Court affirms that a tribunal is generally entitled to apply the law of the seat to a procedural issue

The Republic of India -v- CC Devas (Mauritius) Ltd & others [2026] EWHC 156 (Comm)

In an earlier decision arising out of this dispute under a bilateral investment treaty arbitration, the Commercial Court held that mere ratification by a state of the New York Convention does not of itself mean that that state has submitted to the adjudicative jurisdiction of the English courts. For further details, see our article: Court: No Immunity Waiver from NY Conv | Hill Dickinson

This latest decision deals with an application made under s.45 of the Arbitration Act 1996, requiring the Court to determine a preliminary point of law arising in the underlying arbitration proceedings. Among other things, the decision highlights that in addressing procedural, as opposed to substantive, issues a tribunal will generally apply the law of the seat of the arbitration unless the parties have provided otherwise.

The background facts

Earlier arbitrations

Devas Multimedia Private Ltd (Devas India) was the counterparty to a contract dated 28 January 2005 (Agreement) with Antrix Corporation Limited (Antrix), the commercial arm of the Indian Space Research Organisation. The Agreement was terminated by Antrix on 25 February 2011 on the grounds of force majeure. The termination of the Agreement led to two earlier arbitrations:

1. In June 2011, Devas India commenced an ICC arbitration seated in India against Antrix seeking damages for lost profits arising out of the wrongful repudiation of the Agreement. This culminated in an award of US$562.5 million being made in favour of Devas India on 14 September 2015 (ICC Award).

2. Based on an India-Mauritius Bilateral Investment Treaty (BIT), three Mauritian companies that were shareholders of Devas India (Mauritian Companies) commenced an arbitration against the Republic of India in connection with the termination of the Devas-Antrix Agreement (Initial BIT Arbitration). This culminated in two further awards against India: on 25 July 2016, an award finding that India had breached the BIT as alleged and, on 13 October 2020, an award ordering India to pay the Mauritian Companies US$111 million plus interest and costs (BIT-1 Awards).

Antrix was subsequently successful in having Devas India wound up on the ground of fraud on the part of Devas India. The liquidators sought to terminate attempts to recognise and enforce the awards in multiple jurisdictions.

In August 2022, the High Court of Delhi set aside the ICC award on the grounds of illegality and fraud and conflict with Indian public policy. This was upheld on appeal.

The Mauritian Companies contended that the claims of fraud and illegality were unfounded and that the Indian liquidation proceedings violated fundamental principles of due process. In February 2022, they commenced the BIT-2 Arbitration against India for breach of the BIT. The BIT-2 Arbitration was to be conducted according to the 1976 UNCITRAL Rules as per the Tribunal’s Terms of Appointment (ToA).

In July 2022, India and Mauritius signed a Joint Interpretative Statement on the BIT to the effect that it did not apply where there had been allegations of fraud against the investors or any party owning or controlling them. The Mauritian Companies alleged this was India’s attempt to shut out the Mauritian Companies’ claim by alleging fraud against them.

In January 2023, India obtained an anti-arbitration injunction from the Mauritian Court restraining and prohibiting the Mauritian Companies from pursuing the BIT-2 Arbitration.

In March 2023, the BIT-2 Tribunal issued an Interim Award, holding that India had breached its duties within the arbitration proceedings by pursuing and enforcing the injunction and ordering India to cease those breaches of duty.

Appointment of Mauritian administrator

Thereafter, steps were taken to suspend the business licenses of the Mauritian Companies and to put them into administration. The Mauritian Court appointed an administrator, Mr Thacoor, to take over management of the Companies’ affairs (Appointment Orders).

Mr Thacoor informed the Tribunal that he was replacing the Mauritian Companies’ counsel with new counsel and requested that the BIT-2 Arbitration be stayed pending his final decision on the continuation of the proceedings.

There then ensued a dispute between the various interested parties as to the extent and scope, if any, of Mr Thacoor’s power and whether: his appointment was a breach by India of the Tribunal’s Interim Award; whether Mr Thacoor had the authority to replace counsel in the Arbitration; and whether the Tribunal had to recognise his appointment.

The Mauritian Companies also challenged Mr Thacoor’s appointment in the Mauritian Courts. However, they omitted to follow the correct procedure for doing so and consequently the Appointment Orders stood. The parties differed as to what this outcome ultimately meant for the BIT-2 Arbitration proceedings.

Procedural Orders

The Tribunal had initially reserved its position on the issue of the Mauritian Companies’ representation, pending a determination from the Mauritian Courts. However, it stated in its Procedural Order No. 3 (PO3) that any final determination on the matter by the courts of Mauritius would still be subject to the Tribunal's determination on whether and to what extent such decision was binding, or had to be recognized by, an international tribunal seated in London.

