Does ratification of the New York Convention (NYC), in and of itself, amount to a waiver of state immunity? In CC/Devas (Mauritius) Ltd & Ors v Republic of India [2025] EWHC 964 (Comm), a decision I have previously written about, Sir William Blair held that it did not. The Court of Appeal has now upheld that decision in CC/Devas (Mauritius) Ltd & Ors v The Republic of India [2026] EWCA Civ 797. The lead judgment was given by Phillips LJ, whose judgment in Infrastructure Services Luxembourg SARL & Anor v The Kingdom of Spain [2024] EWCA Civ 1257 had been relied on by the appellants as supporting their waiver argument. While perhaps unsurprising, the judgment buys India yet more time in these prolonged and “labyrinthine” proceedings.
The essential facts
The first to third claimants (henceforth referred to simply as the “claimants”), Mauritian companies, invested in an Indian company, Devas. Devas entered into a contract with Antrix, an Indian company wholly owned by the Indian Government, for the lease of part of India’s S-Band spectrum on two satellites (the Devas Contract). In 2011, India decided to terminate the project and annul the Devas Contract because it considered that the S-Band spectrum should be preserved for national purposes. Antrix terminated the contract, prompting the claimants to commence arbitration proceedings alleging breach of the bilateral investment treaty between India and Mauritius.
A tribunal of the Permanent Court of Arbitration rejected India’s jurisdictional objection that the Devas Contract was not a qualifying investment. However, it accepted it lacked jurisdiction in so far as India’s decision to annul the Devas Contract was directed to the protection of its essential security interests, deciding that this accounted for 60% of the annulment decision. On the merits, the Tribunal decided that India had breached its obligation under the BIT to accord fair and equitable treatment to the claimants. The claimants sought to enforce the awards in various jurisdictions including in England. In response, India asserted sovereign immunity.
The key argument
Among other things, the claimants relied on Art. III NYC, which provides: “Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles.” They argued that, by ratifying the NYC, India had submitted to the adjudicative jurisdiction of the English court by prior written agreement within the meaning of s.2(2) of the State Immunity Act 1978 (SIA).
In support, the claimants relied on the Supreme Court’s decision in Kingdom of Spain v Infrastructure Services Luxembourg S.A.R.L. & Anor [2026] UKSC 9 (Infrastructure). They pointed to the similarity between Art. III NYC and Art.54(1) of the ICSID Convention, noting that in Infrastructure the Supreme Court held that Art.54(1) waived state immunity and amounted to submission to the adjudicative jurisdiction of the UK courts within s.2(2) SIA.
The Decision
Phillips LJ referred to the Vienna Convention on the Law of Treaties (VCLT), in particular Arts.31 and 32, which codify customary international law principles of treaty interpretation. As summarised in Infrastructure:
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- 31 VCLT requires a treaty to be interpreted in good faith, in accordance with the ordinary meaning of its terms, in their context and in light of the treaty’s object and purpose.
- 32 permits recourse to supplementary materials only for limited purposes: to confirm the ordinary meaning, or to determine the meaning where Art.31 leaves it ambiguous or obscure, or produces a manifestly absurd or unreasonable result.
- 17(1) VCLT provides (subject to reservations) that the consent of a State to be bound by part of a treaty is effective only if the treaty so permits or the other contracting States so agree.
- An international treaty or convention is intended, so far as possible, to have a uniform meaning across all contracting states, so regard should be had to how courts in other jurisdictions have interpreted it.
Although Infrastructure did not address Art. III NYC, Phillips LJ noted the Supreme Court’s observation that Art.54 ICSID forms part of a self-contained or closed scheme for producing binding awards, which a domestic court may not refuse to enforce even on grounds of national or international public policy, “differ[ing] significantly in that regard from the [NYC]”.
Phillips LJ identified a critical distinction between Art.54(1) ICSID and Art. III NYC: the latter is qualified by the words “in accordance with the rules of procedure of the territory where the award is relied upon”. It was common ground that, as a matter of both international law and English domestic law, state immunity is a rule of procedure. Phillips LJ therefore had “no hesitation” in concluding that “rules of procedure” in Art. III NYC encompasses state immunity. Accordingly, and consistently with the decision below and the High Court of Australia’s decision on the same issue, Art. III preserves state immunity by its own terms.
Takeaway
India’s success on this appeal buys it yet more time. As of September 2024, the outstanding value of the Awards exceeded EUR 195m. Interest will be accruing, but the claimants’ continuing enforcement difficulties, coupled with escalating legal costs and delay, may affect the parties’ negotiating positions. More broadly, the decision is a reminder that, in high-value enforcement disputes against states, parties will often take every arguable point: even an issue that looks technical can materially affect the overall financial outcome.
