30/06/2026

Court of Appeal confirms that ratification of the New York Convention is not a waiver of state immunity

In an important judgment handed down on 24 June 2026, the Court of Appeal has confirmed that India’s ratification of the New York Convention is not a waiver of state immunity in relation to the enforcement of two bilateral investment treaty arbitration awards.

The judgment, in CC/Devas (Mauritius) Ltd and Others v The Republic of India [2026] EWCA Civ 797, which dismisses an appeal from the decision of Sir William Blair dated 17 April 2025, will be of great interest to the international legal community.

This case had been chosen as one of The Lawyer’s Top 10 appeals of 2026.

Sudhanshu Swaroop KC acted for the Republic of India.

Background

The UK proceedings concern enforcement against India of two arbitration awards: an award on jurisdiction and merits dated 25 July 2016, and an award on quantum dated 13 October 2020. The awards relate to the bilateral investment treaty between Mauritius and India.

India claims immunity under s.1(1) of the UK State Immunity Act 1978 (the SIA), which sets out the general rule that a State is immune from the jurisdiction of the courts of the United Kingdom.

The exceptions to the general rule include ‘Submission to jurisdiction’, as set out in s.2 of the SIA. Under s.2(2), a State may submit, “by a prior written agreement”. The question before the court was whether, for the purposes of enforcement of the awards, India had submitted to the jurisdiction by “prior written agreement”, by its ratification of the 1958 New York Convention (the NYC).

In this regard, art III of the NYC 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.”

In the enforcement proceedings, there is also a question concerning the exception to immunity in s.9 of the SIA, which provides that: “Where a State has agreed in writing to submit a dispute to arbitration, the State is not immune as respects proceedings in the courts of the United Kingdom which relate to the arbitration.” The court was not asked to determine (and did not determine) the s.9 SIA question, which raises an issue as to whether India agreed to arbitrate.

The judgment

The court held that India’s ratification of the NYC does not amount to consent by way of “prior written agreement” for the purposes of s.2(2) of the SIA.

In particular, the court reasoned that in art III of the NYC, “the expression “rules of procedure” encompasses state immunity”, and accordingly art III “preserves state immunity by its own terms” [46].

The court also considered the Supreme Court judgment in Infrastructure Services Luxembourg SARL v The Kingdom of Spain [2026] 2 WLR 581, which held that agreement to art 54(1) of the ICSID Convention is a waiver of state immunity. The court held that the reasoning of the Supreme Court in relation to art 54(1) of the ICSID Convention “cannot simply be read across” to art III of the NYC, given the differences in the wording, context, and object and purpose of the treaties [22–31, 65–66].

Significance

The Court of Appeal has confirmed that, for the purposes of s.2 of the SIA, ratification of the NYC is not a submission to jurisdiction, and that in this regard, the position is fundamentally different to the ICSID Convention.

Sudhanshu Swaroop KC was instructed by a team at White & Case, including partners Andrea Menaker and Emiko Singh, and associates Will Obree, Subhiksh Vasudev and Manal Sanai.