CC/Devas v India: English High Court finds that ratification of the New York Convention is not a waiver of State immunity

On 17 April 2025, the English High Court delivered its judgment in CC/Devas v India [2025] EWHC 964 (Comm). The judgment holds that ratification of the New York Convention does not, on its own, result in a waiver of State immunity under the UK's State Immunity Act 1978 (SIA). 

Background

The decision of the High Court arises out of enforcement proceedings relating to an award made in an arbitration between Mauritian investors and India under the Mauritius-India BIT. In summary:

• In January 2005, a contract was concluded between Devas Multimedia Private Limited (Devas) and Antrix Corporation Limited (Antrix), the latter being wholly owned by the Indian government’s Department of Space. The contract was for the lease of a proportion of India's S-band spectrum for the purpose of creating a communications platform providing multimedia services across India. 
   
• In 2011, India terminated the project and sought to annul the contract with Devas, allegedly to preserve the spectrum for ‘national purposes’. (For more detail, see the Freshfields' Arbitration Top Trends report on the increasing arbitration of space disputes.)
   
• Devas then commenced an ICC arbitration against India. This resulted in an award in 2015 awarding US$562 million to Devas on the basis of unlawful repudiation of the contract by Antrix. 
   
• In 2012, certain of Devas’ investors and shareholders (three Mauritian entities) commenced an UNCITRAL investment arbitration against India under the Mauritius-India BIT. The tribunal made awards on jurisdiction/merits and quantum in 2016 and 2020 respectively (the BIT Awards), finding that India breached its obligation to accord fair and equitable treatment (among other things), and awarding the three Mauritian entities compensation.
   
• In 2021 the Mauritian investors sought to enforce the outstanding amount of the BIT Awards – EUR 195 million as of September 2024 – in the English High Court. A without notice enforcement order was obtained from the English courts. India applied to have that order set aside on the basis that: (i) it is immune from the jurisdiction of the English courts under section 1 of the SIA; and (ii) section 9 of the SIA (the arbitration exception to immunity) does not apply because India did not agree to submit the relevant disputes to arbitration.
   
• As the judge noted, India has sought to rely on a State immunity defence in proceedings in some other countries. Those attempts have, to date, been rejected in Singapore (see Deutsche Telekom AG v. Republic of India [2023] SGHC(I) 7; Deutsche Telekom AG v. Republic of India [2023] SGCA(I) 10), the Netherlands, and Canada (see The Republic of India v CCDM Holdings, LLC & Ors [2024] QCCA 1620). However, in January 2025, India's immunity defence was upheld on appeal in the Federal Court of Australia (Republic of India v CCDM Holdings, LLC [2025] FCAFC 2).

The question which arose in the judgment discussed here is whether India had submitted to the jurisdiction of the English courts by ‘prior written agreement ’ – pursuant to section 2(2) of the SIA – by ratifying the New York Convention 1958 (NYC) (the section 2 question). The application of section 9 of the SIA was deferred to a later stage of the proceedings, on the basis that if India had submitted to the jurisdiction of the English courts it would be unnecessary to consider section 9 of the SIA (and the claimants would also benefit from the narrower grounds for challenging enforcement of an award under the NYC). 

The section 2 question

As the Court explained, the section 2 question was a narrow, ‘pure point of law ’: whether India, by ratifying the NYC, had submitted to the adjudicative jurisdiction of the English courts by ‘prior written agreement’ under section 2(2) of the SIA.

Section 2 of the SIA provides that:

Section 2 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.

Section 17 of the SIA provides that, for the purposes of Section 2(2), ‘references to an agreement include references to a treaty, convention or other international agreement’.

The claimants relied on Article III of the NYC as evidence of such agreement, arguing that Article III contains express consent for the English courts to recognise and enforce arbitral awards falling under the NYC’s scope, and that consent to jurisdiction is a necessary implication. 

Article III provides that:

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 claimants' argument was that:

1. For there to be an agreement in writing and, therefore, an express submission to jurisdiction under section 2(2) of the SIA, it is not necessary to use the term ‘waiver’ or ‘submit’ if the implication of waiver or submission is clear from the words used: see Infrastructure Services v Spain [2024] EWCA Civ 1257.
    
2. In Infrastructure Services, applying the above approach, the Court of Appeal held that Article 54(1) of the ICSID Convention – which provides that ‘Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State'– constitutes a ‘prior written agreement’ satisfying section 2(2) of the SIA.
    
3. Given the ‘close similarity of language and no material difference with language of the ICSID Convention ’, the Court of Appeal's approach to interpreting Article 54(1) should be highly persuasive of the proper interpretation of Article III of the NYC.
    
4. This approach is also supported by General Dynamics UK v Libya [2025] EWCA Civ 134 (in which Freshfields acted for the successful claimant – see our blog post for more details). 
    
5. There is no exclusion in the NYC for awards against States.
    
6. There is no scope for relying upon the words ‘rules of procedure’ in Article III NYC to impose an additional substantive condition on enforcement apart from the ordinary meaning to be given to those words. The words do not permit the inclusion of State immunity as a condition of enforcement.

India argued that it had not submitted to the jurisdiction of the English courts because inter alia:

1. Article III is not a ‘prior written agreement’ to submit to the jurisdiction of the English courts, as it is not an express, unequivocal and unmistakeable waiver or submission.
    
2. Further, Article III preserves State immunity as a defence to the enforcement of an arbitral award, because it provides for NYC contracting States to ‘recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon’.  

Ratification of the NYC does not, on its own, waive State immunity

The Court held that India had not submitted to the jurisdiction of the English courts merely by ratifying the NYC, answering the section 2 question in the negative for the following reasons:

1. Applying the test for a waiver of State immunity under section 2 of the SIA, India's ratification of Article III of the NYC is not, on its own, a waiver of State immunity by India. Such a waiver ‘must always be express, and expressed in a clear and recognisable manner, as by an unequivocal agreement’.
    
2. In particular, Article III of the NYC preserves State immunity because the obligation on a contracting State to ‘recognize arbitral awards as binding and enforce them’is expressed to be ‘in accordance with the rules of procedure of the territory where the award is relied upon’. Under English law, State immunity is a procedural rule going to the jurisdiction of a national court – not a rule of substantive law (per Jones v Saudi Arabia [2007] 1 AC 270). State immunity is, therefore, a ‘rule of procedure’ relevant to contracting States' obligations under the NYC to recognise and enforce arbitral awards.
    
3. Unlike the ICSID Convention, the negotiating history of the NYC does not indicate that Article III was intended to preclude a State from objecting to the enforcement of an arbitral award on grounds of State immunity. 

In reaching this view, the Court was at pains to emphasise that it should not be read as undermining the enforcement-friendly position of the NYC (or, indeed, of the English courts). As the judge noted:

[T]he conclusion I have reached is not intended to contradict in any way the enforcement friendly aspect of the NYC, which is its purpose, and the reason for its success, and which has been consistently upheld in the English courts. It simply recognises that international jurisprudence, which holds that ‘… state immunity occupies an important place in international law and international relations’, also has to be taken into account in deciding the narrow, but important, issue of whether a state has by treaty given its consent to waive that immunity.

As a result of the Court's judgment, the issues arising under section 9 of the SIA will now fall to be determined via a separate phase of the proceedings.

For further guidance on these issues, see our guide to State immunity and arbitration in England and Wales, which is available on Practical Law.