The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 16, 2025 Decided October 3, 2025
No. 24-7081
DEUTSCHE TELEKOM, A.G.,
APPELLEE
v.
REPUBLIC OF INDIA,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-01070)
Andrea Menaker argued the cause for appellant. With her
on the briefs were Nicolle Kownacki and Weiqian Luo.
James H. Boykin III argued the cause for appellee. With
him on the brief were Shayda Vance, Carter Rosekrans,
Winthrop Jordan, and Malik Havalic.
Before: SRINIVASAN, Chief Judge, KATSAS, Circuit Judge,
and ROGERS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KATSAS.
2
KATSAS, Circuit Judge: Deutsche Telekom, A.G., a
German telecommunications company, obtained a nearly $100
million arbitral award against India in Switzerland, after the
arbitral panel rejected India’s contention that the governing
arbitration clause did not extend to the dispute between those
two parties. Deutsche Telekom petitioned the district court to
confirm the award, and India filed a motion to dismiss.
The district court confirmed the award. It rejected India’s
arguments for dismissal based on sovereign immunity and
forum non conveniens. And it held that India’s substantive
defenses to confirmation were either foreclosed by the arbitral
agreement or forfeited. We hold that the court properly denied
the motion to dismiss but improperly declined to consider
India’s substantive defenses.
I
A
The Foreign Sovereign Immunities Act (FSIA) makes
foreign governments “immune from the jurisdiction of the
courts of the United States” unless a specific FSIA exception
applies. 28 U.S.C. § 1604. One such exception covers
petitions “to confirm an award made pursuant to … an
agreement to arbitrate,” if “the agreement or award is or may
be governed by” a United States treaty “calling for the
recognition and enforcement of arbitral awards.” Id.
§ 1605(a)(6)(B). This exception requires three elements: (1)
an arbitration agreement, (2) an arbitral award, and (3) a treaty
potentially governing confirmation. NextEra Energy Glob.
Holdings B.V. v. Kingdom of Spain, 112 F.4th 1088, 1100 (D.C.
Cir. 2024). We have held that a private party seeking
enforcement of an award against a foreign sovereign bears the
burden of production as to these elements and, if this burden is
met, the foreign sovereign then bears the burden of proving that
3
the exception does not apply. See id.; Chevron Corp. v.
Republic of Ecuador, 795 F.3d 200, 204 (D.C. Cir. 2015).
A foreign sovereign resisting enforcement of an arbitral
award may raise merits defenses as well as jurisdictional ones
based on immunity. This case involves merits defenses
provided under the United Nations Convention on the
Recognition and Enforcement of Foreign Arbitral Awards,
June 10, 1958, 21 U.S.T. 2517, which is popularly known as
the New York Convention. The Convention is a multilateral
treaty requiring signatory countries to enforce arbitral awards
made in other countries. N.Y. Convention art. I.1; see
Republic of Argentina v. AWG Grp., Ltd., 894 F.3d 327, 332
(D.C. Cir. 2018). As relevant here, the Convention permits
signatory countries to refuse “[r]ecognition and enforcement”
of a foreign arbitral award on various grounds, including if the
award resolves a dispute outside the scope of the parties’
agreement to arbitrate. N.Y. Convention art. V.1(c)
The Federal Arbitration Act (FAA) implements this
Nation’s obligations as a signatory to the New York
Convention. The FAA provides a cause of action to confirm
foreign arbitral awards—i.e., to convert them into enforceable
legal judgments. LLC SPC Stileks v. Republic of Moldova,
985 F.3d 871, 875 (D.C. Cir. 2021). The FAA requires
confirmation unless one of the grounds for refusal in the
Convention is present. 9 U.S.C. § 207.
Courts treat jurisdictional defenses under the FSIA and
merits defenses under the New York Convention differently.
Most notably, courts must determine for themselves questions
regarding jurisdictional defenses—including factual questions
bearing on the defenses. Hulley Enters. Ltd. v. Russian
Federation, 149 F.4th 682, 688 (D.C. Cir. 2025). In contrast,
the availability of merits defenses may turn on the scope of the
4
arbitration agreement. For example, parties may agree to have
the arbitral panel decide whether particular disputes fall within
the scope of the agreement to arbitrate. See BG Grp., PLC v.
