Australian High Court confirms mere ratification of New York Convention insufficient to waive sovereign immunity

On 8 April 2026, the High Court of Australia handed down a unanimous decision in CCDM Holdings LLC v Republic of India [2026] HCA 9, dismissing an appeal brought by the appellants, CCDM. The Court held that India's ratification of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (New York Convention) did not, in itself, constitute a waiver of India's sovereign immunity from enforcement of arbitral awards.

Background

The underlying dispute that ultimately led to the Australian court proceedings concerned an annulled satellite contract between Devas Multimedia Private Limited (Devas) and Antrix Corporation Limited, an Indian State-owned company. Devas initiated international arbitration under the India-Mauritius Bilateral Investment Treaty (India-Mauritius BIT). The tribunal ultimately found that India had expropriated Devas' investment and breached its obligation to accord Devas and its investments fair and equitable treatment.

The tribunal issued a pair of awards (one on liability and the other on quantum), ultimately awarding Devas approximately US$111 million in damages (including interest and costs) (Devas Awards). Devas then assigned the Devas Awards to the appellants in the Australian proceedings, CCDM Holdings (CCDM) and its affiliates. CCDM sought recognition and enforcement of the Devas Awards in Australia.

In the proceedings at first instance, Jackman J of the Federal Court of Australia held that India had submitted to the jurisdiction of Australian courts by signing and ratifying the New York Convention, thereby waiving its sovereign immunity.

India appealed the Federal Court's judgment to the Full Court of the Federal Court of Australia. The Court on appeal held that India's waiver of sovereign immunity was limited by a reservation it had made when ratifying the New York Convention. That reservation provides: "the Government of India declare that they will apply the Convention […] only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the law of India." Given the original arbitration between Devas and India was a bilateral investment treaty dispute, the Full Court held that the "differences" that were resolved by the awards were "in the realm of public international law that gave international law rights to private investors", and therefore not commercial.

CCDM appealed the Full Court's decision to the High Court of Australia. However, the appeal turned exclusively on whether India's ratification of the New York Convention constituted a waiver of its foreign State immunity under section 10 of the Foreign States Immunities Act. The High Court declined to address the matter of India's commercial reservation under the Convention, leaving this point open.

The High Court's decision

The High Court rejected CCDM's arguments that ratification of the New York Convention constituted a waiver of India's sovereign immunity for the purposes of enforcement of arbitral awards before Australian courts. The Court emphasised that any waiver of immunity "must be clear and unmistakeable [and] derived from the express words of the agreement (including necessary implications from those words)."

In arriving at this conclusion, the Court made the following key findings:

1. No express waiver: The text of the New York Convention contains no express reference to State immunity, which the Court considered an "inauspicious start" for any argument that a State's ratification of the New York Convention constituted a clear and unmistakeable waiver of its foreign State immunity under Australian law.
2. Structure and context of Article III: The Court construed Article III of the New York Convention (which deals with the obligation of States to recognise arbitral awards as binding and enforce them in accordance local rules of procedure) as qualifying the obligation of contracting States to enforce arbitral awards to do so in accordance with local rules of sovereign immunity. The Court reasoned that a waiver of sovereign immunity through mere ratification of the New York Convention would render nugatory local rules of sovereign immunity where enforcement is sought.
3. State practice does not reveal a common approach to waivers of sovereign immunity: The High Court noted that current judicial authority in the United States, United Kingdom, and Canada consistently supports the position that ratification of the New York Convention is not, in and of itself, sufficient to constitute a waiver of foreign State immunity, rejecting CCDM's argument to the contrary.
4. No analogy with the ICSID regime of enforcement: The Court rejected parallels that CCDM sought to draw between sovereign immunity in the context of international arbitration under the International Centre for Settlement of Investment Disputes (ICSID) Convention and arbitral awards subject to the New York Convention. The Court's confirmation of this distinction insulates its decision from an established line of Australian (and other) jurisprudence rejecting Spain's sovereign immunity defences in proceedings seeking enforcement of ICSID awards. The Australian courts have consistently held that ratification of the ICSID Convention constitutes an express waiver of foreign State immunity for the purposes of the Foreign State Immunity Act. However, in CCDM v India, the High Court contrasted this waiver of sovereign immunity to the regime under the New York Convention, which it considered to be silent on this issue.

Implications

Australia's apex court has now authoritatively determined that ratification of the New York Convention does not, of itself, constitute a waiver of sovereign immunity. That conclusion will have important implications for the strategy of award creditors seeking to enforce arbitral awards in Australia. Since the High Court expressly declined to address the question of India's commercial reservations, it means the High Court's decision applies generally to any award against a State that is being enforced under the auspices of the New York Convention (and not only against those States who have made a commercial reservation, such as India).

Notably, the decision entrenches inconsistency in the jurisprudence of different jurisdictions with respect to sovereign immunity. In particular, the High Court's decision stands in contradiction to a string of decisions in other major jurisdictions, including Singapore, the Netherlands and Canada, all of which rejected India's claims of sovereign immunity in respect of the Devas Awards. A parallel proceeding before the English courts on the very same issue is currently pending, which may ultimately compound the lack of uniformity on the enforcement of the same Devas Awards in different jurisdictions.

In practical terms, the decision means that award creditors must procure or otherwise identify a clear waiver of sovereign immunity when seeking to enforce arbitral awards against foreign States in the Australian courts. Ratification of the New York Convention alone will not suffice.

The decision also confirms that, given a choice, investors should always opt for ICSID arbitration in preference to arbitration under the auspices of the New York Convention. This is because of the express waiver of immunity from enforcement contained in the ICSID Convention (a point which is receiving greater consensus in local courts around the world).

As always, award creditors should seek specialist legal advice when:

1. entering into commercial relationships with States or State-owned enterprises;
2. considering foreign investments in the territory of a State which has granted investment protections to foreign investors; and
3. seeking to enforce arbitral awards against sovereigns (whether in the context of investor-State or commercial disputes).

A different route to proving India's waiver of sovereign immunity?

Notably, the High Court did not (and was not asked to) consider whether India made other commitments vis-à-vis the Devas parties that could constitute a waiver of sovereign immunity.

We have previously commented on the decision of the UK Court of Appeal in General Dynamics United Kingdom v the State of Libya, in which the Court rejected Libya's claim of sovereign immunity. As we noted, the Court of Appeal found that Libya had waived sovereign immunity because it had agreed in the underlying arbitration to the application of the 1998 ICC Arbitration Rules, which obliged Libya to "carry out any Award without delay" (Article 28(6)). In making that finding, the Court of Appeal followed similar findings by the French Cour de Cassation and the US Court of Appeals (5^th Circuit), demonstrating strong support for the proposition that consenting to international arbitration under rules that require the prompt enforcement of arbitral awards constitutes a waiver of any claim to sovereign immunity.

The underlying arbitration rules applicable to the Devas Awards were the 1976 UNCITRAL Rules, which contain the very same obligation for disputing parties to "carry out the award without delay" (Article 32(2)). If the reasoning of the UK Court of Appeal were followed, this would mean that India expressly waived sovereign immunity simply by consenting to international arbitration under those rules. Given that the High Court of Australia was not tasked with considering this argument, it may still be open to award creditors seeking to enforce their awards against sovereign States in Australia under the New York Convention to convince the courts of this view. It will be interesting to see if any award creditor enforcing against India (or any other State) makes the argument in future.