English Court of Appeal clarifies the limits of state immunity in the enforcement of investment treaty awards under the New York Convention

Introduction

In a recent decision, the Court of Appeal unanimously held in CC/Devas (Mauritius) Ltd & Ors v The Republic of India that a state’s ratification of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention” or the “Convention”) does not in itself constitute a submission to the adjudicative jurisdiction of the English courts for the purposes of section 2(2) of the State Immunity Act 1978 (“SIA”). Dismissing the investors’ appeal, the Court held that Article III of the New York Convention preserves the application of domestic procedural rules, including those relating to state immunity. 

The decision provides important guidance on the relationship between Article III of the Convention and the SIA and clarifies the Supreme Court’s decision in Infrastructure Services Luxembourg SARL v Kingdom of Spain (“Infrastructure”). While in Infrastructure the Supreme Court held that states party to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the “ICSID Convention”) waive adjudicative immunity by agreeing to Article 54(1), the Court of Appeal emphasised that this reasoning cannot be transposed to the New York Convention. (See our analysis of the Supreme Court’s decision in the Infrastructure case here).

Background

The dispute arose out of Mauritian investors’ shareholdings in Devas Multimedia Private Limited, an Indian telecommunications company. In 2005, Devas entered into an agreement with Antrix Corporation Limited, a company wholly owned by the Government of India, for the lease of a proportion of India’s S-band satellite spectrum to develop a nationwide communications network. 

In 2011, India’s Cabinet Committee on Security decided to terminate the Devas project on national security and strategic grounds. Antrix subsequently terminated the agreement with Devas, prompting the investors to commence arbitration proceedings against India under the India–Mauritius Bilateral Investment Treaty (the “BIT”).

In its jurisdiction and merits award, the tribunal rejected India’s principal jurisdictional objection that the relevant agreement was not a qualifying “investment” and found that India had breached its obligation to afford the claimants fair and equitable treatment under the BIT. The tribunal ultimately awarded the claimants more than €195 million in damages, together with interest and costs.

The claimants sought recognition and enforcement of the award in multiple jurisdictions, including England and Wales, where the Commercial Court granted permission to enforce the award in June 2021 pursuant to sections 101(2) and 101(3) of the Arbitration Act 1996.

India subsequently applied to set aside the enforcement order, relying on state immunity under section 1 of the SIA and arguing that the arbitration exception contained in section 9 did not apply. In addition to contesting India’s position on section 9, the claimants advanced a novel argument: that India’s ratification of the New York Convention itself constituted a prior written submission to the jurisdiction of the English courts for the purposes of section 2(2) of the SIA.

That argument was rejected by Sir William Blair at first instance in April 2025, and the claimants appealed to the Court of Appeal. 

The issue

The issue before the Court of Appeal was whether India had, by ratifying the New York Convention, submitted to the adjudicative jurisdiction of the English courts in respect of enforcement proceedings within the meaning of section 2(2) of the SIA.

The claimants argued that Article III of the Convention, which requires contracting states to recognise and enforce foreign arbitral awards as binding, necessarily entails each contracting state consenting to the jurisdiction of the courts of other contracting states. They contended that Article III performs a function analogous to Article 54(1) of the ICSID Convention, which the Supreme Court interpreted in Infrastructure as constituting a clear and unequivocal waiver of adjudicative immunity for the purposes of section 2(2) of the SIA.

The Court of Appeal’s decision

The Court unanimously dismissed the appeal. Phillips LJ concluded that India’s ratification of the New York Convention did not amount to a prior written submission to the adjudicative jurisdiction of the English courts for the purposes of section 2(2) of the SIA. Article III expressly preserves the application of domestic procedural rules, including state immunity, and therefore cannot be interpreted as constituting  a waiver of adjudicative immunity merely by virtue of a state’s ratification of the Convention.

• Ratification of the New York Convention does not constitute a waiver of state immunity

The Court accepted that the appropriate test for determining whether a treaty constitutes a waiver of immunity had recently been established by the Supreme Court in Infrastructure. A waiver need not use words such as “waiver” or “submission”, but it must amount to “a clear and unequivocal expression of the state’s consent to the exercise of jurisdiction”. Whether such consent exists depends on the proper interpretation of the treaty in accordance with Articles 31 and 32 of the Vienna Convention on the Law of Treaties.

