Key takeaways
Ratification of New York Convention
Does not automatically mean state immunity waived.
Enforcement of arbitral awards
Qualified by rules of procedure in jurisdiction where enforcement is being sought.
International treaties and conventions
Should be interpreted as uniformly as possible.
CC/Devas (Mauritius) Ltd & Ors v The Republic of India [2026] EWCA Civ 797 (24 June 2026)
In April 2025, the Commercial Court found that the Republic of India (India) had not waived state immunity merely by ratifying the New York Convention (NYC): see Court: No Immunity Waiver from NY Conv | Hill Dickinson.
In February 2026, the Commercial Court upheld the English-seated UNCITRAL Tribunal’s application of English law, as the law of the seat, to a procedural issue: see Court backs tribunal’s use of seat law on procedure | Hill Dickinson
The Court of Appeal has now dismissed an appeal by the Mauritian claimants challenging the decision relating to the construction of Article III of the NYC, which reads:
’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.’
The Court of Appeal concluded that Article III qualified the obligation of contracting States to enforce arbitral awards by reference to whatever rules of foreign state immunity were adopted by the territory where the award was relied upon. That qualification was inconsistent with a waiver of foreign state immunity having occurred merely by ratification of the NYC.
The background facts
Details of the dispute can be found in our previous articles (see above). In brief, however, the Mauritian claimants obtained two arbitration awards (Awards) from a tribunal of the Permanent Court of Arbitration (Tribunal) seated in the Hague in arbitration proceedings under the UNCITRAL Rules. The Awards were obtained against India based on an India-Mauritius Bilateral Investment Treaty (BIT).
The claimants sought to enforce the Awards in various jurisdictions, including in this jurisdiction. India resisted enforcement in all the jurisdictions. Its defence of state immunity against adjudicative jurisdiction failed in Canada but was successful before the High Court of Australia.
The Commercial Court decision
In addition to resisting India’s contentions regarding the inapplicability of the s.9 State Immunity Act 1978 (SIA) exception to state immunity, the appellants argued that by reason of India’s ratification of the NYC (and, in particular, its agreement to Article III) the exception to state immunity under s.2 SIA was engaged.
S.2 SIA, provides an exception to state immunity as follows:
’Submission to jurisdiction.
(1) A State is not immune as respects proceedings in respect of which it has submitted to the jurisdiction of the courts of the United Kingdom.
(2) A State may submit after the dispute giving rise to the proceedings has arisen or by a prior written agreement; …’
S.17(2) SIA provides that the reference to an agreement in s.2(2) includes reference to a treaty, convention or other international agreement.
The English Commercial Court dealt with the state immunity case as a preliminary issue. The judge referred to the Supreme Court decision in Infrastructure Services Luxembourg SARL -v- The Kingdom of Spain [2026] UKSC 9, in which it was held that a waiver of immunity by treaty required a clear and unequivocal expression of the state’s consent to the exercise of jurisdiction. Such an expression of consent did not require explicit words such as waiver or submission. The test was whether the words used necessarily led to the conclusion that the state had submitted to the jurisdiction. For further details of the Infrastructure decision, see: Supreme Court rejects state immunity in registering ICSID awards | Hill Dickinson.
The judge decided that the reference to ’rules of procedure’ in Article III preserved state immunity in its own terms.
The claimants/appellants challenged that decision. They argued that, by the opening clause of Art. III, India and the UK had agreed that the UK had adjudicative jurisdiction to recognise and enforce the Awards, amounting to an express and sufficiently clear submission to the jurisdiction for the purposes of s.2(2) SIA by India.
The appellants further contended that the reference in Art. III to ’in accordance with the rules of procedure’ did not negate that agreement to submit to the jurisdiction, being a reference only to those rules applied for the purpose of giving effect to the obligation to recognise and enforce, and therefore not to the general rule that a state is immune from the jurisdiction of another state.
The Court of Appeal decision
The appeal was dismissed.
As a matter of both international law and English domestic law, state immunity was a rule of procedure going to the jurisdiction of a national court, not to substantive law.
Furthermore, whilst in Infrastructure, the Supreme Court had rejected the state immunity defence, it was dealing with the ICSID Convention, not the NYC. Its reasoning with regard to Article 54(1) ICSID, which was a self-contained scheme for producing binding awards, could not be read across to Article III of NYC. Article III was different to Article 54(1) in both wording and context. The purpose and objective of the ICSID Convention and the NYC were also different, and the articles of each Convention had to be interpreted on their own terms and in the context of the relevant Convention as a whole.
The appellants' contentions in relation to the meaning and effect of the words ’rules of procedure’ in Art. III had now been rejected by the High Court of Australia (HCA), in CCDM Holdings LLC & Ors -v- The Republic of India [2026] HCA 9. In a judgment delivered after the hearing before this Court of Appeal, the HCA had determined the same issue between the same parties in the context of India's claim to state immunity in relation to enforcement of the Awards in Australia.
The HCA had concluded that the rules of foreign state immunity, although jurisdictional, were treated at international law as rules of procedure. Article III, therefore, qualified the obligation of Contracting States to enforce arbitral awards by reference to the applicable state immunity rules. This was inconsistent with mere ratification of the NYC being treated as a waiver of state immunity.
As the Supreme Court in Infrastructure confirmed, so far as possible the text of a treaty should be interpreted in a uniform manner, and regard should be had to how it had been interpreted by the courts of different countries. The reasoning of the HCA, on precisely the same point as under consideration on this appeal, was therefore highly persuasive.
Comment
It remains to be seen whether this issue will be appealed to the Supreme Court. Notwithstanding any potential appeal, the dispute has provided a useful reminder from the English courts on the interpretation of international treaties and conventions and how, insofar as possible, the text of a treaty or convention should be interpreted in a uniform manner.
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