On 17 April 2025, England’s High Court released its judgment in CC/Devas (Mauritius) Ltd. et ors v The Republic of India. The judgment relates to sovereign immunity pursuant to the UK’s State Immunity Act 1978 (“SIA UK”) and the enforcement of arbitral awards made pursuant to a bilateral investment treaty (“BIT”). The specific question for the English High Court was whether or not India had submitted to the adjudicative jurisdiction of the English courts by its ratification of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1959) (“NY Convention”). In finding that India had not waived its sovereign immunity through “prior written agreement” only by ratifying the NY Convention, the English High Court has joined company with other American jurisprudence and has parted company with Canadian, Singaporean, and Dutch jurisprudence arising from the same factual background and underlying disputes.
Background – This case has previously been covered by Arbitration Matters on multiple occasions because the overall dispute spans two decades, multiple proceedings, and multiple jurisdictions, and because in that time it has contributed to establishing enforcement-related precedents in those jurisdictions. The short summary that follows is based on the facts recorded in the High Court’s judgment, but further details about the disputes can be found in prior Arbitration Matters posts including “Court rejects foreign state immunity to award enforcement #710”, “No enforcement of award against alter egos #681”, and “Agreement to Arbitration and Enforcement Jurisdiction a Package #891”.
In summary:
- A Contract was concluded between two Indian companies: Devas Multimedia Private Limited (“Devas”) and Antrix Corporation Limited (“Antrix”). Antrix is wholly owned by the Government of India and acts under its direction, with the contract describing it as “Govt. of India Company under Department of Space.”
- The Contract was for the lease of spectrum for satellites to be operated by the Indian Space Research Organization and it contained an arbitration clause in accordance with the rules and procedures of the ICC or UNCITRAL with a seat in New Delhi.
- In 2011, India (pursuant to the decision of inter alia the Prime Minister) decided to terminate the project and annul the contract, preserving the spectrum for national purposes and not leasing it to Antrix. Antrix then terminated the Contract with Devas on 25 February 2011.
- An ICC arbitration took place (brought by and resulting in an award in favour of Devas), and later arbitral proceedings were separately brought by Mauritian entities and shareholders of Devas, as investors, pursuant to a BIT concluded between India and Mauritius. The Tribunal in these later proceedings decided that India had breached its obligation to accord fair and equitable treatment to the investor Claimants (an obligation it bore under the treaty) and later, in 2020, made an award on quantum. As at September 2024 the value of the awards against India was stated to be more than EUR 195 million.
- On 29 June 2021, the investor Claimants obtained, in the English courts, an ex parte enforcement order against India in pursuit of recovery under the BIT awards. India applied, on 5 May 2022, to set aside the enforcement order on the basis that it is immune from the jurisdiction of the English courts and that an exception to state immunity (pursuant to section 9) in the SIA UK, where a state agrees to submit a dispute to arbitration, did not apply.
The Applicable Law and Question Posed – Pursuant to the SIA UK, a State has general immunity from UK court jurisdiction (pursuant to Section 1), but pursuant to Section 2, a State lacks immunity where it has submitted to the jurisdiction of the courts of the United Kingdom. A State may be found to have submitted to the jurisdiction of the UK courts (pursuant to Section 2(2)), “after the dispute giving rise to the proceedings has arisen or by prior written agreement”. As regards the NY Convention, Article III provides that, “[e]ach 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…” While the parties made submissions about the potential application of section 9 of the SIA UK, these and other grounds were deferred to be heard at a later date, leaving, “the Claimants’ contention, and the issue for decision, [being] that Article III NY [Convention] is alone sufficient to waive immunity” for the State of India (paragraph 57).
The investor Claimants argued that India had submitted to the adjudicative jurisdiction of the English courts by “prior written agreement” within the meaning of s.2(2) of the SIA UK, through India’s ratification of the NY Convention because:
- While the words, “prior written agreement” is used but once in the SIA UK, section 17 (Interpretation of Part I) explains that as regards “prior written agreement”, “[i]n sections 2(2)… references to an agreement include references to a treaty, convention or other international agreement”;
- Article III of the NY Convention (being a treaty) contained (i) express consent from India that UK Courts should recognize as binding and enforce arbitral awards falling within the scope of the NY Convention, and necessarily therefore that (ii) India consents to the UK Courts having adjudicative jurisdiction to so do;
- Reliance could be properly placed on a prior case (Infrastructure Services Luxembourg SARL v The Kingdom of Spain) which held that consent under a similarly worded (Section 2(2) of the SIA UK) part of the ICSID Convention constituted a prior written agreement and therefore submission to the jurisdiction of the UK courts. The case correctly decided that the terms “waiver” or “submit” need not be used if the implication of waiver or submission is clear from the words expressly used, and the case should be highly persuasive in interpreting Article III of the NY Convention given the close similarities and no material differences;
- The ICSID Convention (at Article 55) provides that nothing “shall be construed as derogating from the law in force… relating to immunity of that State or of any foreign State from execution” but the NY Convention contains no equivalent language; and
- State immunity is fundamentally inconsistent with the object and purpose of the NY Convention because it interferes with the effectiveness of arbitral awards and gives rise to delays and inefficiencies.
