English Court of Appeal confirms that ratification of the New York Convention is not a waiver of state immunity

In a landmark decision for the Republic of India, the Court of Appeal has held in CC/Devas (Mauritius) Ltd & Others v The Republic of India [2026] EWCA Civ 797 that India did not waive its state immunity in relation to the enforcement of two bilateral investment treaty awards solely by reason of its ratification of the New York Convention. White & Case represents the Republic of India in these proceedings.¹

Background

As we previously reported here, in 2021, enforcement proceedings were commenced against the Republic of India ("India") before the Commercial Court in London, seeking to enforce two arbitration awards (together, the "Awards") which were purportedly made under the 1998 India-Mauritius BIT. India has claimed state immunity under the UK State Immunity Act, 1978 ("SIA").

The decision before the Court of Appeal concerned a question that the Court was asked to determine with respect to s.2(2) of the SIA – i.e. whether India submitted to the adjudicative jurisdiction of the English courts by its ratification of the New York Convention 1958 ("NYC"), with such ratification constituting a "prior written agreement" for the purposes of s.2(2) of the SIA.

This question had already been decided at first instance in India's favour by Sir William Blair ("Commercial Court Decision"), who held that India's ratification of the NYC did not, by itself, constitute a submission to the adjudicative jurisdiction of the English courts. The Commercial Court Decision was summarised in our report here.

The Appellants before the Court of Appeal argued inter alia that by the opening clause of Art. III of the NYC, India and the United Kingdom had agreed that the United Kingdom has adjudicative jurisdiction to recognise and enforce the Awards, amounting to an express and sufficiently clear submission to the jurisdiction for the purposes of s.2(2) of the SIA by India. It was further argued that the reference in Art. III to "in accordance with the rules of procedure" does not negate that agreement to submit to the jurisdiction, being a reference only to those rules applied for the purpose of giving effect to the obligation to recognise and enforce, and therefore not to the general rule that a state is immune from the jurisdiction of another state.

There is a separate question in the ongoing enforcement proceedings as to whether the exception to immunity in s.9 of the SIA applies (s.9 provides that where a State has agreed in writing to submit a dispute to arbitration, the State is not immune with respect to proceedings in the courts of the United Kingdom which relate to the arbitration). The Court was not asked to determine this question at this time.

Judgment

The Court of Appeal's decision was set out by Lord Justice Phillips (with whom Lord Justice Lewison and Lord Justice Newey agreed), who held that "rules of procedure" in Art. III of the NYC encompasses state immunity where that is a rule of procedure in the territory in question, as it is for this jurisdiction (at [45]). Article III therefore preserves state immunity by its own terms. Additionally:

• The Court of Appeal found (at [40]) that interpretation of a treaty is a holistic exercise. There is no justification for treating the opening clause of Art. III as predominant and reading down the subsequent reference to "in accordance with the rules of procedure" to fit in with what would otherwise be the interpretation of the opening clause. The proper task is to read the two clauses together. The Court found that the "only workable definition" of "rule of procedure" is one that includes any rule – whether technically procedural or substantive – that bars a claim for reasons unrelated to its legal merits (at [39]). Accordingly, "rules of procedure" under Art. III will encompass state immunity, insofar as it operates as such in the territory in question – as it does in this jurisdiction (at [45]).
• The Court confirmed that the Supreme Court's decision in respect of the enforcement of ICSID awards in Infrastructure Services Luxembourg SARL v The Kingdom of Spain [2026] UKSC 9 (concerning Art. 54(1) of the ICSID Convention) cannot simply be read across to apply to Art. III of the NYC. As the Court noted, "both the wording and context of Art. III differ in important respects from that of Article 54(1) of ICSID" (at [30]). If state immunity were excluded from "rules of procedure" under the NYC, then the ratification of the NYC would by itself result in a waiver of both adjudicative and execution immunity – a waiver far wider than that contemplated by the ICSID Convention, which expressly preserves immunity from execution (at [36]). Additionally, the Court held that the object and purpose of the NYC is to facilitate and encourage international arbitration by promoting recognition and enforcement by Contracting States of any and all foreign arbitral awards, regardless of the parties. In contrast, the object and purpose of ICSID Convention is to promote and encourage investment in contracting states to that convention by mutually recognising and enforcing awards to which a contracting state is necessarily a party (at [30]).
• The Court also noted that its conclusion accorded with the High Court of Australia's decision in CCDM Holdings LLC & Ors v The Republic of India [2026] HCA 9 and was also confirmed by supplementary means of interpretation such as the travaux préparatoires of the NYC (at [42]-[43] and [46]-[48]).

Separately, Lewison LJ added a judgment highlighting inter alia that there was international consensus that state immunity is procedural, and so derogation would require clear words, and concluding that the ordinary meaning of "the rules of procedure of the territory where the award is relied upon" encompass the law of state immunity in the territory concerned (see [57]-[63]).

Significance

This judgment is significant in its confirmation of the English Court's interpretation of s.2(2) of the SIA and what constitutes a "prior written agreement", particularly in proceedings relating to the recognition and enforcement of New York Convention awards. As Phillips LJ noted "it entirely accords with common sense that states would not have agreed to waive immunity from the enforcement of awards against them where they have not agreed to arbitrate (such agreement engaging the exception in s.9 of the SIA […]), particularly without making any reference to state immunity." (at [47]).

With thanks to Subhiksh Vasudev, Camilla Lozinska-Brown and Shivali Shah for their assistance on this matter.

^{1 White & Case instructed Sudhanshu Swaroop KC of Twenty Essex.}

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