English Court: Ratification of New York Convention is not a Waiver of Sovereign Immunity

In CC/Devas v India [2025] EWHC 964 (Comm), the English High Court found that a state's ratification of the New York Convention is not, on its own, a waiver of sovereign immunity under the State Immunity Act 1978 (SIA). This means that, unless any other exceptions under the SIA apply, a state may invoke the sovereign immunity defence against the recognition and enforcement of an arbitral award pursuant to the New York Convention. This position is consistent with the outcome reached by the Australian Full Court in Republic of India v CCDM Holdings LLC [2025] FCAFC 2. 

What you need to know

• In CC/Devas v India [2025] EWHC 964 (Comm), the English High Court considered the "submission to jurisdiction by prior written agreement" exception (under s2(2) of SIA) to the general rule of sovereign immunity in the context of an investor seeking to enforce a non-ICSID arbitration award in England against the state of India.
• The English High Court concluded that India's ratification of the New York Convention, on its own and absent a valid arbitration agreement, did not amount to a waiver of its sovereign immunity. While this decision does not undermine the enforcement-friendly position of the New York Convention or of the English courts in general, it clarifies the limits of states' waiver of immunity and consent to jurisdiction.
• The Full Court of the Federal Court of Australia in India v CCDM Holdings LLC [2025] FCAFC 2 reached a similar outcome, upholding India's sovereign immunity, albeit through different reasoning. It decided that India's submission to the jurisdiction of the courts of Australia under the New York Convention was limited by its reservation to the enforcement of awards concerning 'commercial' relationships and that the investment arbitration award in question was not commercial in nature (see our previous article for further details).
• The approach taken by the English Court in CC/Devas v India to New York Convention awards is different to the position regarding arbitration awards subject to recognition and enforcement under the ICSID Convention. In Infrastructure Services Limited and another v Spain¹, the English Court of Appeal found that Article 54 of the ICSID Convention (which records the contracting states' agreement to recognise and enforce ICSID awards) does amount to a valid submission to the jurisdiction of the English courts and constitutes a waiver of state immunity for registration purposes. The Australian High Court also adopted a largely consistent approach with regards to ICSID arbitral awards² (see this article for more details).
• On 16 May 2025, the English High Court granted the investors in CC/Devas v India permission to appeal regarding the issue under s2(2) of the SIA.³ The separate issue of whether s9 SIA (i.e. the exception to state immunity based on the existence of an arbitration agreement) applies, is also still pending in the proceedings. In any event, careful consideration should be given to sovereign immunity issues on both a jurisdiction-by-jurisdiction and treaty-by-treaty basis. 

Background 

Between 2012 and 2020, Devas Multimedia Pte Ltd (an Indian telecommunications company) obtained a favorable ICC award against Antrix Corporation Ltd (an India SOE acting under the directions of the Indian government's Department of Space) under a commercial contract for the lease of India's S-band spectrum. Three Mauritian shareholders of Devas Multimedia also succeeded in an UNCITRAL investment arbitration against India under the Mauritius-India BIT. Since 2021, Devas and its Mauritian investors have sought to enforce the ICC award and UNCITRAL award (together, the Awards) in various jurisdictions, including in England and Australia.  India has sought to rely on the sovereign immunity defence in resisting these enforcement proceedings. 

The English High Court decision in CC/Devas v India

S1(1) of the SIA lays down the general rule under English law that a state has immunity from the jurisdiction of the English courts unless an exception applies. S2(2) of the SIA provides for one such exception, that a state may submit to the English courts' jurisdiction "by a prior written agreement". The question before the English High Court in CC/Devas v India was whether India's ratification of the New York Convention, on its own, constituted a submission to the jurisdiction by way of "prior written agreement" for the purposes of s2(2) of the SIA.⁴ The issue of the potential application of s9 of the SIA, which concerns the "arbitration" exception to state immunity, was deferred for consideration later in the proceedings.

The English High Court considered that the ratification of the New York Convention was not a submission to the jurisdiction under s2(2) SIA. The test for waiver of sovereign immunity under s2(2) requires any waiver to be "expressed in a clear and recognizable manner, as by an unequivocal agreement".⁵ It was held that, under English law, the mere ratification of the New York Convention by India did not amount to a clear and unequivocal waiver of sovereign immunity, and accordingly, did not constitute a submission to the English courts' jurisdiction. A summary of the court's reasoning is as follows: 

1. Article III of the New York Convention (which the Claimants relied on as evidence of the necessary agreement by India) makes clear that a contracting state's obligation to recognise and enforce arbitral awards is "in accordance with the rules of procedure of the territory where the award is relied upon". Under English law, in contrast to Australian law, sovereign immunity is a procedural matter pertaining to the English courts' jurisdiction, rather than a matter of substantive liability.⁶ Therefore, Article III of the New York Convention preserves state immunity by its own terms.
2. Unlike the ICSID Convention,⁷ the drafters' intentions and the negotiating history of the New York Convention do not indicate that it was intended to preclude immunity-based arguments in enforcement actions against contracting states.⁸

