Tom Snelling and Oliver Steeple discuss the English High Court, the New York Convention and State Immunity

On 17 April 2025, Sir William Blair held in CC/Devas et al. v The Republic of India [2025] EWHC 964 (Comm) ("Devas v India") that India had not waived its state immunity in relation to the enforcement of two bilateral treaty awards solely by reason of India's ratification of the NYC. Further, as state immunity was a procedural rule under both English and international law, the reference to "rules of procedure" in Article III NYC preserved India's state immunity.

The decision in Devas v India contrasts to that in the jointly-heard appeals in Infrastructure Services Luxembourg S.À.R.L. v Kingdom of Spain and Border Timbers Limited v Republic of Zimbabwe [2024] EWCA Civ 1257 ("Infrastructure Services") decided in London a few months earlier. In those appeals, the Court of Appeal held that ratification by Spain and Zimbabwe of the 1965 Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States ("ICSID Convention") did constitute a submission (for the purposes of s.2 of the State Immunity Act 1978 (“SIA”)) to the enforcement jurisdictions of all contracting States. Hence, the decision means that States cannot oppose the registration of ICSID awards against them in England and Wales on the grounds of state immunity.

On 16 May 2025, in a consequential judgment (CC/Devas (Mauritius) Ltd & Ors v The Republic of India (Re Consequential Matters) [2025] EWHC 1189 (Comm)), Sir William Blair granted the Claimants in Devas v India permission to appeal because the issue in that case has implications for state immunity not limited to the dispute in that case. In granting permission, Sir William Blair referenced the appeal in Infrastructure Services pending before the Supreme Court. In Infrastructure Services, the Court of Appeal identified doubts as to whether the conclusion it reached on the ICSID Convention would be the same under the NYC.

Background

The underlying dispute in Devas v India arose from a 2005 contract between Indian registered Devas Multimedia Private Limited ("Devas") and Antrix Corporation Limited ("Antrix"), a company wholly owned by the Indian government. Under the agreement, a proportion of India's spectrum used for communications between satellites and electronic devices was leased to Devas to create a hybrid communications platform for multimedia services across India. There was no waiver of state immunity in the agreement.

In 2011, the agreement was terminated after India chose to terminate the spectrum project and annul the agreement to preserve spectrum for national purposes. In 2012, Devas' Mauritian shareholders commenced arbitration against India pursuant to Article 3 of the UNCITRAL rules and Article 8 of the Mauritius-India BIT which resulted in jurisdiction and quantum awards against India in 2016 and 2020, respectively ("BIT Awards").

SIA and NYC

Under s.1 SIA, States are immune from the jurisdiction of the Courts in England (and the rest of the UK) except as provided by ss.2-11 SIA. The exception to immunity relevant to this dispute is s.2(2) SIA, which provides that States may submit to the jurisdiction of the Courts here after the dispute giving rise to the proceedings has arisen or by a prior written agreement. Also of relevance is the exception to immunity at s.9 SIA. This provides that where States agree in writing to submit a dispute which has arisen, or may arise, to arbitration the State is not immune as respects proceedings in UK Courts which relate to the arbitration.

The objective of the NYC is to ensure that arbitral awards made in one contracting State are recognised and enforced in other contracting States. Relevant to Devas v India is Article III, which provides that "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."

Proceedings

In June 2021, the Claimants obtained in London a 'without notice' order to enforce the BIT Awards under s.101 Arbitration Act 1996. In May 2022, India applied to set aside that order on the basis that it is immune from the jurisdiction of the English courts under s.1 SIA, and that s.9 SIA does not apply as India had not agreed to submit the relevant disputes to arbitration.

The question Sir William Blair needed to decide was whether India submitted to the adjudicative jurisdiction of the English Courts by prior written agreement within the meaning of s.2(2) SIA by its ratification of the NYC and thereby its consent under Article III NYC to the English Court recognising and enforcing the BIT Awards. The issue was determined on a preliminary basis.

Parties' Arguments

The Claimants' primary argument was that India's ratification of the NYC constituted a waiver of immunity for the purposes of s.2(2) SIA because by Article III NYC India agreed to "recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon." India's consent by way of ratification, the Claimants contended, was express. It followed that India agreed to: (i) UK Courts recognising as binding and enforcing arbitral awards within the scope of the NYC, including the BIT Awards; and (ii) those courts having adjudicative jurisdiction to take these steps.

India's primary argument in response was that it did not submit to the jurisdiction within the meaning of s.2(2) of the SIA as ratification of the NYC is not a "prior written agreement" to submit to the jurisdiction for the purposes of enforcement of the BIT Awards or otherwise. India also contended the alleged "prior written agreement" was entered into before the SIA came into force and so the exception in s.2(2) did not apply.

