THE AUTHORS:
Jyoti Singh, Advocate in Delhi
Sraddha Kedia, Dispute Resolution Lawyer in India and New York
Introduction: From Procedural Error to International Wrong?
The long-running Antrix–Devas dispute offers a revealing window into the interaction between domestic procedural law and international responsibility. On April 9, 2026, the Delhi High Court (“DHC”) stayed a special Central Bureau of Investigation (“CBI”) court’s decision to return the chargesheet filed nearly a decade earlier. In its March 11, 2026 order, the special court concluded that it lacked territorial jurisdiction and that the matter had proceeded before the wrong forum for years.
The CBI challenged the order, arguing that cognisance had already been taken and the case was at the stage of arguments on charge when the jurisdictional plea was entertained. It further contended that crucial Cabinet and Department of Space decisions, including approvals by the Prime Minister’s Office, were finalised in Delhi. That challenge was filed after the March 11, 2026 order, and it was on that challenge that the DHC granted the stay of April 9, 2026. The petition remains pending at the time of writing, with the result that the question of the competent forum is still undetermined a decade after the charge sheet was first filed.
This fundamental jurisdictional question, contested even after eight years of litigation, exemplifies the systemic dysfunction addressed in this contribution. Against this backdrop, this short intervention argues that persistent jurisdictional misallocation may engage international responsibility, particularly through the doctrines of denial of justice and fair and equitable treatment (“FET”) in investment treaty law.
The argument is not that criminal proceedings themselves give rise to treaty obligations, but that prolonged jurisdictional uncertainty may become relevant to compliance with international investment obligations.
Conceptualising Jurisdictional Misallocation as State Conduct
“Jurisdictional misallocation” refers to proceedings continuing before the wrong forum because state institutions fail to identify the proper court in a timely manner. An important distinction must be drawn at the outset: not every instance of jurisdictional misallocation raises issues of international concern, nor are jurisdictional disputes unusual in complex judicial systems. The concern instead targets prolonged jurisdictional misdirection: situations in which state organs cannot agree on the competent forum, and uncertainty persists for years rather than months.
The Devas dispute illustrates this concern. Here, the charge sheet was filed in 2016, cognisance was taken in 2017, and yet the question of territorial jurisdiction remained unresolved until 2026. What matters is not just the timeline of the case but the fact that the jurisdictional objection was only addressed after the case had reached the stage of arguments on charge, by which time years of proceedings had already occurred before a forum whose competence remained unconfirmed. If multiple state organs allow proceedings to continue before a forum whose competence remains unresolved for a prolonged period, the resulting failure may be assessed as a failure of the State’s judicial system rather than an isolated institutional error.
Denial of Justice: Limits of the Existing Framework
The doctrine of denial of justice has long served as the principal mechanism through which international law addresses failures of domestic adjudication. International tribunals have generally emphasised that the judicial system as a whole must have failed before a denial of justice can be found (See, Chevron and TextPet v. Ecuador (II) [PCA Case No. 2009-23, Second Partial Award on Track II, 30 August 2018, in which the tribunal assessed the alleged denial of justice by reference to the Ecuadorian judicial system as a whole, rather than by reference to any single decision, and treated the exhaustion of reasonably available domestic remedies as a condition of the claim).
The procedural history of the case demonstrates why this distinction matters. In returning the charge sheet in March 2026, the special CBI court acknowledged that “several acts which led to the commission of the aforesaid offences, had also taken place in New Delhi” even as it concluded that the “main offences” occurred in Bengaluru (See, CBI v. K.R.S. Murthi & Ors., order of the Special Judge, CBI, Rouse Avenue Courts, New Delhi, dated March 11, 2026). The difficulty is not that the Indian courts disagreed on territorial jurisdiction, but that the objection remained unaddressed until an advanced stage of criminal proceedings, after years of adjudication before a forum whose competence was later questioned.