Republic of Argentina, 572 U.S. 25, 33–35 (2014). And if
they do so, courts will not consider arguments about
arbitrability raised as enforcement defenses under Article
V.1(c) of the Convention. See Stileks, 985 F.3d at 878–79;
Chevron, 795 F.3d at 207.
This framework makes it important to distinguish between
jurisdictional and merits defenses in confirmation actions.
Under our precedent, an objection challenging the existence of
an arbitration agreement counts as a jurisdictional defense,
while an objection that the dispute falls outside the scope of an
arbitration agreement counts only as a merits defense under the
New York Convention. See NextEra, 112 F.4th at 1101;
Stileks, 985 F.3d at 877–79; Chevron, 795 F.3d at 205–06.
Because the FSIA affords an immunity from litigation
burdens as well as from adverse judgments, a foreign sovereign
may elect to defend confirmation proceedings in two phases.
Process & Indus. Devs. Ltd. v. Federal Republic of Nigeria,
962 F.3d 576, 586 (D.C. Cir. 2020). First, sovereigns may
raise colorable immunity defenses under the FSIA and pursue
interlocutory appeals if those defenses are rejected. Id. at 579,
583. Second, if those efforts fail, sovereigns may then raise
merits defenses under the New York Convention. Id. at 586.
B
This appeal arises from a bilateral investment treaty (BIT)
between the Federal Republic of Germany and the Republic of
India. The BIT governs investments that investors of one
country make in the other. It defines an “investment” to
include “every kind of asset invested.” J.A. 170. And it
defines “investors” as “nationals or companies of” one
5
signatory country “who have effected or are effecting
investment in the territory of” the other. Id. at 171.
Article 9 of the BIT provides for arbitration of any
investment dispute between an investor of one signatory
country and the other country. See J.A. 176. It states that
such arbitration will be “in accordance with” the Rules on
Arbitration of the United Nations Commission on International
Trade Law (UNCITRAL). Id. Article 9(2)(b)(v) states:
“The decision of an arbitral tribunal shall be final and binding
and the parties shall abide by and comply with the terms of its
award. The award shall be enforced in accordance with
national laws of the Contracting Party where the investment
has been made.” Id. at 177.
C
In 2005, Antrix Corporation Ltd., a space company wholly
owned by the Republic of India, entered into a venture with
Devas Multimedia Private Ltd., a privately owned Indian
company that provides satellite-based telecommunications.
Antrix agreed to lease Devas a portion of the electromagnetic
spectrum on two satellites that Antrix would launch into space.
Devas would provide multimedia services throughout India.
A few years later, Deutsche Telekom, A.G., a German
telecommunications company, agreed to invest nearly $100
million in Devas through a Singaporean subsidiary. In
exchange, Deutsche Telekom would receive about 20 percent
of Devas’s shares.
In 2011, India decided to retain the relevant spectrum for
other uses. It caused Antrix to terminate its deal with Devas.
Deutsche Telekom argued that India, in taking these actions,
violated its obligation under the BIT to fairly treat investments
6
by German investors. Pursuant to the BIT, Deutsche Telekom
initiated arbitration against India in Switzerland.1
Before the Swiss tribunal, India objected that the dispute
was not arbitrable under the BIT. India argued that Deutsche
Telekom was not a covered investor because its investment in
Devas occurred through another, Singapore-based entity.
India further argued that Devas’s activities in India were not
covered investments, but rather pre-investment activities. The
panel rejected these arguments, ruled for Deutsche Telekom on
the merits, and issued an interim award.
India asked the Federal Supreme Court of Switzerland to
set aside the award for lack of arbitrability. That Court
reviewed de novo India’s arguments about the lack of any
covered investor or investment, and it rejected them on the
merits. Tribunal fédéral [TF] Dec. 11, 2018, 4A_65/2018.
After the arbitral panel issued a final award for $93.3 million,
India sought revision in the Federal Supreme Court, which
again ruled for Deutsche Telekom. TF Mar. 8, 2023,
4A_184/2022. Courts in Germany and Singapore also
rejected these arguments and confirmed the award. See J.A.
