Ninth Circuit holds that forum non conveniens is not an available defense in actions to confirm foreign arbitral awards under New York Convention

The United States Court of Appeals for the Ninth Circuit has held, for the first time, that the doctrine of forum non conveniens is unavailable in actions to confirm a foreign arbitral award under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention).

On remand from the US Supreme Court, the Ninth Circuit addressed three issues in Devas Multimedia Private Ltd. v. Antrix Corp. Ltd.[1]: 1) subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA)’s arbitration exception, 2) personal jurisdiction under the Fifth Amendment, and 3) forum non conveniens.

The Ninth Circuit affirmed the district court on all three grounds. This alert focuses on the Court’s forum non conveniens analysis and provides key takeaways for parties holding foreign arbitral awards.

Background

This dispute centers on the long-running efforts of Devas Multimedia Private Ltd. (Devas) to enforce a $562.5 million arbitral award against Antrix Corp. Ltd. (Antrix), a wholly owned Indian corporation.

In 2005, Antrix and Devas entered into an agreement under which Antrix would construct, launch, and operate two satellites and lease to Devas a portion of India’s S-band radio spectrum.

In exchange, Devas agreed to pay construction and leasing fees. In February 2011, Antrix purported to terminate the agreement, invoking a government policy prohibiting the lease of the spectrum for commercial use. Devas initiated an International Chamber of Commerce (ICC) arbitration in July 2011, and in September 2015, a three-member tribunal concluded that Antrix had wrongfully terminated the agreement and issued an Award in favor of Devas.

In 2018, Devas petitioned the US District Court for the Western District of Washington to confirm the Award. The district court granted the petition and entered a $1.3 billion judgment against Antrix.

Antrix appealed, and in 2023, a Ninth Circuit panel reversed on personal jurisdiction grounds under then-controlling circuit precedent requiring Devas to demonstrate minimum contacts with the forum. The Supreme Court reversed in June 2025 – holding that the FSIA imposes no minimum contacts requirement beyond its enumerated exceptions – and remanded for the Ninth Circuit to address Antrix’s remaining arguments, including forum non conveniens.[2]

The Ninth Circuit’s opinion

The district court previously denied Antrix’s motion to dismiss on forum non conveniens grounds. On appeal, the Ninth Circuit affirmed, holding that the doctrine is unavailable in New York Convention enforcement proceedings for three reasons: It is inconsistent with 1) the text of the New York Convention, 2) the purpose of the New York Convention, and 3) the structure of enforcement proceedings.

First, the Ninth Circuit found that the text of the New York Convention does not include forum non conveniens as a ground upon which to refuse recognition and enforcement. The Convention establishes a mandatory enforcement regime for covered awards: Article III requires that each contracting state “shall recognize arbitral awards as binding and enforce them,” and Article V limits the available defenses by providing that recognition and enforcement “may be refused . . . only if” the resisting party proves one of the enumerated grounds (emphasis added).

The inconvenience of the forum is not among them. The Ninth Circuit warned that recognizing forum non conveniens as a basis to deny enforcement “would add a defense the treaty does not envision”[3] – a result at odds with the Convention’s command that covered awards be enforced absent a specifically enumerated defense.[4]

Second, the Ninth Circuit concluded that permitting dismissal on convenience grounds would undermine the treaty’s central objective. The “principal purpose” of the New York Convention is “to unify the standards by which . . . arbitral awards are enforced in the signatory countries.”[5] Allowing individual courts to refuse enforcement at their discretion would introduce exactly the kind of “discretionary, forum-by-forum defense to enforcement” that is “irreconcilable with the design of the Convention.”[6]

The Court also addressed Antrix’s argument that New York Convention Article III’s direction to courts to enforce awards “in accordance with the rules of procedure of the territory where the award is relied upon” incorporates forum non conveniens as a permissible rule of procedure. The Ninth Circuit rejected this reading, reasoning that the clause governs only the manner of enforcement but does not empower a signatory state to refuse enforcement altogether.

This conclusion follows directly from the Ninth Circuit’s decision nearly 25 years ago in Hosaka v. United Airlines, Inc.,[7] which held that forum non conveniens was incompatible with the Warsaw Convention despite that treaty’s similar direction that procedural questions be governed by the law of the forum. The Court applied the same reasoning then, as it does now.

The Ninth Circuit acknowledged that other courts have reached a different conclusion when interpreting analogous procedural clauses. In Figueiredo Ferraz E Engenharia de Projeto Ltda. v. Republic of Peru, for instance, the US Court of Appeals for the Second Circuit held that a comparable provision in the Panama Convention permitted the application of forum non conveniens.[8] The Ninth Circuit expressly disagreed, finding the Figueiredo dissent “more persuasive” in its view that such procedural clauses relate only to the manner of enforcement, not to whether enforcement may be refused entirely.[9]

Third, the Ninth Circuit held that the structure of a New York Convention enforcement action precludes application of the doctrine. Because forum non conveniens presupposes an adequate alternative forum, the doctrine cannot apply where no such alternative exists. In a confirmation proceeding, the award creditor seeks to execute against sovereign commercial assets located in the US – assets that, under the FSIA, only a US court has the power to attach.[10] No foreign tribunal can grant that relief. Accordingly, there is no alternative forum capable of providing a satisfactory remedy.

Conclusion

With this decision, the Ninth Circuit joins the US Court of Appeals for the DC Circuit in holding that forum non conveniens is unavailable in “proceedings to confirm a foreign arbitral award because only U.S. courts can attach foreign commercial assets found within the United States.”[11]

The ruling deepens the existing circuit split with the Second Circuit. For parties holding foreign arbitral awards and seeking to enforce them against sovereigns or state-owned entities with US-based assets, this decision offers important clarity: courts in the Ninth Circuit may not dismiss a New York Convention enforcement action on forum non conveniens grounds.

For more information, please contact the authors.

 

^{[1] Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., Nos. 20-36024, 2026 WL 2330570 (9th Cir. Aug. 12, 2026).}

^{[2] CC/Devas (Mauritius) Ltd. v. Antrix Corp., 605 U.S. 223 (2025).}

^{[3] Devas v. Antrix, No. 20-36024, at *8.}

^{[4] Restatement (Third) of the U.S. Law of Int’l Comm. Arb. § 4.27 (Am. L. Inst. 2023).}

^{[5] Devas, No. 20-36024, at *8 (quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n.15 (1974)).}

^{[6] Devas, No. 20-36024, at *8.}

^{[7] Hosaka v. United Airlines, Inc., 305 F.3d 989 (9th Cir. 2002).}

^{[8] Figueiredo Ferraz E Engenharia de Projeto Ltda. v. Republic of Peru, 665 F.3d 384, 391-392 (2d Cir. 2011).}

^{[9] Devas, No. 20-36024, n.8.}

^{[10] See 28 U.S.C. §§ 1609, 1610(a)(6).}

^{[11] Tatneft v. Ukraine, 21 F.4th 829, 840 (D.C. Cir. 2021) (quoting LLC SPC Stileks v. Republic of Moldova, 985 F.3d 871, 876 n.1 (D.C. Cir. 2021)).}