English Court of Appeal rules that signing the New York Convention does not waive state immunity from adjudication

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.

Eleventh Circuit Expands Standards for Vacatur of International Arbitration Awards

On April 13, 2023, the United States Court of Appeals for the Eleventh Circuit overturned decades of precedent in determining the grounds that can be asserted to vacate an arbitral award governed by the New York Convention (the “Convention”)[1]. The Eleventh Circuit in Corporación AIC v. Hidroelectrica Santa Rita, sitting en banc, held that in a case under the Convention where the United States is the governing jurisdiction, the grounds for vacatur of a domestic award are set out in domestic law, currently Chapter 1 of the Federal Arbitration Act[2] (“FAA”).[3] In doing so, the Eleventh Circuit overruled the two prior controlling cases on the issue and settled a circuit split, realigning their opinions with that of its sister circuits. This decision—which expands the grounds for challenging arbitration awards beyond those provided in the Convention—could have significant implications on parties choosing the Eleventh Circuit as the seat of arbitration moving forward.

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Arbitration: the Brexit get out of jail free card?

One of the most useful assets in the classic board game Monopoly is the famous get out of jail free card. A player who finds themselves in jail can utilize it to ‘free’ themselves, almost immediately, but more importantly without paying a monetary penalty.

But what has Monopoly got to do with Brexit or arbitration? Whilst the similarities may not be immediately obvious, for commercial agreements made after 11:00 pm on 31 December 2020, jurisdiction clauses that specify arbitration are in many ways a legal get out of jail free card.
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