1698 (Higher Regional Court of Berlin); id. at 1745 (Singapore
International Commercial Court).
D
Deutsche Telekom next petitioned for confirmation in our
district court. India moved to dismiss the action on grounds
of sovereign immunity and forum non conveniens. As to
immunity, India again urged that the dispute involved no
investor or investment covered by the BIT’s arbitration clause.
1
Devas initiated a separate arbitration against Antrix in India,
which gave rise to the enforcement proceedings discussed in
CC/Devas (Mauritius) Ltd. v. Antrix Corp., 145 S. Ct. 1572 (2025).
7
India reserved its right under Process & Industrial
Developments to raise New York Convention defenses after the
immunity issues were finally resolved.
The district court denied India’s motion to dismiss and
confirmed the award. First, the court held that forum non
conveniens is unavailable in proceedings to confirm
international arbitral awards. Deutsche Telekom AG v.
Republic of India, No. 21-cv-1070, 2024 WL 1299344, at *2
(D.D.C. Mar. 27, 2024). Next, it concluded that India’s
argument that the dispute involved no investor or investment
covered by the BIT implicated the arbitration agreement’s
scope, not its existence, and thus did not bear on jurisdiction
under the FSIA. Id. at *3. The court then rejected that
argument as a merits defense under the New York Convention.
It reasoned that Germany and India had agreed to let the
arbitrators decide questions regarding the scope of the
arbitration agreement, thus foreclosing any judicial review on
those questions. Id. at *4. Finally, the court held that
because India’s investor and investment arguments were not
colorable as immunity defenses, India had forfeited any other
merits defenses by briefing them. Id.
On appeal, India challenges each of these rulings. We
begin with the denial of its motion to dismiss. Then, we
address the decision to confirm the award.
II
The district court correctly rejected India’s arguments for
dismissal based on immunity and forum non conveniens.
A
The court correctly held that the FSIA’s arbitration
exception to immunity applies in this case. As explained
8
above, the exception requires (1) an arbitration agreement,
(2) an arbitral award, and (3) a treaty potentially governing
confirmation. See 28 U.S.C. § 1605(a)(6); NextEra Energy,
112 F.4th at 1100. Deutsche Telekom pointed the district
court to (1) the arbitration clause in the BIT, (2) the Swiss
arbitral award, and (3) the New York Convention. This easily
satisfied its burden of production regarding the arbitration
exception. See id.; Chevron, 795 F.3d at 204 & n.2.
To rebut this showing, India reiterates its contentions that
the dispute here involved no investor or investment covered by
the BIT—no covered investor because Deutsche Telekom
invested in Antrix through a Singaporean subsidiary, and no
covered investment because its activities (or those of the
subsidiary) involved only preparations to make an investment.
Our precedent squarely treats arguments like these as merits
defenses under the New York Convention, which do not
deprive the district court of jurisdiction under the FSIA’s
arbitration exception. For example, in Stileks, we classified as
non-jurisdictional an argument that the party seeking
confirmation was not an “investor” protected by the governing
treaty and arbitration clause because it had acted through a
subsidiary company in a non-signatory country. See 985 F.3d
at 878. Likewise, in Chevron, we classified as non-
jurisdictional an argument that the party seeking confirmation
had not made an “investment” covered by the governing BIT.
See 795 F.3d at 205–06. These decisions do not speak to the
merits of India’s arguments regarding whether this dispute
involves investors and investments protected by its treaty with
Germany. They do, however, foreclose any contention that
these arguments bear on subject-matter jurisdiction or the
applicability of the FSIA’s arbitration exception.
9
B
The district court also correctly refused to dismiss this case
on forum non conveniens grounds. This Court repeatedly has
rejected application of that doctrine in proceedings to confirm
international awards, where the whole point is to enforce
awards against assets in jurisdictions other than where the
underlying dispute arose. See, e.g., Tatneft v. Ukraine, 21
F.4th 829, 840 (D.C. Cir. 2021); TMR Energy Ltd. v. State
Prop. Fund of Ukr., 411 F.3d 296, 303–04 (D.C. Cir. 2005).
