Immunity under s1 of the UK State Immunity Act 1978: unaffected by ratification of the New York Convention on its own

In CC/Devas (Mauritius) Ltd & Ors v Republic of India [2025] EWHC 964 (Comm) (17 April 2025), the English Commercial Court found that ratification of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (NYC) by India did not constitute consent by "prior written agreement" to the English court's adjudicative jurisdiction under s. 2(2) of the State Immunity Act (SIA).

This is in contrast to the position adopted by the Court of Appeal in relation to ratification of the Convention on the Settlement of Investment Disputes between States and Nationals of Other states, 1965 (ICSID Convention) in Infrastructure Services Luxembourg SARL v The Kingdom of Spain 1 Lloyd's Rep 66 (covered in our blog here). There, the Court of Appeal held that ratification of the ICSID Convention would constitute "prior written agreement" to the Court's jurisdiction under s. 2(2) of the SIA.

Background

The case arose from an arbitration between the Republic of India (Respondent) and various Mauritian entities (Claimants) under the 1998 Mauritius-India Bilateral Investment Treaty (BIT). The tribunal found that India had breached its obligation under the BIT to accord fair and equitable treatment in relation to its annulment of a contract between Devas Multimedia Private Limited (Devas) and a company wholly owned by the Indian Government (Antrix), for the lease of a proportion of India's S-Band spectrum on two Indian satellites (the Devas Contract). The tribunal issued two awards.

The Claimants sought to enforce the awards in the UK under s. 101 of the Arbitration Act 1996 which allows for NYC awards to be enforced in the same manner as a judgment or order of the court. India sought to have the without notice enforcement order set aside, on the basis that (i) it was immune from the jurisdiction of the English Court under s. 1 of the SIA and (ii) the s. 9 SIA exception to state immunity (where a state has agreed in writing to submit a dispute to arbitration) did not apply, as India disputed that there was a valid  agreement to arbitrate (which question is subject to proceedings before the Dutch courts, the courts of the seat of arbitration).

The question which came before the Court for preliminary determination was whether India, by consenting under Article III of the NYC to the Courts of the UK recognising and enforcing the awards has thereby, by "prior written agreement", submitted to the adjudicative jurisdiction of the English Courts for the purposes of s. 2(2) of the SIA.

Article III of the NYC provides as follows:

"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 Court's decision

The Court concluded that ratification of the NYC does not constitute a "prior written agreement" by which a Contracting State submits to the jurisdiction of the English Court for the purposes of s. 2(2) SIA. In summary:

1. The travaux préparatoires had been understood as demonstrating that the delegates did not intend to preclude an immunity-based argument in enforcement actions against States and the Court had not been presented with anything to the contrary. Further, the commentary is overall to the effect that the NYC does not preclude immunity-based arguments;
2. The NYC is silent on immunity, whereas Article 55 of the ICSID Convention recognizes that nothing in Article 54 derogates from the law in force in any Contracting State relating to immunity of that State or of any foreign State "from execution", i.e. Contracting States submit to adjudicative jurisdiction (as was found in Infrastructure Services);
3. Article III of the NYC preserves state immunity "by its own terms", because the obligation on a “Contracting State” is expressed to be “in accordance with the rules of procedure of the territory where the award is relied upon” (the same is not true of the ICSID Convention). State immunity as a principle of international law is "procedural" in character (see Germany v Italy, Arrest Warrrant of 1 April 2000 (Congo v Belgium). Further, it is established in English law that “State immunity is a procedural rule going to the jurisdiction of a national court. It does not go to substantive law” (Jones v Saudi Arabia, and other authorities). The Court rejected the Claimants' contention that "rules of procedure" in the NYC should be interpreted as confined to questions as to the form of the request for enforcement and competent authority, as set out in the English Civil Procedural Rules; and
4. Article III on its own is not a waiver of immunity applying the English law test. A waiver of state immunity by treaty or convention must always be express (Pinochet (No 3) [2000] 1 AC 147), and expressed in a clear and recognisable manner, such as by an unequivocal agreement.

Commentary

This is a relatively narrow decision on a point of law but an important one, given that the question of whether ratification of the NYC by a State would, on its own, waive immunity from adjudicative jurisdiction under s. 1 SIA was considered but not decided in Infrastructure Services. In reaching its decision, which drew heavily on the wording of Article III, the Court emphasised the importance of state immunity in international law and international relations in determining the question of waiver, a proper approach to which does not undermine or contradict the "enforcement friendly aspect of the NYC".

It follows from this decision that there is now a dichotomy between the position in relation to ICSID awards and the position in relation to NYC awards, when it comes to whether a State has waived its immunity. Particularly given the extraordinary delays to enforcement which may be occasioned by state immunity defences, this presents a further reason why, if it has the choice, an investor may wish to arbitrate under the auspices of ICSID, rather than proceeding outside the ICSID system and relying on the NYC for enforcement of any eventual award.

Whereas these proceedings arose from an award under a treaty, the effect of the Court's decision is to close a potential route to avoid a state immunity defence for all awards against States being enforced under the NYC, including awards deriving from a contractual dispute. Best practice remains for commercial parties to include (i) a waiver of immunity from adjudicative and enforcement jurisdiction, and (ii) consent to execution over assets, when contracting with a State or separate entity which may benefit from immunity.

The authors would like to thank Zhou Yang for his contribution to this post.