Sir William Blair, in weighing these arguments, considered the approach taken in other jurisdictions, especially the US. India cited a recent judgment of the D.C. Circuit in which the Court had explicitly rejected the Claimants' contention that Article III NYC is alone sufficient to waive immunity. In that case, the Court had simply said "no arbitration agreement, no waiver", which reflected India's argument and the wider US practice that States do not waive immunity (or submit to the jurisdiction) merely by becoming party to the NYC.

Application of Infrastructure Services

The Claimants in Devas v India relied heavily on Infrastructure Services. In that case, Phillips LJ held that Spain and Zimbabwe, by ratifying the ICSID Convention, waived their state immunity because "the wording of Article 54 of the [ICSID] Convention is just as clearly an agreement by Contracting States, including Spain and Zimbabwe, to waive immunity and submit to the jurisdiction of the courts of the United Kingdom … sufficient for" s.2(2) of the SIA.

The Claimants contended that Infrastructure Services was "highly persuasive" of the proper interpretation of NYC Article III because Article 54 of the ICSID Convention, which provides "Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State …", is materially the same.

India relied on Infrastructure Services to contend that Article III NYC preserves immunity by its own terms because any obligation on any "Contracting State" is expressed to be only "in accordance with the rules of procedure of the territory where the award is relied upon." Further, the rules of state immunity are procedural in that state immunity is immunity from jurisdiction, not liability. India relied upon seven English cases (excluding ICSID cases) since 1978 where States claimed immunity in relation to the enforcement of awards in which it was not argued that a State submits under s.2(2) SIA merely by becoming party to the NYC.

Notwithstanding the parallels, the Article III NYC question was not decided in Infrastructure Services and Sir William Blair did not therefore in Devas v India accept the Claimants' submission that Infrastructure Services is "highly persuasive of the proper interpretation of Article III of the NYC, given the close similarity of language with there being no material difference." Phillips LJ's distinctions between the language in Article III NYC and Article 54 ICSID Convention, and in particular the point that the NYC references rules of procedure, were relied on by Sir William Blair in this respect.

Outcome

Sir William Blair ultimately agreed with India that by solely ratifying of the NYC India did not submit under s.2(2) SIA because this step did not amount to a "prior written agreement." His reasons included that: (i) there was no intention by the NYC drafters to preclude immunity-based arguments; (ii) under the established classification of state immunity in English and international law, the reference to "rules of procedure" in Article III NYC preserves state immunity in its own terms; and (iii) the ratification of the NYC, including Article III, is not, on its own, a waiver of state immunity by India under the English law test for waiver. In this regard, the NYC and ICSID Convention are different treaties subject to different interpretations.

Waiver of state immunity by treaty "must always be express, and expressed in a clear and recognisable manner, as by an unequivocal agreement." Sir William Blair proposed this test within the commercial context in which waiver of immunity is contractual, not by treaty and the extent to which immunity is waived is a matter of commercial bargain. This is an interesting point as the comparative bargaining power in negotiations is often dynamic and, in respect of some high-profile nations, may turn on whoever is Head of State at relevant times in the deal-making.

Sir William Blair held that state immunity was a procedural not substantive rule, contrary to the Claimants' position. These rules determine whether the courts in one State may exercise jurisdiction in respect of another. In concluding that state immunity is not waived by NYC ratification and is applicable in the NYC regime, Sir William Blair stressed "the nature of state immunity as one of the fundamental principles of the international legal order" and the "proposition that state immunity is a general rule of customary international law to which other states have an obligation to give effect." He did not wish to contradict the "enforcement friendly" aspect of the NYC, which is its purpose and the reason for its success.

Sir William Blair also indicated that, as a practical consideration, under s.9 SIA states are not immune where they have agreed in writing to arbitration in proceedings which relate to the arbitration. To avoid duplication, where the State party disputes the arbitration agreement (as is the case with India in this dispute), determination of that issue for state immunity purposes should also be determinative for NYC purposes.

While Devas v India provides welcome confirmation of the position on state immunity arising from ratification of the NYC, Infrastructure Services is being appealed to the UK Supreme Court and, as is apparent from a judgment on consequential matters dated 16 May 2025, the Claimants in Devas v India have been granted permission to appeal by Sir William Blair. For now at least, English law is that: (i) ratification of the NYC does not constitute waiver of state immunity and consent to the jurisdiction of the English Courts under s.2(2) SIA; but (ii) ratification of the ICSID Convention does amount to an automatic waiver of adjudicative immunity.