CC/Devas (Mauritius) Ltd & Ors v Republic of India

Ratification of the New York Convention does not, by itself, amount to a state’s submission to the adjudicative jurisdiction of the English courts under section 2(2) of the State Immunity Act 1978.

Article III preserves state immunity through its reference to the procedural rules of the territory where enforcement is sought. A treaty waiver of immunity must be express and stated in a clear and recognisable manner. Where the state’s agreement to arbitrate is disputed, the arbitration exception in section 9 remains material. The Convention’s enforcement-friendly purpose does not justify assuming jurisdiction in the absence of consent.

The claim concerned enforcement in England of investment arbitration awards made in favour of Mauritian investors against India under the Mauritius-India bilateral investment treaty. Enforcement orders had been obtained under sections 100 and 101 of the Arbitration Act 1996. India challenged them on state-immunity grounds.

The court was directed to determine as a preliminary issue whether India had submitted to the adjudicative jurisdiction of the English courts by prior written agreement under section 2(2) of the State Immunity Act 1978, solely through ratification of the New York Convention and Article III’s obligation to recognise and enforce qualifying awards. Issues under section 9, including whether India had agreed to arbitrate, remained outstanding.

1. Question determined. India had not submitted to the adjudicative jurisdiction of the English courts merely by ratifying the New York Convention. Ratification did not, absent a valid arbitration agreement, constitute consent by prior written agreement under section 2(2) of the State Immunity Act 1978 (paras [80]–[88], [106]–[108]).
2. Article III. The reference in Article III to enforcement in accordance with the procedural rules of the territory where the award is relied upon preserved state immunity. State immunity is a procedural rule going to jurisdiction, rather than substantive liability. The court accepted the doubts expressed by the Court of Appeal in Infrastructure Services about treating Article III as equivalent to Article 54(1) of the ICSID Convention.
3. Waiver. Treaty or convention waiver must be express and stated in a clear and recognisable manner. The absence of the words submit or waiver is not decisive if the treaty’s proper construction establishes an unequivocal agreement, but Article III did not cross that threshold on its own (paras [50]–[53], [80]–[85]).
4. Context and practical effect. Section 9 separately removes immunity for proceedings relating to an arbitration where the state has agreed in writing to submit the dispute to arbitration. India’s challenge to the arbitration agreement therefore remained relevant. The decision did not undermine the enforcement-friendly purpose of the New York Convention.
5. Further points. The court considered, but did not decide, India’s arguments concerning the Convention’s scope, India’s commercial reservation and section 23(3)(a) of the SIA. The judge indicated that the first-instance Australian approach to the Convention’s application to investor-State awards was persuasive, but that the reservation issue required consideration of Indian law and evidence (paras [89]–[105]).

First-instance determination of a preliminary question in ongoing enforcement proceedings. The judgment records that Sir Nigel Teare had directed the progression of the proceedings and formulated the section 2 question by order dated 23 October 2024.