CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited and Telecom Devas Mauritius Limited v. India, UNCITRAL, Decision on the Respondent's Challenge to the Hon. Marc Lalonde and Prof. Francisco Orrego Vicuña (September 30, 2013)
1. This challenge arises in an arbitration between Claimants CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited and Telcom Devas Mauritius Limited and Respondent the Republic of India under the Arbitration Rules of the United Nations Commission on International Trade Law 1976 (the "1976 UNCITRAL Arbitration Rules") pursuant to the Agreement between the Government of the Republic of Mauritius and the Government of the Republic of India for the Promotion and the Protection of Investments entering into force June 20, 2000 (the "Treaty"). According to Article 8(2)(d)(i) of the Treaty, the appointing authority shall be the President, the Vice-President or the next senior Judge of the International Court of Justice, who is not a national of either Contracting Party.
2. In this arbitration, the Claimants allege that the Respondent violated the Treaty by taking measures affecting the Claimants' investments in an Indian company, Devas Multimedia Private Limited ("Devas"), which in 2005 entered into a contract with an Indian state entity under the control of the Indian Space Research Organization, Antrix Corporation Limited (" Antrix") .1 According to the Claimants, pursuant to this agreement, Antrix agreed to lease capacity in the S-Band, part of the electromagnetic spectrum, to Devas which would launch two satellites to provide multimedia services to mobile users across India. The Claimants contend that the Respondent endeavored to cancel the agreement in breach of its international obligations under the Treaty.
3. This decision resolves a challenge brought by the Respondent to the appointment of the Presiding Arbitrator, the Hon. Marc Lalonde, and the appointment of the arbitrator appointed by the Claimants, Professor Francisco Orrego Vicuna, on the ground that the arbitrators served together on two tribunals which took a position on a legal issue (the "essential security interests" clause) expected to arise in the present proceedings. The Respondent finds further grounds for challenging Professor Orrego Vicuna's appointment in his participation on a third tribunal that also took up the same issue and in an article authored by Professor Orrego Vicuna in which he discussed his view on the issue. The Respondent emphasizes that all three arbitral decisions were later annulled or annulled in part.