India responds that dismissal is required under Article
9(2)(b)(v) of the BIT, which states that an arbitral award “shall
be enforced in accordance with national laws of the
Contracting Party where the investment has been made.” J.A.
177. India construes this provision to mean that for an alleged
breach of the investment treaty that occurred in India,
enforcement may occur only in India. We disagree. As
explained more fully below, Article 9(2)(b)(v) may bear on
choice-of-law questions regarding enforcement. But nothing
in that provision limits enforcement actions to the territory of
the offending sovereign.2
2
In this Court, India also briefly contends that the district court
should have dismissed the confirmation action because India lacks
sufficient contacts with the United States to support the exercise of
personal jurisdiction. This argument is riddled with fatal problems.
First, India failed to raise it below, and personal-jurisdiction
arguments are subject to forfeiture. See Ins. Corp. of Ir., Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 703–04 (1982).
Second, the Supreme Court recently has held that neither the FSIA
nor the Fifth Amendment requires a defendant to have minimum
contacts with the United States. See Fuld v. Palestine Liberation
Org., 606 U.S. 1, 16 (2025) (Fifth Amendment); CC/Devas
(Mauritius Ltd.), 145 S. Ct. at 1579 (FSIA). Third, this Court has
held that foreign sovereigns are entitled to no Fifth Amendment
10
III
In our view, the district court erred in granting the motion
to confirm the award without further considering the merits
defenses that India seeks to pursue.
A
After construing India’s investor and investment
arguments as merits defenses, the district court proceeded to
foreclose them. It concluded that the BIT had delegated to
arbitrators the exclusive authority to decide if the relevant
dispute falls within the scope of the BIT’s arbitration provision.
Deutsche Telekom, 2024 WL 1299344, at *4. On that
understanding, the court deferred to the arbitrators’ conclusion
that the dispute here involves a covered investor and
investment, refusing to consider those questions as
enforcement defenses under the New York Convention. See
id. India contends that the district court erred in foreclosing
those defenses. Deutsche Telekom defends the district court’s
reasoning and seeks affirmance on the alternative ground that
courts in Switzerland, Germany, and Singapore have also
resolved the investor and investment questions against India.
1
Arbitration is a matter of contract, so the parties control
the scope of any arbitration agreement. They may vest
arbitrators with the power to conclusively resolve questions
about whether the arbitration agreement extends to the dispute
at issue—i.e., whether that dispute is arbitrable. See, e.g.,
Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63,
protections regardless. Price v. Socialist People’s Libyan Arab
Jamahiriya, 294 F.3d 82, 95–100 (D.C. Cir. 2002).
11
67–68 (2019). However, “courts presume that the parties
intend courts, not arbitrators, to decide what [are] called
disputes about ‘arbitrability.’” BG Grp., 572 U.S. at 34. So,
the parties must speak “clearly and unmistakably” to overcome
this presumption and authorize arbitrators to conclusively
resolve questions about the scope of the arbitration agreement.
Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002)
(cleaned up). In assessing that question, courts apply ordinary
principles of contract and treaty interpretation. See First
Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995); BG
Grp., 572 U.S. at 37. Those principles operate against the
backdrop of domestic and international law. See, e.g., Lozano
v. Montoya Alvarez, 572 U.S. 1, 11–13 (2014). And that
triggers a second clear-statement rule: Parties must speak
clearly to displace the backdrop. See GE Energy Power
Conversion Fr. SAS, Corp. v. Outokumpu Stainless USA, LLC,
590 U.S. 432, 440–41 (2020).
To find the necessary clear and unmistakable contract
language, Deutsche Telekom points to the BIT’s express
incorporation of UNCITRAL arbitration rules, which provide
that the “arbitral tribunal shall have the power to rule on
objections that it has no jurisdiction.” UNCITRAL
Arbitration Rules art. 21.1 (1976). We have twice held that a
treaty’s express incorporation of these rules in its arbitration
agreement supplied the necessary “clear and unmistakable”
language to empower the tribunal to conclusively resolve
questions about the scope of the agreement. See Stileks, 985
F.3d at 878–79; Chevron, 795 F.3d at 207–08. But
nonetheless, the ultimate touchstone is the parties’ intent, and
“context matters” in determining it. DDK Hotels, LLC v.
