THE AUTHOR:
Syed Bilal Hussain, Fellow of the Chartered Institute of Arbitrators (FCIArb)
On 24 June 2026, the Court of Appeal of England and Wales handed down judgment CC/Devas v. India, Judgment of the Court of Appeal of England and Wales [2026] EWCA Civ 797, 24 June 2026 (“Devas”), dismissing the appeal and reaffirming the limits of state immunity waivers under the New York Convention. Two Permanent Court of Arbitration awards under the Mauritius-India Bilateral Investment Treaty (1998), worth €195 million, were at stake.
The decision sits at the intersection of sovereign immunity, treaty interpretation, and the enforcement of investment arbitration awards in the UK. It arrives just months after the Supreme Court’s ICSID ruling in Infrastructure Services (Antin) v. Spain, Judgment of the Supreme Court of the United Kingdom [2026] UKSC 9, 4 March 2026 (“Infrastructure 2026”), and days after a High Court of Australia decision on the same question between the same parties.
Does Ratification Waive Immunity?
The appellants argued that India, by ratifying the New York Convention, had submitted to the adjudicative jurisdiction of the English courts, thereby waiving sovereign immunity under Section 2(2) of the State Immunity Act 1978. Their case turned on Article III of the New York Convention (1958), which obliges contracting states to enforce arbitral awards in accordance with the rules of procedure of the territory where the award is relied upon.
The Court of Appeal disagreed. Phillips LJ, delivering the lead judgment, observed that “rules of procedure” in Article III “encompasses state immunity”, and accordingly “preserves state immunity by its own terms”. This was in line with the conclusion reached by Sir William Blair in the Commercial Court ([2025] EWHC 964 (Comm)) below.
Phillips LJ also draws on his own earlier obiter observation in the Infrastructure Services v. Spain [2024] EWCA Civ 1257 (“Infrastructure 2024”) judgment to the same effect (a decision examined in an earlier piece). He treats this as the starting point rather than the conclusion in Devas. The point had not previously been decided by an English court and turned on the international law characterisation of immunity as procedural, drawn from Jones v. Ministry of Interior for the Kingdom of Saudi Arabia and Benkharbouche v. Embassy of the Republic of Sudan, and the ICJ’s judgment in Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening). Lewison LJ’s concurrence is worth reading in its own right. He works through the same distinction independently, citing the characterisation of immunity as “essentially procedural in nature” in Jurisdictional Immunities and the European Court of Human Rights’ formulation in Al-Adsani v. United Kingdom, before concluding that “..“the rules of procedure of the territory where the award is relied upon” encompass the law of state immunity in the territory concerned”. Interestingly, he also flags a contradiction in the appellants’ position: they accepted that India’s consent to enforcement was subject to the English immunity law, while arguing that the same consent extinguished the immunity itself.
Two Conventions, Two Answers
Having failed under Article III, the appellants turned to the Supreme Court’s decision in Infrastructure 2026 (heard with Republic of Zimbabwe v. Border Timbers Ltd). There, the Court observed that Article 54(1) of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) (”ICSID Convention”), which obliges contracting states to enforce ICSID awards “as if [they] were a final judgment of a court in that State”, amounts to a clear and unequivocal waiver of adjudicative immunity, reasoning that Article 55’s separate preservation of execution immunity reinforces rather than undermines the conclusion.
Building on that reading of Articles 54 and 55, the Devas judgment distinguished the two Convention regimes on the point. The ICSID Convention deals with awards to which a contracting state is a party, and its silence on rules of procedure allows Article 55’s preservation of execution immunity to carry the weight the Supreme Court gave it – a carve-out that, per Lewison LJ, “only makes sense […] if a contracting state is subject to the adjudicative jurisdiction of a different state.” The New York Convention, by contrast, covers awards regardless of whether a state is a party, and it is silent on state immunity altogether, making enforcement subject to “the rules of procedure of the territory where the award is relied upon”. The result is that ICSID ratification is an unequivocal submission to jurisdiction, while New York Convention ratification is not.
Phillips LJ traced this to the Conventions’ differing purposes. The purpose of the New York Convention is “to facilitate and encourage international arbitration […] regardless of the parties”.In contrast, ICSID is “to promote and encourage investment” by guaranteeing enforcement against the contracting states themselves.
Commerciality Reservation Question Still Untested
India invoked a reservation limiting the New York Convention to disputes “considered as commercial under the laws of India”. India argued that the dispute was not commercial, and that the appellants had failed to establish otherwise. Because Phillips LJ dismissed the appeal on the Article III ground, this argument was never reached. As a result, the commerciality question in relation to such disputes remains untested in England.