After the Mauritian Court had decided to set aside all its previous orders apart from the Appointment Orders, the Tribunal gave its decision, in January 2026, on the representation of the Mauritian Companies (PO6).

The Tribunal ruled by a majority that it declined to recognise the authority of Mr Thacoor for the exclusive purposes of the Arbitration, that it declined to recognise Mr Thacoor's purported termination of the powers of attorney given to counsel to represent the Mauritian Companies in the Arbitration and that it continued to recognise appointed counsel as their authorised representative.

Principally, the Tribunal relied on the fact that the Appointment Orders were still under challenge in the Mauritius Courts. It was critical of the fact that they had been obtained ex parte without justification and were accompanied by little or no reasoning. The Tribunal also expressed concern as to Mr Thacoor’s conduct and his stance towards the Arbitration.

In March 2022, the Tribunal made an order (PO7), refusing India’s application for a stay of the Arbitration and giving procedural directions for the further continuation of the Arbitration.

Arbitration claim

In February 2026, India issued an arbitration claim against the Mauritian Companies in the Commercial Court.

India sought an order pursuant to s.45 of the Arbitration Act 1996 (1996 Act), which permits an application to the Court to determine a preliminary point of law that arises in the course of arbitration proceedings. There is a requirement that either all the parties consent to the application or that the Tribunal gives its permission for such application. Furthermore, the relevant question must be one of English law and it must substantially affect the rights of one or more of the parties.

India requested the Court to determine whether the English-seated Tribunal had to apply Mauritian law, and only Mauritian law, to determine who had authority to instruct lawyers in the Arbitration on behalf of the Mauritian Companies. Mauritian law was the law of the place of incorporation of the Companies. The application was brought with the consent of Mr Thacoor, acting as the Mauritian Companies’ administrator.

At the same time, the Mauritian Companies applied to act as Interveners in the proceedings, with instructions being received from some of their shareholders and directors who were resident outside of Mauritius.

The Commercial Court decision

Had the s.45 application been made with the parties’ consent?

The Mauritian Companies were, therefore, the defendants to the arbitration claim, represented by lawyers instructed on their behalf by the administrator. They were also Interveners in the proceedings, represented by a different set of lawyers.

The issue was whether Mr Thacoor could consent to the application on behalf of the Mauritian Companies, as the defendants, or whether the Mauritian Companies had to give their consent in their capacity as Interveners.

The Court decided that PO6 and PO7 did not of themselves mean that the consent of the Mauritian Companies, in their capacity as Interveners, was required for the s.45 application. Rather, the Court had to determine whether the Mauritian Companies had agreed to the application and would determine this issue on the basis of what Mauritian law provided regarding the extent of Mr Thacoor's authority to agree.

Was the s.45 application an impermissible challenge to PO6 because the Court could not revisit or overturn POs during the course of an arbitration?

India's question of law was properly characterised as arising in the course of the proceedings because it had arisen during the course of the Arbitration and was related to it and was a question which substantially affected the rights of one or more of the parties. It affected the significant issue of who was entitled to be heard by the Tribunal as representing in the Arbitration the corporate entities that were the Mauritian Companies.

Was s.45 limited to prospective questions of law?

India’s question was also capable of being a question of law within the meaning of s.45(1). There was nothing in the language of s.45(1), which restricted the Court's jurisdiction to circumstances in which the Tribunal had not given some form of ruling on the issue.

While s.45 might arguably have no purpose once a tribunal had made an award which determined the point to which the question went, there was no reason why that should be the case where the tribunal had made a procedural order and could still change its view on how to proceed with the arbitration going forward, whether based on a change of circumstance or otherwise.

Was s.45 ousted because the parties had not agreed to the application of English substantive law

While the parties had agreed on international law as the substantive governing law of the Arbitration, pursuant to the 1976 UNCITRAL Rules, this did not of itself oust the application of s.45.

The parties had agreed the governing law of the substantive dispute. In this case, the question of law arose (unusually) on a question of procedure rather than in relation to the merits.

Whatever the substantive law of an English-seated UNCITRAL arbitration, questions of law arising out of the award which were procedural were a matter for the law of the seat. That should be equally true of s.45 applications as it is for an application under s.69 of the 1996 Act regarding an error in law.

The Tribunal had a wide discretion to decide all procedural and evidential matters. In the absence of provision to the contrary, where a question arose other than on the substance of the dispute, the law of the seat (in this case, English law) would govern the arbitral proceedings.

Comment

It will be interesting to see what further developments there will be in this dispute, which is likely to throw up more applications to the Court.