Devas v India: Court of Appeal confirms no blanket waiver of sovereign immunity under the New York Convention

In CC/Devas (Mauritius) Ltd & Others v The Republic of India [2026] EWCA Civ 797, the Court of Appeal has decided that a state’s ratification of the New York Convention does not of itself amount to a waiver of sovereign immunity. This is an important judgment for both investors and sovereign states when considering approaches to enforcement.

Background

The claimants, Mauritian and US investors, held arbitral awards against India arising from the collapse of a satellite spectrum deal, which the Indian government terminated on national security grounds. An UNCITRAL tribunal under the India–Mauritius BIT found India liable for breaching fair and equitable treatment obligations and awarded the investors over €195m. 

The claimants obtained an order granting permission to enforce the award in England. In response, India invoked sovereign immunity under the State Immunity Act 1978 (SIA). The claimants’ position is that India consented to arbitration and is therefore precluded by s9 of the SIA from relying on state immunity. In addition, they argued that India's ratification of the New York Convention constituted a written agreement to submit to the English courts' jurisdiction under s2(2) of the SIA. This second argument on the New York Convention was considered as a preliminary issue and is the subject of this judgment.

Judgment

The argument specifically concerned Article III of the New York Convention, which provides that a 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 subsequent articles of the New York Convention]”. 

The claimants argued Article III mirrored Article 54(1) of the ICSID Convention, which the Supreme Court held in Infrastructure Services Luxembourg SARL v Kingdom of Spain [2026] UKSC 9 amounted to an unequivocal submission to jurisdiction, such that a sovereign in an ICSID Convention dispute cannot plead state immunity in enforcement proceedings. 

In this case, the CoA rejected any read-across to the New York Convention. The CoA held that the wording “in accordance with the rules of procedure of the territory is relied upon” is an important qualification to Article III. State immunity is a well-established procedural rule of both English and international law. On a plain reading Article III therefore preserves, rather than waives, the right to state immunity. The CoA considered the purposive difference between the ICSID and the New York Conventions: the ICSID Convention was designed specifically to create a system to resolve investor state disputes supported by a reciprocal enforcement regime. The New York Convention is broader and intended to promote recognition and enforcement in contracting states of all awards, regardless of the parties. In those circumstances, clear words would be required to derogate from the principle of sovereign immunity.

Conclusions

The judgment exposes differences in approach to issue of state immunity globally – in the same dispute, Canada has rejected India's immunity claim on different, fact-specific grounds, while the Australian court had already taken the same approach as the CoA. 

However, the decision does not necessarily leave investors without a route to enforcement. The issue, which remains to be determined, is whether India in any event consented to the arbitration, such that it is precluded by s9 of the SIA from invoking state immunity – that will require India to prove that the dispute does not fall within its agreement to arbitrate under the Mauritius – India BIT. If India can successfully win that argument, this decision means it is free to invoke sovereign immunity. 

Whilst this is an interesting judgment offering clarity on the status of sovereign immunity under the New York Convention, states will still be exposed to enforcement proceedings in the English court where they have agreed to arbitrate and are therefore subject to the exception to sovereign immunity under s9 of the SIA. However, if they can show that the relevant dispute did not fall within any agreement to arbitration, then ratification of the New York Convention will not preclude them from relying on state immunity under s2(2) of the SIA.