Ratifying New York Convention does not waive state immunity (English Court of Appeal)

The English Court of Appeal has confirmed that ratification by a state of the New York Convention does not waive immunity from the jurisdiction of the English courts under the State Immunity Act 1978 (SIA). India could therefore rely on its immunity to resist recognition and enforcement of an arbitration award issued against it, since none of the other SIA exceptions applied.

What you need to know

• In CC/Devas (Mauritius) Ltd v India [2026] EWCA Civ 797, the Court of Appeal upheld the earlier decision of the Commercial Court (discussed in our previous article) that ratification of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC) does not, without more, amount to a waiver by the ratifying state of its sovereign immunity from jurisdiction, under section 1 of the SIA.
• CC/Devas, a Mauritian company, sought to enforce certain arbitration awards against India. The issue was whether, by ratifying the NYC, India had submitted to the adjudicative jurisdiction of the courts of the UK (itself a party to the NYC) for enforcement proceedings, thereby waiving immunity "by prior written agreement" (under section 2(2) of the SIA).
• The Court of Appeal's clear answer was that India had not waived its immunity. India could therefore rely on sovereign immunity to resist enforcement of the awards.
• The Court of Appeal confirmed that the NYC is both pro-arbitration and pro-enforcement of arbitration awards. However, before that policy can be applied, the English court's jurisdiction must be engaged. Here, it was not.
• This issue will not often arise in practice. Usually, where an award creditor seeks to enforce an arbitration award against a state, that state will have been party to the arbitration agreement, which is a separate exception to immunity (under section 9 of the SIA).
• This decision aligns with the High Court of Australia’s approach in proceedings concerning enforcement of the same awards. The High Court reached the same conclusion under Australia's Foreign States Immunities Act 1985 (Cth) (for more details, see our article on that decision).
• The position differs markedly for ICSID Convention awards. Both the UK Supreme Court and the Australian High Court have confirmed that state ratification does waive immunity for recognition and enforcement of ICSID awards. For further discussion, see our articles on the decisions of the UK Supreme Court and the Australian High Court.

Background and Commercial Court decision

The background is complex. In brief, Devas Multimedia Pte Ltd, an Indian telecommunications company, obtained an ICC arbitration award against Antrix, an Indian state-owned entity. The tribunal found Antrix had wrongfully cancelled a commercial contract on directions from the Indian government. Subsequently, three Mauritian shareholders of Devas obtained an UNCITRAL investment arbitration award against India under the Mauritius-India bilateral investment treaty. Since 2021, Devas and its Mauritian investors have pursued enforcement actions in various jurisdictions, including England and Australia. India has, among other things, sought to rely on sovereign immunity to resist enforcement.

Section 1(1) of the SIA establishes the general rule that a state has immunity from the jurisdiction of the English courts unless an exception applies. Section 2(2) provides one such exception: a state may submit to the English courts' jurisdiction "by a prior written agreement".

In CC/Devas v India [2025] EWHC 964 (Comm), the Commercial Court considered whether India's ratification of the NYC amounted to a submission to the English court's jurisdiction by way of "prior written agreement".¹  The judge observed that a waiver of state immunity by treaty, such as the NYC, must always be "express, and expressed in a clear and recognisable manner, as by an unequivocal agreement." Applying that test, he ruled that mere ratification of the NYC, without more, could not constitute a waiver. For more detail, see our previous article.

CC/Devas appealed to the Court of Appeal.

Court of Appeal confirms mere ratification of NYC is not a waiver of immunity

The Court of Appeal held that the issue turned on the proper interpretation of Article III of the 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." (Emphasis added.)

The question was whether the principle of sovereign immunity fell within the "rules of procedure" of England, as the territory where the award is relied upon.

The Court of Appeal held that it is well established that English law treats state immunity as a rule of procedure. It follows that the reference to "rules of procedure” in Article III "encompasses state immunity where that is a rule of procedure in the territory in question", as is the case for England.

The NYC therefore preserves state immunity by its own terms. The Court noted this interpretation "entirely accords with common sense": states would not agree to waive immunity from enforcement of awards where they have not entered into an agreement to arbitrate (which itself waives immunity under section 9 of the SIA). The negotiating history of the NYC also supported this view.

Position under the ICSID Convention distinguished

The Court of Appeal drew a clear distinction between this case and the Supreme Court's decision in Infrastructure Services Luxembourg SARL v Spain [2026] UKSC 9 (Infrastructure). In Infrastructure, the Supreme Court held that ratification of the ICSID Convention did waive immunity from enforcement under section 2(2) of the SIA. That decision could not simply be “read across” to the NYC. Key reasons included the following:

• Although Article 54(1) of the ICSID Convention, which was the key provision for Infrastructure, is in similar terms to Article III of the NYC, crucially, the former omits any reference to "rules of procedure".
• The ICSID Convention expressly addresses and preserves state immunity from execution (Article 55), while the NYC does not address immunity at all.
• The treaties have different purposes. The object of the NYC is to "facilitate and encourage international arbitration by promoting recognition and enforcement by Contracting States of any and all foreign arbitral awards, regardless of the parties." By contrast, the ICSID Convention's "whole purpose", as held by the Supreme Court, was to establish a system for resolving investment disputes between states and foreign investors by arbitration, which would produce binding awards supported by a fully reciprocal enforcement regime to ensure compliance and increase mutual trust and confidence.

Had the Court allowed CC/Devas' appeal and excluded state immunity from “rules of procedure”, Article III of the NYC would have amounted to a waiver of state immunity, not just from enforcement, but also from execution. This would have been a far broader waiver than Articles 54 and 55 of the ICSID Convention, which expressly preserve immunity from execution.

English law aligned with other jurisdictions

This decision confirms English law alignment with that of other jurisdictions party to the New York Convention, including Canada, Germany, the US and Australia. In the US, the US District Court for the District of Columbia in Global Voice Group SA v Republic of Guinea 2025 U.S. Dist LEXIS 28564 (D.D.C. 2025) rejected the argument that merely by ratifying the New York Convention a state had waived its right to state immunity and held, simply, that: "no arbitration agreement, no waiver."

In CCDM Holdings, LLC & Ors v The Republic of India [2026] HCA 9, decided in April 2026, the Australian High Court unanimously held that ratification of the NYC does not, on its own, waive foreign state immunity under the Foreign States Immunities Act.

Analysis and implications

In practice, the question of whether ratification of the NYC alone waives adjudicative immunity may rarely arise. Still, the Court of Appeal's decision brings welcome clarity. CC/Devas may seek leave to appeal to the UK Supreme Court, but the prospects of leave being granted seem slim, and the chances of such an appeal succeeding slimmer still.

For holders of non-ICSID Convention arbitration awards against states, the position is clear: absent an arbitration agreement engaging the exception under section 9 of the SIA, the state will likely be able to rely on immunity to resist enforcement. This again emphasises the advantages of arbitrating under the ICSID Convention, where that forum is available.

Authors: Elinor Thomas (Counsel), Alex Hiendl (Senior Expertise Lawyer) and Jenny Zhang (Senior Associate)