Court of Appeal confirms mere ratification of New York Convention does not waive state immunity

The UK Court of Appeal has confirmed that ratification of the New York Convention 1958 does not amount to a waiver of state immunity, maintaining England's alignment with the emerging international caselaw on this point.

The decision in CC/Devas v India arises from attempts by award creditors (the "Claimants") to enforce two arbitral awards for over EUR 195 million against India in England ("Awards").

The relevant awards were rendered in arbitration proceedings brought under the Mauritius–India bilateral investment treaty. The underlying dispute concerned investments in Devas Multimedia and the termination of arrangements with Antrix Corporation, following the Indian government’s decision to reserve S-Band satellite spectrum for national purposes.

The Claimants sought to enforce the Awards in England. India resisted enforcement, relying on a number of distinct grounds of sovereign immunity under the State Immunity Act 1978. In response, the Claimants argued that India had waived immunity by its ratification of the New York Convention.

That argument was heard as a preliminary issue and was rejected at first instance (see our update on that decision here). Permission to appeal was granted by the first instance judge.

The Issue before the Court of Appeal

The Claimants relied on Article III of the New York Convention, which requires contracting states to recognise and enforce arbitral awards “in accordance with the rules of procedure of the territory where the award is relied upon”. The Claimants argued that the obligation to enforce arbitral awards amounted to a waiver of state immunity, in particular in light of the Supreme Court’s decision in Infrastructure Services Luxembourg SARL v Kingdom of Spain [2026] UKSC 9, in which similar wording in Article 54(1) of the ICSID Convention was held to amount to a waiver of immunity.

The critical distinction between the relevant provisions of the New York and ICSID Conventions is that the obligation in Article III of the New York Convention to enforce arbitral awards is expressly qualified by the words "in accordance with the rules of procedure of the territory where the award is relied upon". These words are absent in the ICSID Convention, in which the obligation to enforce arbitral awards is wholly unqualified.

The Court of Appeal upheld the decision at first instance that the words "rules of procedure" include the rules pertaining to state immunity, and that Article III of the New York Convention therefore expressly preserves state immunity. In this regard the Court of Appeal expressly followed the recent decision of the Australian High Court in CCDM Holdings LLC & Ors v The Republic of India [2026] HCA 9, which interpreted the New York Convention in the same way (see our blog here). While it had been suggested in that case at first instance that ratification of the New York Convention waived state immunity, the English and Australian appellate courts have now both confirmed that it does not.

The Court of Appeal noted that the same conclusion regarding the New York Convention was reached by the German Federal Court of Justice in the case of SchiedsVZ 2006 44, and the US courts in Global Voice Group SA v Republic of Guinea 2025 US Dist LEXIS 28564.  

The Court was also influenced by the different context of the ICSID Convention, which deals exclusively with awards against contracting states, whereas the New York Convention provides a framework for the enforcement of arbitral awards between parties of all types. In view of that broader purpose, the Court did not consider that preserving state immunity was inconsistent with India's obligations under the New York Convention.

Comment

The judgment is the latest in a series of decisions, including Infrastructure Services, in which award creditors have sought to rely on treaty provisions to overcome state immunity. Such arguments are likely to face challenges in the English courts in the absence of clear textual support in the relevant treaty.

The case also illustrates the limited weight given by the English Court to arguments that treaties are "pro-arbitration" or "pro-enforcement" in nature. Lord Justice Lewison commented on the Claimants' arguments to this effect in a separate judgment. He accepted that the New York Convention was undoubtedly a pro-arbitration treaty, but said that this does not answer the question of whether its ratification waived state immunity. That is a matter of interpretation of the wording of the treaty.

The decision dealt with only one of a number of distinct arguments raised by each side concerning India's immunity. The English court will now consider the parties' remaining arguments and may nonetheless find that India has waived sovereign immunity on another ground in due course (as the courts have in Canada, Singapore, the Netherlands).

CC/Devas (Mauritius) Ltd & others v The Republic of India [2026] EWCA Civ 797