The Court rejected the claimants’ submission that the obligation imposed by Article III of the Convention to recognise and enforce arbitral awards necessarily involves consent to the jurisdiction of the courts of other contracting states in the same way as Article 54(1) of the ICSID Convention. While acknowledging that the two provisions share similar language, the Court held that the comparison could not stop there. Article III contains a qualification absent from Article 54(1), namely that recognition and enforcement are to take place “in accordance with the rules of procedure of the territory where the award is relied upon”.  

• State immunity forms part of the “rules of procedure” in the context of Article III

The Court also considered whether state immunity falls within the scope of the “rules of procedure” referred to in Article III. It answered that question unequivocally in the affirmative.

Relying on both domestic and international authorities, the Court reaffirmed that state immunity is properly characterised as a procedural rule. It does not determine the substantive rights and obligations of the parties; rather, it operates as a jurisdictional bar preventing national courts from adjudicating particular claims. 

• The New York Convention and the ICSID Convention establish different enforcement regimes

The Court rejected the proposition that the Supreme Court’s analysis in Infrastructure could simply be transposed to Article III of the New York Convention.  The Supreme Court in Infrastructure did not refer to Article III of the New York Convention. However,  the Supreme Court emphasised the fundamental differences between the New York Convention and the ICSID Convention. Although both treaties seek to facilitate the recognition and enforcement of international arbitral awards, they pursue that objective through materially different mechanisms.

The ICSID Convention establishes a self-contained enforcement regime for disputes between states and foreign investors. Article 54(1) requires contracting states to recognise and enforce ICSID awards as if they were final judgments of their own courts, while Article 55 expressly preserves immunity from execution but is silent on adjudicative immunity. 

The New York Convention, by contrast, governs the recognition and enforcement of foreign arbitral awards generally, irrespective of whether a state is a party to the arbitration. The Court further observed that, unlike the ICSID Convention, the New York Convention contains no provision equivalent to Article 55 preserving immunity from execution. Accepting the claimants’ interpretation would therefore produce the surprising result that a state would be taken to have waived both adjudicative immunity and immunity from execution merely by ratifying the Convention, despite the complete absence of any reference to state immunity in its text.

Comment

The Court of Appeal’s decision confirms that the recognition and enforcement of non-ICSID investment treaty awards against sovereign states remains subject to the ordinary principles of state immunity.

The significance of the judgment extends beyond the immediate dispute between the parties. Following the Supreme Court’s decision in Infrastructure, it was unclear whether the reasoning applied to Article 54(1) of the ICSID Convention might also extend to Article III of the New York Convention. The Court of Appeal has now rejected that proposition, making clear that the two conventions establish fundamentally different enforcement regimes and cannot be interpreted by analogy. 

More broadly, the judgment reinforces the importance of identifying a clear legal basis for displacing state immunity. The decision provides welcome clarity that ratification of the New York Convention alone is insufficient to constitute a waiver of adjudicative immunity. Parties seeking to enforce non-ICSID investment treaty awards against sovereign states must therefore continue to establish an applicable exception to immunity under domestic law, most commonly the arbitration exception in section 9 of the SIA. 

It is noteworthy that India’s claim to state immunity against adjudicative jurisdiction has been rejected in Canada. But the reason for that conclusion was not premised solely on India’s ratification of the New York Convention. Rather, it was based on two further grounds: first that India had entered into an investment treaty with Mauritius and, second, that India had agreed to submit to arbitration and had participated in the arbitration. Conversely, India’s claim to state immunity has been upheld by the High Court of Australia (which was characterised as highly persuasive by the Court of Appeal). Similarly, in unrelated cases, courts in the United States and Germany have rejected the argument that merely ratifying the New York Convention constitutes a waiver of immunity.  Therefore, it will be important for award creditors to consider, in the usual way, the jurisdictions in which to commence enforcement proceedings if seeking to rely on an alleged waiver of adjudicative immunity under the New York Convention, given the different outcomes in different jurisdictions. 

For further information, please email the authors or your usual CMS contact.

The authors would like to thank Kirsten Stretton for her assistance with this article.

Article co-authored by Sam Champion, trainee in CMS London.

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