An enforcement court is not an appellate tribunal in disguise.

The latest chapter in Deutsche Telekom v. India is a useful reminder of where the line should be drawn.

The U.S. District Court for the District of Columbia has confirmed Deutsche Telekom’s approximately US$132 million investment award, rejecting India’s attempts to resist enforcement under Articles V(1)(c), V(1)(b) and V(2)(b) of the New York Convention.

India sought to recast several issues — the existence of a protected investment, indirect ownership, essential security interests and alleged illegality — as questions going to the scope of consent to arbitration. The Court was not persuaded.

In particular, the Court drew a sharp distinction between jurisdictional limits on consent and substantive defences that were already within the Tribunal’s mandate to decide. The essential security clause, for example, was treated as a substantive defence rather than a limitation on the arbitration agreement.

That distinction matters enormously at the enforcement stage. Otherwise, every losing respondent could potentially repackage a merits argument as a jurisdictional objection and invite the enforcing court to conduct what would effectively become a second arbitration.

The same discipline appears in the Court’s treatment of fraud. India relied heavily on findings of fraud concerning Devas and the underlying transaction. But the relevant question, for purposes of the BIT’s consent to arbitration, was whether Deutsche Telekom’s own investment was unlawful. The Court found no sufficient basis for making that leap.

And then there is the public policy argument. The Court acknowledged the seriousness of the findings made by the Indian courts, but emphasised that the New York Convention’s public policy exception is narrowly construed. Alleged wrongdoing by others involved in the project was not enough to establish that enforcement would reward wrongdoing attributable to the award creditor itself.

The broader lesson?

The New York Convention does not make enforcement courts passive. But neither does it turn them into appellate courts. The difficult art lies in preserving that distinction: giving Article V real work to do, without allowing enforcement proceedings to become an opportunity to relitigate what the tribunal has already decided.