The High Court of Australia in CCDM Holdings LLC v. Republic of India [2026] HCA 9 has ruled on whether a State waives its immunity from suit by ratifying the New York Convention. The Court held that it does not. Ratification of the New York Convention does not, by itself, amount to a waiver of foreign State immunity. The Court held that any such waiver must be express or clearly implied, and that the Convention contains no clear indication of such an intention.
The decision is consistent with the recent position taken in England in CC/Devas v. Republic of India [2025] EWCH 964 (Comm), where the English High Court held that India’s ratification of the New York Convention did not amount to a waiver of immunity from adjudication. However, the position in England remains not settled as the case has been appealed to the Court of Appeal and judgement is pending. The judgement in CCDM Holdings LLC v. Republic of India therefore forms part of a developing body of case law on the limits of treaty-based enforcement where the award debtor is a State. It highlights the ongoing tension between the enforcement framework of the New York Convention and domestic rules on State immunity.
Background
The dispute arose from a 2005 agreement between Devas Multimedia Private Limited and Antrix Corporation Limited, a company owned by the Republic of India. The agreement concerned the leasing of satellite spectrum for the provision of broadband services.
In 2011, India terminated the agreement on grounds of national security and public interest. The investors commenced arbitration under the India–Mauritius bilateral investment treaty. A tribunal seated in The Hague found that India had breached its treaty obligations and awarded compensation of more than US$111 million.
The award creditors sought to enforce the award in a number of jurisdictions, including Australia. The proceedings in Australia were brought under the New York Convention as implemented in domestic law. The central issue was whether India could rely on foreign State immunity to resist recognition and enforcement. At first instance, the Federal Court held that India had waived its immunity by ratifying the Convention, reasoning that the obligation to recognise and enforce arbitral awards gave rise to a necessary implication of waiver. The Full Federal Court rejected that approach. It held that no such implication could be drawn, relying primarily on India’s commercial reservation to the Convention. Based on the reservation, any waiver would in any event be confined to disputes characterised as commercial under Indian law, which did not include the present award. The investors appealed to the High Court.
High Court Decision
The High Court dismissed the appeal. It held that India had not waived its immunity from the jurisdiction of Australian courts.
- There exists a presumption of sovereign immunity
The Court began by reaffirming the status of sovereign immunity as a rule of customary international law grounded in the principle of sovereign equality. The Court emphasised that there is “a strong presumption that a foreign State has not abandoned its independence and autonomy by waiving that otherwise preserved immunity.”
- Any waiver must be “clear and unmistakable”
The Court held that any waiver must be “clear and unmistakable.” This sets a high threshold for the establishment of a waiver, and supports a clear presumption in favour of sovereign immunity.
- No express or inferred waiver in the text of the New York Convention
The Court found no express waiver in the text of the New York Convention. It also rejected the argument that waiver could be inferred from the Convention’s obligation to recognise and enforce arbitral awards. Central to the Court’s reasoning was Article III. That provision requires recognition and enforcement to take place “in accordance with the rules of procedure of the territory where the award is relied upon.” The Court held that this language incorporates domestic rules on foreign State immunity. As it explained, “Article III qualifies the obligation of contracting States to enforce arbitral awards by reference to whatever rules of foreign State immunity are adopted by the territory where the award is relied upon.” This reading places the Convention within the framework of domestic law. It treats immunity as a threshold question that remains intact unless clearly displaced. Accordingly, the Courts reasoning suggests that the Convention does not operate as a self-contained enforcement regime in cases involving States.
- Rejection of the extension of ICSID reasoning to the New York Convention
The High Court of Australia previously held in Kingdom of Spain v. Infrastructure Services Luxembourg Sàrl [2023] 275 CLR 292 that the Kingdom of Spain by acceding to the ICSID Convention had waived immunity from recognition and enforcement of arbitral awards. The investors sought to extend that reasoning to the New York Convention. The Court rejected that extension, emphasising differences in both text and structure. The ICSID Convention is directed specifically at disputes involving States and its drafting history shows that immunity was considered directly. Article 55 preserves immunity only from execution. When read with Article 54, this supports the conclusion that Contracting States accept the jurisdiction of domestic courts for recognition and enforcement. By contrast, the New York Convention is framed in general terms and applies to awards involving both private parties and States. It does not address immunity expressly nor does its drafting history reveal any clear intention to do so. The Court therefore concluded that the reasoning applicable to the ICSID Convention is not applicable to the New York Convention.
- Open questions on reservation and scope of the New York Convention
Having found no waiver, the Court declined to determine further issues. It did not decide whether the New York Convention extends to disputes involving the exercise of sovereign authority nor did it address the effect of India’s commercial reservation. The Court considered that these questions should be resolved in a case where they are determinative. This leaves a degree of uncertainty, particularly for investment treaty awards that do not readily fit within a commercial classification.
Key Takeaways
- Absent a “clear and unmistakable” waiver, ratification of the New York Convention does not amount to a waiver of foreign State immunity
- The legal effect of treaty participation depends on the specific design of the treaty.
- A divide is emerging between ICSID and non-ICSID awards in terms of enforceability against States.
- Questions on scope and reservations of the New York Convention remain unresolved.
-Author: Sadie Ovendon
