Under the UNCITRAL Rules Have Been Satisfied
1. India Has Consented To Arbitration
2. Claimants Are Qualifying Investors
3. Claimants Have Made Protected Investments

IV. SUMMARY OF CLAIMS
A. India Has Unlawfully Expropriated Claimants' Investment
B. India Has Failed To Accord Claimants Fair And Equitable Treatment
C. India Has Unlawfully Provided Less Favorable Treatment To Claimants Than That Accorded To Domestic Investors Or Investors Of Any Third State
D. India Has Failed To Provide Claimants With Full Protection And Security
E. India Has Failed To Allow Claimants To Freely Transfer Funds

V. PROPOSAL FOR CONSTITUTION OF THE ARBITRAL TRIBUNAL

VI. PROPOSALS AS TO PLACE AND LANGUAGE OF THE ARBITRATION

VII. REQUEST FOR RELIEF

I. INTRODUCTION

1. CC/Devas (Mauritius) Ltd. ("CC/Devas"), Telcom Devas Mauritius Limited ("Telcom Devas"), and Devas Employees Mauritius Private Limited ("DEMPL") (together, the "Claimants"), hereby commence an arbitration against the Republic of India ("India" or "Government" or "Respondent") under the Arbitration Rules of the United Nations Commission on International Trade Law (1976) (the "UNCITRAL Rules").

2. This Notice of Arbitration is submitted pursuant to (i) Article 3 of the UNCITRAL Rules, and (ii) Article 8 of the 4 September 1998 Agreement Between the Government of the Republic of Mauritius and the Government of the Republic of India for the Promotion and Protection of Investments, entered into force 20 June 2000 (the "BIT" or "Treaty").

3. Claimants have duly authorized the undersigned to institute and pursue arbitration proceedings on their behalf against India under the BIT.

A. The Dispute

4. This dispute arises from India's violations of Claimants' rights under the Treaty by engaging in an audacious scheme to evade payment of an arbitration award (and subsequent US court judgment) valued in excess of USD 1.3 billion against India's wholly owned and controlled state enterprise, Antrix Corporation Limited ("Antrix"), the commercial arm of the Indian Department of Space ("DOS"). The award was in favor of an Indian company of which Claimants are shareholders, Devas Multimedia Private Limited ("Devas"), following a commercial arbitration before the International Chamber of Commerce ("ICC") (the "ICC Award"). Aside from the ICC Award, India has also evaded a USD 111 million award (plus interests and costs) that Claimants obtained against it under an earlier BIT arbitration arising from the same underlying dispute. India has pursued its scheme to evade payment of the ICC Award by hollowing out the judgment-debtor Antrix by transferring all of its contracts and business to a newly formed company also wholly owned and controlled by India, appropriately named "NewSpace." But even more relevant to the protections offered by the Treaty, India has used every arm of the State to pursue an unprecedented campaign of attacks against Devas in India, including conducting baseless "investigations" of Devas and its officers and employees, from which government officials concocted equally baseless allegations of "fraud" so fantastic that neither Antrix nor India has dared to air them before any impartial tribunal. Within India, however, the mere allegations have been employed prima facie to force Devas into liquidation, which Indian courts have acknowledged is for the express purpose of invalidating the ICC Award.

5. The following facts have already been adjudicated by multiple tribunals--Devas was incorporated in India in 2004 by foreign investors including Claimants, as a vehicle to enter into and perform an agreement between Devas and Antrix (the "Devas-Antrix Agreement") that followed from protracted, arm's-length negotiations. Under the Devas- Antrix Agreement, Antrix leased a portion of India's "S-band" frequency allocation to Devas for an upfront, lump-sum amount and regular lease payments, including a commitment to build and launch two satellites with Devas instruments into orbit for the purpose of providing broadband internet and multimedia services to customers across India.

6. Claimants' investments in Devas enabled Devas to perform its obligations under the Devas-Antrix Agreement. Devas procured the appropriate licenses, paid the requisite fees, and conducted multiple, successful technology trials. By 2009, notwithstanding repeated delays by Antrix in preparing the satellites, Devas officials remained hopeful that Antrix would be prepared to launch in the near future.

7. That did not happen. In 2009, apparently as a result of unrelated scandals involving telecommunications and Indian government officials, political pressure began to mount against the Devas-Antrix Agreement. On 25 February 2011, Antrix informed Devas that it was terminating the Devas-Antrix Agreement on force majeure grounds due to demands of the Indian state. Disclosures in the arbitrations revealed that government officials sought but could not identify any failure to perform by Devas.

8. Following Antrix's termination of the Agreement, Devas initiated an arbitration against Antrix under the Devas-Antrix Agreement. Thereafter, Claimants and another major investor in Devas, Deutsche Telekom ("DT"), initiated separate BIT arbitrations (the "Arbitrations") against India under its treaties with Mauritius and Germany, respectively.

Devas and its investors prevailed in all three arbitrations. India responded by taking retaliatory action, including opening unjustified criminal investigations against Devas, its employees, and officers. Such harassment intensified as the Arbitrations progressed and India's liabilities increased. India's investigative agencies raided Devas's offices, held its employees and officers in custody all night without counsel, and refused to release them until they signed coerced statements. While these "investigations" proceeded, Antrix and India avoided raising any allegations of fraud in any of the Arbitrations. Antrix's counsel called the investigations a "red herring" and a "rabbit hole" before a US court in proceedings to confirm Devas's arbitration award against Antrix.