Williams-Sonoma, Inc., 6 F.4th 308, 318 (2d Cir. 2021). So,
if an “arbitration agreement is narrow[], vague, or contains
exclusionary language suggesting that the parties consented to
arbitrate only a limited subset of disputes, incorporation of
12
rules that empower an arbitrator to decide issues of
arbitrability, standing alone, does not suffice to establish the
requisite clear and unmistakable inference or intent to arbitrate
arbitrability.” Id. at 319.
Here, several considerations cut against treating the
incorporation of UNCITRAL rules as dispositive. For one, it
appears that German and Indian law always permit courts to
review arbitrability, even when arbitrators have opined on the
issue themselves. See BGH, July 24, 2014, III ZB 83/13, at 7,
juris (Ger.), https://perma.cc/23BV-N8TX (“It is true that in
arbitration proceedings the arbitral tribunal itself first decides
on its jurisdiction …. However, the state court has the last
word.”); Chloro Controls (India) Priv. Ltd. v. Severn Trent
Water Purification, (2013) 1 SCC 641, ¶ 129 (India) (“The
arbitrators are to be not the sole judge but first judge, of their
jurisdiction.”). Because the BIT was “drafted against the
backdrop” of this domestic law, it would be “unnatural to read”
its arbitration provisions as displacing that law. GE Energy,
590 U.S. at 440.
Moreover, the BIT expressly incorporates background
principles of German and Indian law in confirmation
proceedings. As noted above, Article 9(2)(b)(v) states that an
arbitral award “shall be enforced in accordance with national
laws of the [country] where the investment has been made.”
J.A. 177. Here, that country was India, and its law sharply
distinguishes between authorizing arbitrators to consider
arbitrability on the front end and foreclosing courts from doing
so on the back end. That view gives meaningful effect to the
UNCITRAL rules, which by their terms merely authorize the
arbitral tribunal to consider its own jurisdiction. And it
appears more consistent with the international understanding
of what are generally referred to as “competence-competence
clauses.” See Blanton v. Domino’s Pizza Franchising LLC,
13
962 F.3d 842, 849 (6th Cir. 2020) (“And there’s reason to think
that these clauses—when first added to the rules of arbitral
institutions almost a century ago—were not meant to give
arbitrators the exclusive authority to decide their jurisdiction.
They simply confirmed that arbitrators could address their
jurisdiction.” (citing Hulbert, Institutional Rules and Arbitral
Jurisdiction: When Party Intent Is Not “Clear and
Unmistakable,” 17 Am. Rev. Int’l Arb. 545, 551–63 (2006))).
We emphasize the narrowness of our analysis. We do not
retreat from the holdings in Chevron and Stileks that express
incorporation of the UNCITRAL rules can suffice to establish
a clear and unmistakable delegation to arbitrators to
conclusively resolve disputes about arbitrability. But unlike
in Stileks or Chevron, we are confronted here with evidence
that cuts against an intent to delegate arbitrability
exclusively—namely, strong background principles of German
and Indian law and a treaty clause expressly invoking these
countries’ award-confirmation laws. Under these
circumstances, we see no clear and unmistakable intent to bar
courts from considering arbitrability defenses that the New
York Convention expressly provides for in the specific context
of enforcement.
For these reasons, the district court erred in concluding
that the BIT delegated to arbitrators the exclusive and
unreviewable authority to make arbitrability determinations.
The arbitral decision rejecting India’s argument that this
dispute involves no investor or investment covered by the BIT
does not bar India from raising that argument as a merits
defense under Article V.1(c) of the New York Convention.
2
Deutsche Telekom asserts issue preclusion as an
alternative ground for affirmance on this point. As it notes,
14
courts in Switzerland, Germany, and Singapore have rejected
India’s argument that the dispute involved no covered investor
or investment. Deutsche Telekom is also correct that United
States courts often give preclusive effect to foreign judgments
as a matter of international comity. See, e.g., Hilton v. Guyot,
159 U.S. 113, 163–67 (1895); Donnelly v. FAA, 411 F.3d 267,
270–71 (D.C. Cir. 2005). And such preclusive effect might
extend to foreign judgments confirming arbitral awards. See
Restatement (Third) of U.S. Law of Int’l Com. & Inv.-State
Arb. § 2.11.