In exceptional circumstances, prolonged jurisdictional misallocation may contribute to a finding of denial of justice. The concern is whether the judicial system provides meaningful adjudication within a reasonable period (See, Petrobart v. Kyrgyz Republic (II) [SCC Case No. 126/2003, Award, 29 March 2005, where executive intervention in the enforcement of a domestic judgment deprived the investor of an effective judicial process and breached the fair and equitable treatment standard]). A state that permits protracted uncertainty over an incompetent forum, without timely institutional intervention, risks failing to provide an effective system of justice, even where proceedings appear procedurally regular. The argument is not about ordinary jurisdictional error, but about situations in which prolonged inability to resolve forum uncertainty turns procedural error into systemic dysfunction.
State Responsibility and Institutional Coherence
Under the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts (2001), the conduct of judicial organs is attributable to the state regardless of whether the organ exercises legislative, executive, or judicial functions. Difficulty arises where jurisdictional fragmentation results from conflicting decisions across multiple State institutions.
For the purposes of international responsibility, the State is treated as a single legal entity, irrespective of the distribution of powers among its domestic organs. Domestic systems are inherently fragmented across courts, tribunals, and administrative agencies, operating under distinct statutory mandates. When these institutions produce conflicting jurisdictional determinations, the resulting incoherence is a product of the state’s institutional design rather than the conduct of any single organ. Internal fragmentation does not, by itself, engage state responsibility. The question is whether the State’s investigative, prosecutorial, and judicial organs provide sufficient mechanisms to settle jurisdiction prior to substantial proceedings. In the present case, the CBI initiated the proceedings in Delhi, where the special court took cognizance of the case, and then, after several years, the question of jurisdiction was raised successfully, illustrating institutional failure (See, Petrobart v. Kyrgyz Republic (I) [SCC Case No. 126/2003, Award, 29 March 2005, where the conduct of the executive and of the court was assessed together, as that of a single State, in finding that the investor had been denied an effective judicial process]).
The concept of “institutional incoherence,” discussed here, describes situations in which overlapping or poorly coordinated domestic bodies produce contradictory jurisdictional outcomes. The Devas proceedings are a clear example. The special court concluded that the Prevention of Corruption Act requires jurisdiction to be determined by the “place of commission of the main offence,” citing the Supreme Court’s Braj Bhushan Prasad ruling. Yet the CBI argued that key meetings and Cabinet-level approvals took place in Delhi (See, CBI v. K.R.S. Murthi & Ors., order of the Special Judge, CBI, Rouse Avenue Courts, New Delhi, dated March 11, 2026; the ruling relied on by the special court is CBI, A.H.D., Patna v. Braj Bhushan Prasad, (2001) 9 SCC 432).
Institutional incoherence is not merely an administrative inconvenience. When it denies a foreign investor access to an effective forum for dispute resolution, it may amount to a failure of the State’s legal system, capable of engaging international responsibility.
Implications for Investment Treaty Obligations
The issue acquires particular salience in investment treaty law. Most bilateral investment treaties and the Energy Charter Treaty (1994) include obligations of FET and due process protections for foreign investors. Tribunals have interpreted the FET standard as encompassing legal certainty, transparency, procedural propriety, and legitimate expectations, as reflected in cases such as Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States and Waste Management v. United Mexican States (II).
A party having to litigate for years prior to realizing the forum lacks jurisdiction faces more than merely procedural inconvenience. Such prejudice would also consist of the cost of defense in the wrong forum, prolonged legal uncertainty, repetition of proceedings in case of their commencement in a different forum, and the absence of resolution of the substance of the dispute even now (See, CMS v. Argentina [ICSID Case No. ARB/01/8, Award, 12 May 2005, where the tribunal held that a stable and predictable legal environment is an essential element of fair and equitable treatment]). None of these can be remedied through jurisdictional correction. This is why the Antrix-Devas case matters: not because the criminal cases fall within the scope of treaty protection, but because misallocation of jurisdiction for too long could threaten the legal certainty and procedural fairness mandated under investment treaties.