India argued inter alia that:
- Ratifying the NY Convention was not a “prior written agreement” to submit to the jurisdiction of the UK Courts because (i) such agreement must be “express” “unequivocal” and “unmistakable”, (ii) Article III is silent on waiver of immunity or submission to jurisdiction by a State that is party to an award, and (iii) Article III, by its own terms (in the second clause), preserves immunity; and
- Ratifying the NY Convention was also not a prior written agreement to submit to the jurisdiction of the UK Courts for BIT award enforcement purposes because of (i) the limited scope of the NY Convention, and (ii) a declaration that India had made when it ratified the NY Convention (limiting its applicability to arbitral awards arising from commercial contexts).
The Judgment of the Court – The Court held that India had not submitted to the adjudicative jurisdiction of the English courts through its ratification of the New York Convention. In reaching this conclusion the English Court held that:
- It was established law the waiver of state immunity by treaty or convention must be express, and in a clear and recognizable manner, as by an unequivocal agreement, even if the words “submit” and “waiver” are not used;
- The governing statute (SIA UK) differs from the terms of the other jurisdictions’ statutes brought to the court’s attention. With respect specifically to Canada’s State Immunity Act 1985 (R.S.C., 1985, c. S-18), the Court noted that (1) Canada’s act, unlike the UK (at section 9 of SIA UK), had no specific arbitration exception to immunity, and in any event (2) the decision of the Court of Appeal of Quebec (referred to below in the Contributor’s Notes section, to which the English Court was referred by the Claimants, and which found that India had waived state immunity by necessary implication) was based on both India’s ratification of the New York Convention, and on India’s agreement to submit to arbitration in the relevant BIT (with India’s arguments about its agreement to arbitration being vitiated by illegality already rejected by an earlier decision of the Quebec courts);
- State immunity is a procedural rule going to jurisdiction and not substantive law, and coupled with the second clause of Article III of the NY Convention (whereby the obligations on Contracting States are expressed to be “in accordance with the rules of procedure of the territory where the award is relied upon”), this means that state immunity is not waived merely by being a party to the NY Convention; and
- Express waivers are commonplace commercial events, and treating ratification of the NY Convention as a waiver on its own appears to give too little weight to the fact that state immunity occupies an important place in international law and relations. That is said to “not in any way contradict the enforcement friendly aspect” of the NY Convention.
Contributor’s Notes:
The English Court was taken to various precedents arising from the same facts including that from the Court of Appeal of Quebec (canvassed previously in Arbitration Matters in Agreement to Arbitration and Enforcement Jurisdiction a Package – #891). In examining that decision, the English Court noted that the Court of Appeal of Quebec had based its judgment both on India’s ratification of the NY Convention, and on India’s agreement to submit to arbitration in the relevant BIT. This allowed the English Court to distinguish the decisions because the English proceedings were only concerned with whether ratification of the NY Convention on its own had waived India’s sovereign immunity.
In my view, while the Court of Appeal of Quebec did indeed render judgment based on both factors, it is not clear that the Court of Appeal of Quebec regarded both factors as necessary for waiver of immunity and it appears from the language of the Quebec judgment that merely being a state party to the New York Convention may have been sufficient. Two other potentially substantial differences in the respective courts’ reasoning also are of note.
The Quebec Court of Appeal held that (i) India’s attempt to invoke state immunity in jurisdictions where it may (directly or indirectly) hold assets (see No enforcement of award against alter egos – #681) runs counter to India’s obligations under both the India-Mauritius BIT and the NY Convention, and (ii) that India had, through these treaties, necessarily submitted to the jurisdiction of domestic courts at the award recognition and enforcement stage, which constituted an express waiver of immunity and satisfied the requirements that the waiver be certain, unequivocal and unconditional. For the English Court, however, international jurisprudence holds that “state immunity occupies an important place in international law and international relations” and this needed to be taken into account in deciding the “narrow, but important” issue of whether or not a state has waived immunity through a treaty.
Both courts’ reasoning is based on their analysis of international law obligations and rights – but the context that informed their respective interpretations appears to be different. The Quebec court may be taken to have focused more on compliance with the object and purpose of the NY Convention (in line with the final words of the Vienna Convention on the Law of Treaties at Article 31(1)). The English Court, however, may be taken to have focused more on – as the relevant context – the meaning to be given to the visible text of the treaty itself, supplemented by its view of the centrality of state immunity in international law and relations (in line with the first clause of VCLT Article 31(1)).
Further, the English Court appears to have drawn a distinction between the “necessary implication” relied upon by the Quebec court and, informed by its analysis of the importance of state immunity, the more restrained approach the English Court took to questions of implication. The process of implication was said (at paragraph 53) not to arise “in a discrete sense, as it does in the case of implied contractual terms, since it is a question of construing the words relied on to determine whether the necessary threshold of express agreement is crossed”. It is said (again at paragraph 53) to be “implication in the context of a linguistic understanding of the meaning of the words of the treaty”. While the reasoning on this point is not fully clear to me, one interpretation may be that when it comes to interpreting treaties, the English Court has re-emphasized loyalty to the visible text and de-emphasized considerations of a treaty’s object and purpose in international law, considerations which featured more strongly in the Quebec court’s judgment.