9. India's efforts to intimidate the Claimants and undermine the Arbitrations escalated in November 2020, after a US court confirmed Devas's award against Antrix and issued a judgment in Devas's favor of almost USD 1.3 billion. In response, India's regulatory agencies initiated a program to rid the Government of its substantial debt by dissolving Devas, its creditor. Indian officials created an Inter-Ministerial Monitoring Committee, specifically charged with "expediting" proceedings against Devas and its principals, and placing the country "on a war footing" against enforcement of the arbitral awards. India then amended its arbitration law with purportedly retrospective effect, to allow award- debtors like Antrix to stay arbitration enforcement proceedings indefinitely without posting security on the basis of "prima facie" fraud allegations.

10. Antrix unsurprisingly amended its application in Indian courts to set aside Devas's arbitral award to add newly-minted fraud allegations, despite never before having raised such allegations in more than a decade of litigation and arbitration before other tribunals. Antrix then sought and received permission from the Government of India to file a wind-up petition against Devas. Within days, and with virtually no notice to Devas, a provincial companies court in India accepted Antrix's allegations and appointed a provisional liquidator, an Indian government employee, to liquidate Devas. The liquidator immediately took steps to stop enforcement of the ICC Award, firing all of Devas's counsel worldwide--including counsel in the US federal court proceeding that had resulted in confirmation of the ICC award. The liquidator, moreover, has accepted wholesale Antrix's allegations of fraud, and made it his mission to find purported "support" for them.

11. While Devas's shareholders have only been permitted limited participation in these proceedings, they have challenged the liquidation at every step. But a few months later, in May 2021, the court made Devas's liquidation official. The liquidation was then confirmed by a national appellate court for corporate matters, and most recently by India's Supreme Court, all on the basis of the untested and preposterous allegations of fraud by Antrix.

Indian courts have made plain that the purpose of the liquidation is to prevent Devas from enforcing the ICC Award. In their through-the-looking-glass reasoning, "Antrix and Union of India," are Devas's victims, "hav[ing] suffered [the] huge ICC Award and [] facing its enforcement proceedings," while Devas is somehow "misusing the legal status conferred on it by virtue of its incorporation" by seeking to enforce a duly obtained and confirmed arbitral award.1 India's repudiation of its obligations, and its enlistment of its judiciary to help it do so, could not be more clear.

12. Unsurprisingly, since taking charge of Devas, the state-employed liquidator has failed to protect the assets and interests of Devas or its shareholders, including its USD 1.3 billion judgment against Antrix. The liquidator has instead performed as if instructed by Antrix and the Indian government. After firing Devas's counsel worldwide, the liquidator delayed in hiring replacement counsel when ordered to by the US court that had confirmed the ICC Award. The liquidator has since attempted to delay US enforcement proceedings, presumably waiting for the Indian courts to set aside the ICC Award.

13. India has accordingly abused its sovereign powers and violated its obligations under the BIT by (i) unlawfully expropriating Claimants' investment in Devas, (ii) failing to accord Claimants fair and equitable treatment, (iii) unlawfully providing less favorable treatment to Claimants than accorded domestic investors or investors of any third state, (iv) failing to provide Claimants with full protection and security, and (v) failing to allow Claimants to freely transfer funds.

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VII. REQUEST FOR RELIEF

123. India's multiple violations of the BIT entitle Claimants to relief as set out below. It is worth noting that Claimants' request for relief, including their request for compensation, is separate and independent from the relief granted by the Quantum Award. While the Initial Arbitration arose from India's wrongful conduct in relation to its cancellation of the Devas-Antrix Agreement, this current dispute arises from India's unlawful and abusive measures against Devas to preclude it from collecting on the ICC Award. Accordingly, Claimants' requests for relief relate to the wrongful conduct that was not the subject of the Quantum Award (which India, in any event, has not yet paid)

124. Claimants respectfully request an award in their favor:

a) Declaring that India has breached its obligations under the BIT;

b) Directing India to make full reparation to each of the Claimants for the injury or loss to their respective investments arising out of India's violations of the Treaty and applicable rules of international law, including damages of no less than Claimants' share of the amount of the ICC Award and Judgment of approximately USD 1.3 billion;

c) Ordering interest not covered in any damages awarded to Claimants, including post-award interest on all sums awarded at the same rate as for the ICC Award;

d) Ordering India to pay all costs associated with this arbitration, including Claimants legal fees and expenses, management time, witnesses, experts and consultants' fees and expenses, administrative fees and expenses of the administration of this case, and the fees and expenses of the Tribunal, together with post-award interest on those costs so awarded; and

e) Granting such other and further relief as the Tribunal deems just and proper.

125. Claimants reserve the right to provide a more precise calculation of its damages and losses in due course. Claimants further reserve the right to supplement and modify the claims set forth in this Notice of Arbitration, to make additional claims, to request such additional or different relief as may be appropriate, to submit memorials, documents, exhibits, witness statements, expert reports, and other evidence elaborating its case and the relief sought in the course of these proceedings.

Dated: 2 February

Gibson, Dunn & Crutcher LLP
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