English Court Of Appeal Confirms New York Convention Ratification Does Not Waive State Immunity In Enforcement Proceedings

The Court of Appeal has dismissed the appeal in CC/Devas (Mauritius) Ltd & Others v The Republic of India [2026] EWCA Civ 797, holding that India's ratification of the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) was not a submission to the jurisdiction of the English courts.

Applying the test for the waiver of state immunity confirmed by the English Supreme Court in The Kingdom of Spain v Infrastructure Services Luxembourg SARL (see our previous blogpost here), Lord Justice Phillips, with whom Lord Justice Lewison (who wrote a concurring opinion) and Lord Justice Newey agreed, holding that Article III of the New York Convention did not amount to a waiver of state immunity. Central to the Court's reasoning was its conclusion that state immunity forms part of the "rules of procedure" preserved by Article III. As a result, the obligation to recognise and enforce awards under Article III remains subject to applicable domestic immunity rules, including state immunity.

Background

The appeal was brought by Mauritian award creditors (Appellants) seeking to enforce two arbitral awards (Awards) following Hague-seated UNCITRAL arbitration proceedings against India pursuant to the Mauritius-India bilateral investment treaty.

India argued at first instance (see our previous blogpost here) that leave to enforce the Awards ordered by the English courts should be set aside since India benefited from state immunity under section 1 of the State Immunity Act 1978 (SIA). The Appellants argued that by ratifying the New York Convention (particularly, Article III) India had submitted to the English courts' jurisdiction by "prior written agreement" pursuant to section 2(2) of the SIA, therefore waiving its state immunity.

Article III of the New York Convention provides the following: "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".

Sir William Blair in the Commercial Court rejected the Appellants' argument, holding that India's ratification of the New York Convention did not amount to a submission to the jurisdiction under section 2(2) of the SIA. The Appellants subsequently appealed to the Court of Appeal.

Court of Appeal Decision

The applicable test

The Court of Appeal applied the test confirmed by the Supreme Court in Infrastructure Services: "If the express words used amount, on their proper construction, to an unequivocal agreement by the state to submit to the jurisdiction, that is sufficient to satisfy section 2(2) of the SIA, even if the words 'submit' and 'waiver' are not used".

In that case, the Supreme Court decided that Article 54(1) of the Convention on the Settlement of Investment Disputes between States and nationals of other States 1965 (ICSID Convention) did satisfy section 2(2) of the SIA, and States party therefore waived their state immunity from the adjudicative jurisdiction of the English courts. The Appellants argued that the same approach should be taken in this case given the pro-enforcement bias of the New York Convention and the similarity of wording in Article III of the New York Convention and Article 54(1) of the ICSID Convention.

The Court of Appeal rejected this argument and distinguished the Supreme Court's decision in Infrastructure Services on the following bases:

• A factor in the Supreme Court's decision was that the ICSID Convention deals necessarily with awards involving States party, whereas the coverage of the New York Convention was much broader.
• It was important to the Supreme Court that the ICSID Convention expressly preserves state immunity from execution, which the New York Convention does not.
• The Supreme Court indicated that Article 54 of the ICSID Convention – unlike the New York Convention – was a self-contained scheme for producing binding awards.
• Unlike Article 54(1) of the ICSID Convention, Article III of the New York Convention provides that the States party must recognise arbitral awards as binding "in accordance with [their] rules of procedure".

The Court of Appeal therefore had to determine the meaning of "rules of procedure" in Article III of the New York Convention, and whether this included state immunity. The Court considered this issue to be central to the appeal. If state immunity formed part of the "rules of procedure" preserved by Article III, the Convention would preserve rather than waive immunity. The Court therefore focused on whether state immunity fell within that phrase.

The meaning of "rules of procedure"

The Court of Appeal considered state immunity to be a rule of procedure in English law, relying on the precedents set by the Supreme Court in Benkharbouche v Embassy of the Republic of Sudan and the House of Lords in Jones v Ministry of the Interior for the Kingdom of Saudi Arabia.

The Appellants argued that "rules of procedure" should be read narrowly so that it excludes state immunity since: (i) Lord Sumption in Benkharbouche opined that the "dichotomy between procedural and substantive rules is not always as straightforward as it sounds" and "state immunity is not procedural in the sense that the organisation and practices of the court are procedural"; (ii) Article III was so clearly a submission to jurisdiction that the reference to "rules of procedure" did not counteract this; and (iii) "rules of procedure" should be interpreted in light of the evolution of state immunity from absolute to restrictive and the increase in number of arbitral awards to which states are a party.

The Court of Appeal rejected the Appellants' argument. It decided that the only workable definition for "rules of procedure" was: "a rule which, whether technically procedural or substantive in character, has the effect of barring a claim for reasons which do not go to its legal merits", as set out by Lord Sumption in Benkharbouche. This included state immunity.

It also emphasised the importance of uniformly interpreting treaties across countries, and considered persuasive the decisions of the High Court of Australia in CCDM Holdings LLC v Republic of India [2026] HCA 9 (see our previous blogpost here), the German Federal Court of Justice in SchiedsVZ 2006 44 and the US District Court in Global Voice Group SA v Republic of Guinea 2025 US Dist LEXIS 28564. All three courts had decided that ratification of the New York Convention was not a waiver of state immunity.

On that basis and in alignment with such foreign court decisions, the Court of Appeal considered "rules of procedure" to encompass state immunity. Consequently, Article III did not amount to a submission by India to the jurisdiction of the English courts.

Comment

The Court of Appeal's decision has now provided authoritative appellate guidance on an important point of English law and maintains the international consensus among the Australian, German and US courts that States party do not waive their state immunity by ratifying the New York Convention.

In reaching its decision, the Court of Appeal drew a principled distinction between the ICSID Convention, which contains express provisions regarding immunity, and the New York Convention, which does not. In that light, the built-in waiver of adjudicative immunity under the ICSID Convention may be a material consideration for investors when selecting an arbitral framework for the resolution of investment disputes against States, immunity from execution is expressly preserved by its Article 55.

Investors contracting with states or state-owned entities that benefit from state immunity should always seek to ensure that their agreements contain express waivers of both adjudicative immunity and immunity from execution.

The authors would like to thank Mallika Savara for her contribution to this post.