Despite its conclusion upholding India's immunity, the English High Court was careful to stress that its decision should not be interpreted as compromising the pro-enforcement stance of the New York Convention and that of the English courts in general.⁹

On 16 May 2025, Sir William Blair, sitting at the English High Court, granted Devas Multimedia and its investors permission to appeal against his decision regarding the issue under s2(2) of the SIA. In particular, he noted that the Court of Appeal in Infrastructure Services Limited v Spain expressed uncertainty as to whether the same outcome regarding the effect of the ICSID Convention under s2(2) of the SIA would be reached under the New York Convention, and since the Court of Appeal's decision the Infrastructure Services Limited v Spain case is subject to further appeal and is pending before the UK Supreme Court, the submission to jurisdiction issue under s2(2) of the SIA is "firmly in the purview of the appellate courts".¹⁰

Comparison with the Australian approach in India v CCDM Holdings LLC

As the English High Court noted, the Australian court had also considered a similar issue involving the same parties. While the Full Court of the Federal Court of Australia in India v CCDM Holdings LLC ultimately reached the same outcome as the English High Court - that India's sovereign immunity was intact – it adopted different reasoning. 

Upon India's appeal, the Australian Full Court overturned the first instance decision and concluded that India had, by ratifying the New York Convention, submitted to the jurisdiction of the Australian courts, but that submission was expressly limited by its commercial reservation.¹¹ The Australian Full Court decided that the investment arbitration award was not commercial in nature and, as such, was carved out by India's commercial reservation. Accordingly, India had not waived its immunity and was entitled to resist the enforcement of the arbitral awards. While this decision represents the current position under Australian law, it should be noted that an application for permission to appeal has been filed by the investors and is currently pending before the High Court of Australia¹². Read our previous article where we discussed the Australian Full Court's judgment in detail. 

Interestingly, in CC/Devas v India, India sought to rely on the Australian Full Court's decision in India v CCDM Holdings LLC and its commercial reservation to the New York Convention, in support of its sovereign immunity defence. Although the English High Court acknowledged that the Australian Full Court's decision in favour of India carried "considerable weight", it found it unnecessary to decide on this issue, which it regarded as being "so closely tied to the law of India", given its broader conclusions on the application of Article III of the New York Convention under English law.¹³ It remains to be seen whether the Australian High Court will also give Devas Multimedia and its investors' leave to appeal in Australia.

Analysis and implications

The question of whether sovereign immunity is available to states in the context of the recognition and enforcement of arbitral awards is a complex and nuanced issue. The English High Court in CC/Devas v India noted that its conclusion was a reflection of the significance of the "narrow, but important, issue" as to whether a state has given its consent to waive its immunity by ratifying the New York Convention.¹⁴

The decision serves as an important reminder of the careful consideration parties must give to the issue of sovereign immunity at the outset when contracting with a state and/or a state-owned enterprise. The most effective way of dealing with state immunity is to seek an express waiver of immunity both from suit and enforcement. 

The different reasoning (despite the same outcomes) adopted by the Australian court also highlights the necessity for award creditors to carefully consider the availability of sovereign immunity defences on a jurisdiction-by-jurisdiction basis, which includes careful scrutiny of any reservations made by a state to its ratification of the New York Convention. 

Further, when comparing the English courts' decision in CC/Devas v India and the Australian courts' decisions in India v CCDM Holdings LLC against their respective decisions in the Kingdom of Spain cases, it becomes clear that the terms of the applicable investment treaties, especially the dispute resolution mechanisms they provide, are critical. In contrast to the approach taken with non-ICSID awards under the New York Convention, the English courts and the Australian courts took a largely consistent approach when dealing with the registration of an ICSID arbitration award in the Kingdom of Spain cases. Both courts held that a contracting state to the ICSID Convention had waived its immunity through the express submission to the jurisdiction under Article 54 of the ICSID Convention (see our previous article for a detailed discussion of the two courts' decisions in Infrastructure Services v Kingdom of Spain). The divergent outcomes regarding sovereign immunity under the ICSID Convention and the New York Convention may influence the decisions of international investors when structuring their investments going forward. Investors may prefer the greater certainty offered by the ICSID Convention in terms of enforcement of arbitral awards, as opposed to the more variable and nuanced outcomes under the New York Convention, which are subject to the specific reservations of individual states.

Authors: Jenny Zhang, Associate; Amy Cable, Senior Expertise Lawyer; Elinor Thomas, Counsel; Emma Johnson, Partner.