Enforcement of Arbitral Awards: Court of Appeal Confirms That Ratification of the New York Convention Does Not Waive Sovereign Immunity
The Court of Appeal of England and Wales in CC/Devas (Mauritius) Ltd & Others v The Republic of India [2026] EWCA Civ 797 has held that a State’s ratification of the New York Convention does not, by itself, waive sovereign immunity as a defence to the enforcement of an arbitral award.
This decision provides further clarification on the interaction between the New York Convention and rules of state immunity. It can be contrasted with the Supreme Court’s recent decision in The Kingdom of Spain v Infrastructure Services Luxembourg S.À.R.L. / Republic of Zimbabwe v Border Timbers [2026] UKSC 9, which held that Contracting Parties to the ICSID Convention cannot claim sovereign immunity from suit to resist the enforcement of ICSID awards.
I. BACKGROUND
In January 2005, Devas entered into a contract with Antrix, an Indian entity wholly owned by the Government of India. The contract provided for the lease of part of India’s S-Band spectrum on two Indian satellites to support a nationwide multimedia communications platform. Antrix later terminated this agreement, purportedly on security grounds. Mauritian shareholders in Devas subsequently brought UNCITRAL arbitration proceedings against India under the India-Mauritius BIT.
In July 2016 and October 2020 respectively, the tribunal issued an interim and final award holding India liable for breaching the BIT. India resisted enforcement in the United Kingdom on the basis of sovereign immunity from suit. In a High Court judgment dated 17 April 2025, Sir William Blair agreed that India was immune from suit and had not waived that immunity. The investors appealed the judgment to the Court of Appeal.
II. RATIFICATION OF THE NEW YORK CONVENTION DOES NOT WAIVE SOVEREIGN IMMUNITY
The Court of Appeal had to decide whether, by ratifying the New York Convention, a foreign state waives its sovereign immunity from suit in respect of enforcement proceedings in the English courts. The key issue for determination was whether Article III of the New York Convention amounts to a “prior written agreement” to submit to the jurisdiction under Section 2(2) of the State Immunity Act 1978 (“SIA 1978”).
Article III 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.”
A. The Investors’ Submissions
The investors asked the Court of Appeal to apply to Article III substantially the same reasoning that the Supreme Court applied to Article 54(1) of the ICSID Convention in Infrastructure Services / Border Timbers, as follows:
a. In Infrastructure Services / Border Timbers, the Supreme Court held that Article 54(1) of the ICSID Convention amounts to an express and sufficiently clear submission to the jurisdiction of the English courts for the purposes of Section 2(2) of the SIA 1978.
b. Article III of the NYC is materially analogous to Article 54(1).
c. Article III therefore also constitutes an express and sufficiently clear submission to the jurisdiction, and waives state immunity from suit.
Interestingly, the investors effectively mirrored an argument advanced by Spain and Zimbabwe in Infrastructure Services / Border Timbers. There, both States sought to resist enforcement on the basis that Article 54(1) of the ICSID Convention and Article III were similarly worded and, therefore, that Article 54(1) should not be construed as waiving immunity.
The investors further argued that the reference in Article III to enforcement “in accordance with [local] rules of procedure” does not qualify a state’s submission to the jurisdiction. It merely governs the procedural mechanism for giving effect to the obligation to recognise and enforce awards, without engaging the separate question of state immunity.
B. The Court of Appeal’s Reasoning
The Court of Appeal held that India had not waived its immunity through Article III of the New York Convention. In the leading judgment, Phillips LJ noted that:
a. The wording of Article III differs materially from Article 54(1) of the ICSID Convention. Unlike Article III, Article 54(1) of the ICSID Convention does not preserve local procedural rules governing enforcement.
b. The enforcement obligation in the ICSID Convention necessarily covers awards against another Contracting Party: this is a reciprocal obligation that does not exist in the New York Convention.
c. Unlike the New York Convention, the ICSID Convention expressly preserves state immunity against execution, but does not preserve immunity from suit.
Further, the Court of Appeal had “no hesitation” in concluding that state immunity rules amounted to “rules of procedure” under Article III. As a result, the New York Convention explicitly preserves state immunity. Indeed, if state immunity were not a “rule of procedure,” immunity from execution might also be waived by the New York Convention (which cannot have been intended by the Contracting Parties).
III. COMMENT
The Court of Appeal’s decision confirms that Article III of the New York Convention does not constitute a “prior written agreement” to submit to the jurisdiction of the English courts under Section 2(2) of the SIA 1978. It therefore cannot form a basis to argue, in enforcement proceedings, that a State has waived its immunity.
The decision in Devas marks a clear distinction in the approach of English courts towards invocations of state immunity. The Supreme Court’s decision in Infrastructure Services / Border Timbers prevents a State from claiming immunity against enforcement of ICSID awards. However, Devas shows that when investing outside the protections of the ICSID regime a foreign investor faces a more difficult path to enforcement where the state claims immunity. This also reflects a growing international consensus, with courts in the US, Australia and Germany similarly holding that ratification of the New York Convention does not, without more, constitute a waiver of state immunity.
In the enforcement proceedings, it was suggested that India had waived its immunity by agreeing to arbitrate within the meaning of Section 9 of the SIA, but ultimately the Court of Appeal was not asked to decide this issue. A similar question came before both the Court of Appeal and Supreme Court in Infrastructure Services / Border Timbers, but they similarly declined to address it. Investors will therefore have to wait for these important points of clarification regarding the scope of Section 9 of the SIA.
**This client alert was prepared with contributions from Jack Olsburgh.
