The English Commercial Court Upholds India’s State Immunity in Relation to Enforcement of an Investment Treaty Award

In CC/Devas Mauritius Ltd v The Republic of India, the applicant (CC/Devas) applied to the English Commercial Court for enforcement of an award (Award) obtained against India in an investment treaty arbitration under the Mauritius-India BIT.

In the previous International Arbitration Quarterly, we reported on the decision of the Full Court of the Federal Court of Australia upholding India’s right to state immunity to the jurisdiction of the Australian courts under the Foreign States Immunities Act 1985 (FSIA) thereby preventing the Australian court from enforcing the Award against India under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention).

The English Commercial Court has reached a similar decision. The Court has also upheld India’s right to state immunity to the jurisdiction of the English courts under the State Immunity Act 1978 (Act), thereby preventing enforcement of the Award under the New York Convention by the English courts.

India claimed that it was immune to the jurisdiction of the English courts arguing that it had not waived immunity to enforcement of awards under the New York Convention due to a reservation it had made to the New York Convention, known as the “commercial reservation“. The reservation provides the New York Convention only applies to enforcement of awards relating “to differences arising out of legal relationships whether contractual or not, which are considered commercial under” the law of India. 

State Immunity Act 1978

Under the Act, a State has immunity from the jurisdiction of the English courts unless an exception applies (section 1). 

One of the exceptions is that the State has submitted to the English courts “by prior written agreement” (section 2(2)). A prior written agreement may be an arbitration agreement to which the State is party.  As the definition of “agreement” includes treaties (section 17), the exception may arise from a treaty such as the Convention. 

State immunity is a procedural matter relating to the jurisdiction of the Court.

Court’s decision

The Court confirmed that a waiver of state immunity must be express: it must be “expressed in a clear and recognisable manner, as by an unequivocal agreement“.¹ In Infrastructure Services Luxembourg SARL v The Kingdom of Spain [2025] 1 Lloyd’s Rep 66, the Court of Appeal commented that:

By ratifying the New York Convention, States may waive the right to state immunity in relation the jurisdiction of the courts of another State (who is party to the New York Convention) in relation to enforcement of an award in that State under the New York Convention. Article III of the New York Convention provides that that:

However, the Court emphasised that ratification of the New York Convention is not, on its own, a waiver of state immunity.³ In other words, there may not be a waiver of state immunity to jurisdiction, or such waiver may be qualified by reservations made by the State to the New York Convention. 

In the present case, India had not waived state immunity with respect to the enforcement of awards essentially relating to non-commercial disputes. India had only waived immunity with respect to the enforcement of an award that relates to a dispute arising out of a relationship that is considered to be commercial under the law of India.

The Court noted that CC/Devas did not make any arguments or provide any evidence as to whether the dispute fell within the commercial reservation and that it was difficult for the English courts to determine whether the dispute was commercial under the laws of India.

The Court also emphasised that the decision should not be taken as undermining the arbitration friendly approach of the English courts.

Leave for appeal

Leave for appeal has been granted to CC/Devas.  The High Court of Australia has also granted special leave to CCDM to appeal the decision of the Full Federal Court to the High Court.

Amelia Chadwick, Paralegal, Sydney, assisted with the preparation of this briefing.

Footnote

1. Infrastructure Services Luxembourg SARL v The Kingdom of Spain [2025] 1 Lloyd’s Rep 66 at [84] in CC/Devas (Mauritius) Ltd v Republic of India [2025] EWHC 964 at [50].
2. Infrastructure Services Luxembourg SARL v The Kingdom of Spain [2025] 1 Lloyd’s Rep 66 at [92] in CC/Devas (Mauritius) Ltd v Republic of India [2025] EWHC 964 at [53]
3. CC/Devas (Mauritius) Ltd v Republic of India [2025] EWHC 964 at [107].