Federal Court of Australia
Federal Court of Australia
CCDM Holdings, LLC v Republic of India (No 3) [2023] FCA 1266 File number(s): NSD 347 of 2021
Judgment of: JACKMAN J
Date of judgment: 24 October 2023
Catchwords: ARBITRATION – international arbitration – originating application seeking recognition and enforcement of foreign arbitral award of the Permanent Court of Arbitration – interlocutory application to set aside originating application on the basis of foreign State immunity PRIVATE INTERNATIONAL LAW – where foreign State respondent asserts sovereign immunity under s 9 of the Foreign States Immunities Act 1985 (Cth) (FSI Act) – whether there has been a submission to the jurisdiction of the Court within the meaning of s 10(2) of the FSI Act – where the foreign State has signed the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) – where the applicants tender a copy of the arbitral award and a copy of what appears on its face to be an arbitral agreement – where the respondent contends that the arbitral agreement is tainted by fraud – consideration of the impact of findings of fact and law in winding up proceedings in India – whether the New York Convention can apply to the conduct of a State acting in its governmental capacity – whether any waiver from the signing of the New York Convention is limited to arbitrations by consent – clear and unmistakable submission by agreement by the respondent PRIVATE INTERNATIONAL LAW – whether the commercial transactions exception to foreign State immunity in s 11 of the FSI Act is made out – where the respondent annulled an agreement for the lease of space segment capacity in the S-band on the respondent's satellites – whether s 11 of the FSI Act provides a freestanding exception to foreign State immunity – whether the present proceeding "concerns" the annulment – whether the annulment is a "commercial transaction" or "like activity" – where the annulment was a decision made by the highest executive organ of a foreign State for reasons of public policy – exception to foreign State immunity not made out
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