Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
Issue link: https://digital.carswellmedia.com/i/1541334
24 www.lexpert.ca Top 10 Business Decisions THE REPUBLIC OF INDIA faced enforcement proceedings in Quebec following international arbitration awards totalling US$111 million from India's 2011 termination of a satellite spectrum agree- ment with Devas Multimedia Services. After the Permanent Court of Arbitration ruled in 2016 and 2020 that India was liable for illegal expropriation, investors CCDM Holdings, Devas Employees Fund US, and Telcom Devas sought to enforce the awards globally. In Quebec, they obtained ex parte seizure orders in November 2021 against funds belonging to the Airport Authority of India (AAI) held by the International Air Transport Association (IATA) in Montreal. India and AAI challenged these seizures, claiming state immunity and arguing that Quebec's newly enacted International Air Transport Association Act exempted the funds from seizure. REPUBLIC OF INDIA C. CCDM HOLDINGS, 2024 QCCA 1620 The Quebec Court of Appeal delivered a groundbreaking decision in December 2024, ruling that India explicitly waived its jurisdictional immunity by ratifying the New York Convention and agreeing to arbitration under its bilateral invest- ment treaty with Mauritius. The court held this waiver extended to both arbitration proceedings and subsequent enforcement actions in domestic courts. Significantly, the court ruled that judges may authorize pre-judgment seizures before deciding immunity issues on the merits, preserving the conservatory nature of such measures while preventing asset dissipation. "This decision from the Court of Appeal of Quebec is not only a significant win for the Devas investors in their world- wide enforcement efforts against India but also a landmark decision insofar as this is the first time a Canadian appellate court • The Republic of India > Stikeman Elliott LLP > Éric Mongeau, Patrick Girard, Vincent Lanctôt-Fortier, Marianne Bastille-Parent • CCDM Holdings, LLC, Devas Employees Fund US, LLC, TELCOM Devas, LLC > Borden Ladner Gervais LLP > Mathieu Piché-Messier, Karine Fahmy, Amanda Afeich, and Dayeon Min • Airport Authority of India > Davies Ward Phillips & Vineberg LLP > Corey Omer, William Brock, Éloïse Noiseux, and Natalia Koper • Air India Limited > Woods LLP > Ioana Jurca and Marc-Antoine Côté • International Air Transport Association > Dentons Canada LLP > Claude Morency, Anthony Rudman, Stéphane Beaulac, and Alexander Little CLIENTS > FIRMS > LAWYERS considers the novel issues of the waiver exception under the SIA and of whether the SIA prevents ex parte seizure before judgment against foreign states. It is also the first time that an appellate court opens the door to the possibility of executing a foreign state debt against the assets of an alter ego of the foreign state," said Karine Fahmy of Borden Ladner Gervais LLP. Claude Morency of Dentons Canada LLP noted that "the cases involve intricate matters of private international law and public international law, notably encom- passing issues of state immunity and the application of a private Bill enacted at the request of IATA which limits the seizures of money held by IATA on behalf of participants to its financial services," underscoring the decision's complexity and precedential value for international arbitration enforcement.