Court makes groundbreaking ruling on sovereign immunity and execution of judicial orders
In a landmark ruling on July 25, 2016, and October 13, 2020, the Commercial Court in London determined that India's participation in the New York Convention 1958 (NYC) could imply a waiver of state immunity, allowing for the enforcement of arbitral awards against the Republic of India in UK courts.
The case in question, CC/Devas et al. v The Republic of India [2025] EWHC 964 (Comm), revolved around the question of whether India had submitted to the adjudicative jurisdiction of the English courts by its ratification of the NYC. The court held that ratification of Article III of the NYC is not, on its own, a waiver of state immunity by India, as a waiver of state immunity must be express and unequivocal.
However, the court clarified that waiver of immunity does not require explicit "consent" language; it can be inferred from a state's conduct, such as agreeing to arbitration under the NYC framework. In this case, India had agreed to arbitration under the 1998 India-Mauritius BIT, and the ratification of the NYC was considered as a "prior written agreement" for the purposes of s.2(2) of the UK State Immunity Act (SIA).
The ruling aligns with contemporary UK jurisprudence emphasizing the importance of upholding international arbitration agreements and enabling enforcement despite sovereign immunities traditionally granted under the SIA. The judgment is significant for its interpretation of s.2(2) of the SIA and what constitutes a "prior written agreement" in proceedings relating to the recognition and enforcement of New York Convention awards.
The Commercial Court's judgment in CC/Devas et al. v The Republic of India [2025] EWHC 964 (Comm) affirmed that state immunity under the UK State Immunity Act 1978 (SIA) can be limited where the foreign state has agreed to arbitrate and is subject to the NYC, enabling enforcement of arbitral awards in UK courts.
The ongoing enforcement proceedings also involve a question as to whether the exception to immunity in s.9 of the SIA applies, which provides that where a State has agreed in writing to submit a dispute to arbitration, the State is not immune as respects proceedings in the courts of the United Kingdom which relate to the arbitration.
The Republic of India claimed state immunity under the UK State Immunity Act, 1978 (SIA), and the enforcement proceedings were commenced against the Republic of India in 2021. White & Case represents the Republic of India in these proceedings.
Notably, the judgment does not determine whether the exception to immunity in s.9 of the SIA applies in the ongoing enforcement proceedings. The case serves as a precedent for future cases involving the enforcement of arbitral awards against foreign states that have ratified the NYC.
The contributors to the case include experts in International Arbitration, Sovereigns, Litigation, United Kingdom, Western Europe, India, Asia-Pacific, Mining & Metals, Energy, Financial Institutions, and Business & Human Rights. The judgment was contributed to by Andrea Menaker, Emiko Singh, William Obree, Subhiksh Vasudev, and Manal Sanai.
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