Yesterday, the Court of Appeal in England handed down a significant judgment on the question of the enforcement of arbitral awards against sovereign states.
In CC/Devas (Mauritius) Ltd & Ors v The Republic of India [2026] EWCA Civ 797, the question for the court was whether by signing the New York Convention India had agreed to waive its immunity from adjudication in England.
If there had been no waiver, then India would be able to run an argument that because the tribunal in the underlying investment treaty arbitration had not had jurisdiction, then the “arbitration exception” to state immunity did not apply. It would give India an opportunity to fight the issue of jurisdiction which had been lost in the arbitration.
If there had been a waiver, then questions based on the “arbitration exception” would not arise. There would be no adjudicative immunity and the case could proceed to enforcement or execution.
The case turned on Article III of the New York Convention, which reads:
“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” (emphasis added).
For the Court of Appeal, if sovereign immunity fell within “the rules of procedure” then there had been no waiver by signing the Convention.
The Court of Appeal in a fairly strident and unanimous judgment followed a range of Supreme Court decisions, decisions of the International Court of Justice, and a recent decision of the High Court of Australia, to hold that state immunity does fall within the rubric of “rules of procedure”.
Accordingly, there had been no waiver by India of its sovereign immunity by prior agreement, and it will be able open to India to now argue that because the tribunal had been wrong to find it had jurisdiction, the “arbitration exception” to the state’s immunity does not apply.