The same argument has had a mixed run in Australia. At first instance, Jackman J declined to decide the reservation issue, calling it an “arid point of taxonomy”. It succeeded on appeal before the Federal Court, reversing the result below. Yet in the High Court of Australia, the case was resolved on the Article III ground instead, without needing to revisit or endorse the Federal Court’s reservation-based reasoning.
So, the reservation argument has succeeded once, at intermediate appellate level, but has been bypassed rather than confirmed by every higher court since. For award creditors, this is a reminder to tailor enforcement strategies specific to each jurisdiction – a caution that extends to the wider international picture as well.
A Less Fragmented Landscape Than It Appears
It is tempting to describe the Devas saga as a story of jurisdictional fragmentation. Yet the judgment suggests a more convergent picture on the narrow New York Convention point than a headline count of “wins” and “losses” implies.
Australia now aligns with the United Kingdom. In CC/Devas v. India, Order of the High Court of Australia [2026] HCA 9, the High Court of Australia unanimously held that mere ratification of the New York Convention does not waive immunity. Both Phillips LJ and Lewison LJ treated the High Court’s ruling as highly persuasive. It is the High Court’s final answer, not the intermediate reasoning, that now sits alongside the English position.
Quebec remains the outlier, but arguably not on the same question. In India v. CCDM Holdings LLC (2024 QCCA 1620), the Quebec Court of Appeal found waiver, but relied on a combination of factors: India’s ratification, its consent to arbitrate under the BIT, and its actual participation in the arbitration. The Supreme Court of Canada denied leave to appeal.
The United States courts have also taken the same approach as those in England and Australia. In Global Voice Group SA v. Republic of Guinea, Judge Cobb observed that without an arbitration agreement there can be no waiver of immunity. The decision reinforces the principle that ratification of the New York Convention alone does not suffice.
Taken together, these decisions show that the divergence is narrower than a three-way jurisdictional split. The real question is whether ratification of the New York Convention alone can waive immunity (answered “no” in the UK, Australia, and the US), versus whether ratification combined with a BIT arbitration clause and actual participation in the arbitration can do so (answered “yes” in Quebec). This is a considerably narrower and more defensible divergence than the fragmented global landscape framing suggests. Yet it remains a divergence with practical consequences.
Strategic Implications for Enforcement Practice
- First, there is no automatic waiver under the New York Convention in England. Ratification alone does not strip states of adjudicative immunity before the English courts, a position now shared by Australian and US courts.
- Second, ICSID remains distinct. Its closed, reciprocal enforcement mechanism under Articles 54 and 55 stands apart from the New York Convention’s more open-textured Article III. That clarity, however, stops at the recognition stage. Execution against a state’s assets remains a separate, largely unresolved fight – a point a recent piece has explored in depth.
- Third, what shifts the outcome is participation, not ratification. Quebec’s result turned on India’s BIT consent and active participation in the arbitration, not on New York Convention ratification alone.
- Fourth, for investors and practitioners, the practical lesson is clear: enforcement strategy must be built around what the respondent state actually did, not simply which conventions it signed.
- Finally, reservation remains an open flank. The commerciality reservation has succeeded once in Australia but has been bypassed rather than confirmed since. It may be the next major battleground.
Precision Over Fragmentation
The Devas decision draws a careful line between treaty obligations and sovereign immunity, setting its reasoning in direct contrast with the Supreme Court’s ICSID ruling and in close dialogue with the High Court of Australia’s contemporaneous judgment. ICSID awards benefit from a clear waiver of adjudicative immunity, while New York Convention awards remain subject to procedural safeguards, including immunity defences.
What remains unsettled is narrower than the litigation’s sprawl suggests. Courts across three continents now agree that the New York Convention alone does not waive immunity. The live question is what a state does after it signs: whether it consents to arbitrate, participates in the proceedings, or invokes its own reservations. Devas does not end the immunity debate; it relocates it. A signature opens the door. Only conduct walks through it.
ABOUT THE AUTHOR
Syed Bilal Hussain is a Fellow of the Chartered Institute of Arbitrators (FCIArb) and serves as an arbitrator, mediator, and adjudicator. He is the Managing Partner at Hussain Corporate Counsel and holds an LLM in Dispute Resolution from the University of Aberdeen. He advises Multilateral Development Banks and government authorities, with a focus on institutional reform and dispute resolution modernization in Pakistan. He can be reached at [email protected].
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
