English Court issues landmark decision on state immunity and enforcement

In a landmark victory for the Republic of India, the Commercial Court has held 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. The judgment was handed down by Sir William Blair on 17 April 2025 (CC/Devas et al. v The Republic of India [2025] EWHC 964 (Comm)). White & Case represents the Republic of India in these proceedings.¹

Background

In 2021, enforcement proceedings were commenced against the Republic of India ("India") before the Commercial Court in London, seeking to enforce two arbitration awards dated 25 July 2016 (the "Jurisdiction and Merits Award") and 13 October 2020 (the "Quantum Award", and 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").

This decision 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.

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 as respects 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

Delivering a landmark ruling, (CC/Devas et al. v The Republic of India [2025] EWHC 964 (Comm)), the Commercial Court agreed with India’s position that India’s ratification of the NYC, in and of itself, cannot be taken as a submission to the English court’s jurisdiction.
Key points expressed by the Court include the following:

• First, the Court noted that state immunity is one of the fundamental principles of the international legal order. To identify exceptions to that immunity which international law recognises, the English courts must look to sections 2 through 11 of the SIA.
• Second, the Court concluded that there is no indication that it was the intention of the drafters of the NYC to preclude immunity-based arguments in enforcement actions against states, and overall the commentary is to the effect that immunity-based arguments are not precluded.
• Third, the Court considered that when applying the established classification of state immunity in English and international law, the reference to "rules of procedure" in Article III of the NYC preserves state immunity in its own terms.
• Fourth, the Court held that applying the test for waiver in English law, the ratification of Art. III of the NYC is not, on its own, a waiver of state immunity by India. The Court noted that a waiver of state immunity by treaty or convention must always be express, and expressed in a clear and recognisable manner, as by an unequivocal agreement.

The 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.

With thanks to Conrad Barclay, Lottie Durham and Kit Chong Ng for their contribution to the development of this publication.

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

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