Not every criminal case involving a foreign investor engages treaty obligations. The issue arises only where the State’s conduct forms part of its treatment of the investment and prolonged jurisdictional misallocation undermines legal certainty protected by FET. Such delay may frustrate the expectation, shared by domestic and foreign litigants alike, of an effective judicial process (See, Thunderbird v. Mexico [NAFTA/UNCITRAL, Award, 26 January 2006, para. 147, recognising the protection of an investor’s legitimate expectations as part of the minimum standard of treatment, although the tribunal found that threshold unmet on the facts before it]).
It bears emphasis that no single act in the chain of jurisdictional misallocation needs independently cross the threshold of denial of justice. Rather, it is the cumulative effect of the State’s conduct that may amount to a breach of the FET standard (Waste Management v. Mexico (II) [ICSID Case No. ARB(AF)/00/3, Award, 30 April 2004, para. 98, where the tribunal held that the minimum standard is infringed by conduct involving a lack of due process leading to an outcome which offends judicial propriety]). Jurisdictional misallocation may, in exceptional cases, contribute to a finding of “denial of justice”. By “exceptional cases,” this analysis refers to situations in which jurisdictional uncertainty persists for years, substantial proceedings occur before a court later found to lack jurisdiction, and the resulting procedural prejudice cannot be effectively cured by a subsequent correction. The state does not refuse to hear the case or render a manifestly unjust decision. Instead, it proves systemically unable to hear the case in the correct forum, producing delay, expense, and the absence of an effective remedy.
Revisiting Access to a Competent Forum
The foregoing analysis suggests that existing principles of due process and effective judicial protection may require closer attention to the importance of access to a competent forum.
In Golder v. United Kingdom, the European Court of Human Rights recognised that the right to a fair trial under Article 6 of the European Convention on Human Rights implies a right of access to a court.
Access to justice becomes ineffective where the court lacks jurisdiction. Meaningful access therefore requires a competent forum within a reasonable time. In practical terms, the proposed principle would require that litigants be brought before a forum with proper jurisdiction within a reasonable time (See, Kudla v. Poland [App. No. 30210/96, Grand Chamber Judgment, 26 October 2000, where the Court found criminal proceedings lasting over nine years to be incompatible with the reasonable time guarantee in Article 6(1) and held that Article 13 requires an effective domestic remedy for the excessive length of proceedings]). This approach, however, would require mechanisms capable of resolving jurisdictional disputes promptly.
It is important to acknowledge the limits of this proposal. The emergence of such a principle is not a substitute for strengthening domestic judicial systems. The most effective protection against jurisdictional misallocation lies in well-designed domestic institutions with clearly delineated mandates and effective mechanisms to resolve jurisdictional conflicts.
Conclusion
The Antrix–Devas saga shows how long-running uncertainty over jurisdiction can become more than a domestic procedural issue and may raise questions of international responsibility. When state institutions take years to identify the correct forum, the result may amount to a procedural or “functional” form of denial of justice.
By describing such failures as “institutional incoherence,” this analysis highlights a type of procedural harm that traditional denial of justice doctrine does not fully address. This matters in investment treaty law, as prolonged jurisdictional misallocation undermines legal certainty, procedural fairness, and effective access to justice.
Jurisdictional controversies do not always lead to issues of international responsibility. Only prolonged misallocation of jurisdiction resulting from institutional failure and causing procedural prejudice to a protected foreign investor or investment may engage international responsibility.
ABOUT THE AUTHORS
Jyoti Singh is an advocate based in Delhi and has worked with the Government of India as a consultant on international treaty arbitration disputes. She is also a Visiting Faculty at the Indian Society of International Law and has multiple publications to her credit on reputed platforms.
Sraddha Kedia is a dispute resolution lawyer, qualified to practice in India and New York. Sraddha is currently practicing in the Supreme Court of India and has a keen interest in Public International Law, International Arbitration and Cross-Border Disputes. She has previously worked with Tier-1 law firms in India and completed a short stint as a trainee at an international law firm in New York, specializing in International Litigation & Arbitration.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
