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- UNITED STATES 3 October 2025 Deutsche Telekom
UNITED STATES 3 October 2025 Deutsche Telekom
United States Court of Appeals, District of Columbia Circuit, 3 October 2025, No. 24-7081
(Republic of India v. Deutsche Telekom, A.G.)
UNITED STATES 3 October 2025 Deutsche Telekom
The district court (USA 2025-4) had granted confirmation of a Swiss award rendered under the Germany-India BIT. The Court of Appeals held that the lower court erred in declining to consider India’s defenses under the New York Convention as to the scope of the agreement to arbitrate. While the parties may delegate to arbitrators the exclusive authority to decide whether a dispute falls within the scope of their arbitration agreement, they must do so “clearly and unmistakably”. The Court stood by its opinion that the referral in a BIT to the UNCITRAL Rules, which provide that the arbitral tribunal shall have the power to rule on objections that it has no jurisdiction, supplied in principle the necessary “clear and unmistakable” language, but concluded that in the present case there were strong indications that the parties did not intend to delegate arbitrability exclusively to the arbitrators: namely, strong background principles of German and Indian law and a BIT clause expressly invoking these countries’ award-confirmation laws. The Court could see no clear and unmistakable intent in this case to bar courts from considering the defenses provided by the Convention with respect to the scope of the agreement to arbitrate, and held that the district court should have examined them before deciding to confirm the award.
The court discusses the principle of competence-competence, including whether the parties “intended to have arbitrability decided by an arbitrator”, and the separability of the arbitration agreement from the main contract.