We decline to consider this preclusion argument here.
The district court did not reach that question, and the parties
did not substantially brief it here. So, as we recently did in
Hulley Enterprises, we leave the question of international issue
preclusion open for the district court to consider in the first
instance on remand. See 149 F.4th at 692.
B
Beyond the question of covered investors and investments,
the district court also foreclosed India from raising any other
merits defenses under the New York Convention. These
include possible defenses that a national-security exception in
the BIT precluded arbitration here and that the Devas-Antrix
agreement was procured by fraud. Under Process &
Industrial Developments, a foreign sovereign may raise and
appeal colorable immunity defenses before it can be forced to
defend on the merits. See 962 F.3d at 584–86. The district
court held that India’s arguments about covered investors and
investments were not colorable as immunity defenses. So, it
deemed them to be merits defenses, reasoned that India had no
right to sequentially raise such defenses, and held that India had
therefore forfeited the other merits defenses. Deutsche
Telekom, 2024 WL 1299344, at *4. We conclude that the
15
defenses raised were colorable as immunity defenses, which
India could have frontloaded without suffering any forfeiture.
Deutsche Telekom urges that India’s investor and
investment arguments were not colorable as immunity defenses
because Chevron and Stileks had already foreclosed them.
But Process & Industrial Developments makes clear that an
immunity defense may sometimes be colorable even in the face
of adverse precedent. For one thing, we derived the
colorability requirement from Bell v. Hood, 327 U.S. 678
(1946), which held that some claims are “too insubstantial” on
the merits even to support federal-question jurisdiction. See
Process & Indus. Devs., 962 F.3d at 583. That formulation
suggests only a modest colorability requirement. Moreover,
we found colorable for immunity purposes an argument that the
arbitration exception did not apply to an arbitral award that
another court had already vacated. See id. at 580–84. Yet
that argument was foreclosed by an earlier precedent, as we
later explained in definitively rejecting the asserted immunity.
See Process & Indus. Devs. Ltd. v. Federal Republic of
Nigeria, 27 F.4th 771, 776 (D.C. Cir. 2022) (citing Diag
Human, S.E. v. Czech Republic–Ministry of Health, 824 F.3d
131, 137–38 (D.C. Cir. 2016)).
Furthermore, there are good reasons for keeping the
colorability requirement modest. For one thing, litigants
routinely and legitimately assert aggressive distinctions of
seemingly binding precedent, so a foreign sovereign should not
forfeit its right to a threshold immunity determination simply
by raising difficult immunity arguments that courts later reject
as foreclosed by precedent. For another, even if some
precedent does clearly foreclose an asserted immunity, the
foreign sovereign still might have a colorable basis for seeking
further review by way of en banc or certiorari. In this case,
the line our immunity precedents have drawn—between
16
cognizable challenges to the existence of an arbitration
agreement and non-cognizable claims about its scope—is
neither self-evidently correct in principle nor obvious in its
application to specific cases. Indeed, it is presently the subject
of a pending petition for certiorari supported by four European
sovereigns and the European Commission itself. See Petition
for Writ of Certiorari, Kingdom of Spain v. Blasket Renewables
Invs. LLC, No. 24-1130 (U.S. May 1, 2025) (seeking review of
NextEra, 112 F.4th 1088). Sometimes, of course, precedent
will make a claim “wholly insubstantial and frivolous,” Bell,
327 U.S. at 682–83, and thus not even colorable for immunity
purposes. In our view, the immunity arguments raised here by
India easily cleared that modest hurdle.
Because the immunity arguments here were colorable as
such, India did not forfeit its right to raise merits defenses after
the immunity question was finally resolved against it. We
decline Deutsche Telekom’s invitation to nonetheless affirm
because India’s remaining merits defenses are (1) precluded by
foreign courts’ judgments, (2) forfeited because India failed to
raise them in arbitration, or (3) otherwise meritless. We
express no view on these contentions, which remain open for
the district court to consider in the first instance on remand.
IV
We vacate the district court’s judgment and remand for
further proceedings consistent with this opinion.
So ordered.