THE AUTHOR<\/strong>: On 24 June 2026, the Court of Appeal of England and Wales handed down judgment CC\/Devas v. India,<\/em> Judgment of the Court of Appeal of England and Wales [2026] EWCA Civ 797, 24 June 2026<\/a> (\u201cDevas<\/strong>\u201d), dismissing the appeal and reaffirming the limits of state immunity waivers under the New York Convention<\/a>. Two Permanent Court of Arbitration awards under the Mauritius-India Bilateral Investment Treaty (1998)<\/a>, worth \u20ac195 million, were at stake.<\/p>\n\n\n\n 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\u2019s ICSID ruling in Infrastructure Services (Antin) v. Spain,<\/em> Judgment of the Supreme Court of the United Kingdom [2026] UKSC 9, 4 March 2026<\/a> (\u201cInfrastructure 2026<\/strong>\u201d), and days after a High Court of Australia decision on the same question between the same parties.<\/p>\n\n\n\n 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<\/a>. Their case turned on Article III of the New York Convention (1958)<\/a>, which obliges contracting states to enforce arbitral awards in accordance with the rules of procedure of the territory where the award is relied upon.<\/p>\n\n\n\n The Court of Appeal disagreed. Phillips LJ, delivering the lead judgment, observed that \u201crules of procedure\u201d<\/em> in Article III \u201cencompasses state immunity\u201d<\/em>, and accordingly \u201cpreserves state immunity by its own terms\u201d<\/em>. This was in line with the conclusion reached by Sir William Blair in the Commercial Court ([2025] EWHC 964 (Comm))<\/a> below.<\/p>\n\n\n\n Phillips LJ also draws on his own earlier obiter<\/em> observation in the Infrastructure Services v. Spain<\/em> [2024] EWCA Civ 1257<\/a> (\u201cInfrastructure 2024<\/strong>\u201d) judgment to the same effect (a decision examined in an earlier piece<\/a>). He treats this as the starting point rather than the conclusion in Devas<\/em>. 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<\/a><\/em> and Benkharbouche v. Embassy of the Republic of Sudan<\/a><\/em>, and the ICJ\u2019s judgment in Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening)<\/a><\/em>. Lewison LJ\u2019s concurrence is worth reading in its own right. He works through the same distinction independently, citing the characterisation of immunity as \u201cessentially procedural in nature\u201d<\/em> in Jurisdictional Immunities<\/em> and the European Court of Human Rights\u2019 formulation in Al-Adsani v. United Kingdom<\/a><\/em>, before concluding that \u201c..\u201cthe rules of procedure of the territory where the award is relied upon\u201d encompass the law of state immunity in the territory concerned\u201d<\/em>. Interestingly, he also flags a contradiction in the appellants\u2019 position: they accepted that India\u2019s consent to enforcement was subject to the English immunity law, while arguing that the same consent extinguished the immunity itself.<\/p>\n\n\n\n Having failed under Article III<\/a>, the appellants turned to the Supreme Court\u2019s decision in Infrastructure 2026<\/em> (heard with Republic of Zimbabwe v. Border Timbers Ltd<\/em><\/a>). 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) (\u201dICSID Convention<\/strong>\u201d)<\/a>, which obliges contracting states to enforce ICSID awards \u201cas if [they] were a final judgment of a court in that State\u201d<\/em>, amounts to a clear and unequivocal waiver of adjudicative immunity, reasoning that Article 55<\/a>\u2019s separate preservation of execution immunity reinforces rather than undermines the conclusion.<\/p>\n\n\n\n Building on that reading of Articles 54 and 55, the Devas<\/a><\/em> judgment distinguished the two Convention regimes on the point. The ICSID Convention<\/a> deals with awards to which a contracting state is a party, and its silence on rules of procedure allows Article 55\u2019s preservation of execution immunity to carry the weight the Supreme Court gave it \u2013 a carve-out that, per Lewison LJ, \u201conly makes sense [\u2026] if a contracting state is subject to the adjudicative jurisdiction of a different state.\u201d<\/em> 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 \u201cthe rules of procedure of the territory where the award is relied upon\u201d<\/em>. The result is that ICSID ratification is an unequivocal submission to jurisdiction, while New York Convention ratification is not.<\/p>\n\n\n\n Phillips LJ traced this to the Conventions\u2019 differing purposes. The purpose of the New York Convention is \u201cto facilitate and encourage international arbitration […] regardless of the parties\u201d<\/em>.In contrast, ICSID is \u201cto promote and encourage investment\u201d<\/em> by guaranteeing enforcement against the contracting states themselves.<\/p>\n\n\n\n India invoked a reservation limiting the New York Convention to disputes \u201cconsidered as commercial under the laws of India\u201d<\/em>. 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.<\/p>\n\n\n\n The same argument has had a mixed run in Australia. At first instance<\/a>, Jackman J declined to decide the reservation issue, calling it an \u201carid point of taxonomy\u201d<\/em>. It succeeded on appeal before the Federal Court<\/a>, reversing the result below. Yet in the High Court of Australia, the case was resolved on the Article III<\/a> ground instead, without needing to revisit or endorse the Federal Court\u2019s reservation-based reasoning.<\/p>\n\n\n\n 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 \u2013 a caution that extends to the wider international picture as well.<\/p>\n\n\n\n It is tempting to describe the Devas<\/a><\/em> 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 \u201cwins\u201d and \u201closses\u201d implies.<\/p>\n\n\n\n Australia now aligns with the United Kingdom. In CC\/Devas v. India,<\/em> Order of the High Court of Australia [2026] HCA 9<\/a>, 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\u2019s ruling as highly persuasive. It is the High Court\u2019s final answer, not the intermediate reasoning, that now sits alongside the English position.<\/p>\n\n\n\n Quebec remains the outlier, but arguably not on the same question. In India v. CCDM Holdings LLC<\/em> (2024 QCCA 1620)<\/a>, the Quebec Court of Appeal found waiver, but relied on a combination of factors: India\u2019s ratification, its consent to arbitrate under the BIT, and its actual participation in the arbitration. The Supreme Court of Canada denied leave to appeal<\/a>.<\/p>\n\n\n\n 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<\/a><\/em>, 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.<\/p>\n\n\n\n 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 \u201cno\u201d 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 \u201cyes\u201d 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.<\/p>\n\n\n\n
Syed Bilal Hussain<\/strong>, Fellow of the Chartered Institute of Arbitrators (FCIArb)<\/strong><\/p>\n\n\n\n
\n\n\n\nDoes Ratification Waive Immunity?<\/strong><\/strong><\/h2>\n\n\n\n
Two Conventions, Two Answers<\/strong><\/strong><\/h2>\n\n\n\n
Commerciality Reservation Question Still Untested<\/strong><\/strong><\/h2>\n\n\n\n
A Less Fragmented Landscape Than It Appears<\/strong><\/strong><\/h2>\n\n\n\n
Strategic Implications for Enforcement Practice<\/strong><\/strong><\/h2>\n\n\n\n
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