Ratification without Resignation: Have London and Canberra Untangled Sovereign Immunity under the New York Convention?

Can a treaty waive something it never mentions? Stripped to its essentials, that was the question posed before the High Court of Australia and the English Court of Appeal, namely, whether a State’s ratification of the New York Convention ("Convention") amounted to a submission to the jurisdiction of foreign Courts in proceedings for the recognition and enforcement of arbitral awards, notwithstanding the Convention’s silence on sovereign immunity.

The issue here involves a more fundamental conceptual question of whether ratification of the Convention implies the end of a state’s immunity or whether a State can join the Convention’s enforcement mechanism without relinquishing its immunity before foreign Courts. Both recent appellate decisions answer this question in the negative.

In 2026, two appellate Courts adopted a similar approach. On 8 April 2026, the High Court of Australia unanimously decided CCDM Holdings LLC v The Republic of India [2026] HCA 9. On 24 June 2026, the English Court of Appeal did likewise in CC/Devas (Mauritius) Ltd v The Republic of India [2026] EWCA Civ 797. Each held that a State does not surrender its immunity from the adjudicative jurisdiction of a foreign Court simply by ratifying the Convention.

Taken together, these rulings reflect a nascent alignment in common law reasoning that ratification of the Convention does not automatically waive sovereign immunity, while Article III is interpreted in both decisions as deferring to, rather than overriding, sovereign immunity rules.

I.                   One Award, Many Forums

The dispute arising from the Devas-Antrix satellite venture is now familiar. Mauritian investors in an Indian satellite-capacity venture obtained treaty awards against India under the India-Mauritius BIT after the underlying agreement was annulled on national-security grounds. The awards, worth roughly US$111 million, were assigned to CCDM Holdings and its affiliates, who pursued recognition across multiple jurisdictions. Given that the awards were made against India, sovereign immunity first had to be addressed by the award creditors for any consideration of the merits of recognition. India resisted everywhere on immunity grounds, generating a patchwork of outcomes - enforcement permitted in some forums, immunity upheld in others. Australia and England are the latest, and among the most fully reasoned, chapters in that saga.

II.                Canberra: Immunity as a “Rule of Procedure”

Under Australia’s Foreign States Immunities Act 1985 (Cth), a foreign State is presumptively immune, subject to an exception where it has submitted to jurisdiction by agreement. Building on Kingdom of Spain v Infrastructure Services Luxembourg [2023] HCA 11, the High Court insisted that any treaty-based waiver be clear and unmistakeable, drawn from the express words of the instrument or a necessary implication of them. It was consistent with the High Court’s view that the waiver of sovereign immunity cannot be read into any general treaty obligation where there is no expression of intent to change the ordinary immunity regime. The Convention failed that test. Article III requires enforcement in accordance with the “rules of procedure” of the enforcing forum, and the Court read those rules as capable of embracing the local law of State immunity. Because the Convention says nothing express about immunity, ratification alone could not amount to submission.

Crucially, the Court refused to import the ICSID analogy. Although ratification of the ICSID Convention has been treated as waiving adjudicative immunity while preserving immunity from execution, the High Court held that the Convention's text and design support no comparable inference of waiver. Having found no waiver at all, it declined to rule on India’s Article I(3) commercial reservation, and left open whether the arbitration exception in section 17(2) of the Act might give award creditors an alternative route. The decision closed a litigation arc running from Jackman J’s first-instance ruling for the investors ([2023] FCA 1266) through the Full Court’s reversal ([2025] FCAFC 2).

III.      London: The Same Road, Differently Paved

The English Court of Appeal considered whether India’s ratification of the New York Convention constituted a “prior written agreement” submitting it to jurisdiction under section 2(2) of the  UK State Immunity Act 1978.  Phillips LJ (Lewison and Newey LJJ agreeing) said no. Treaty interpretation, he reasoned, is holistic: the opening words of Article III cannot be read in isolation from the qualifying reference to the forum’s rules of procedure. The only workable meaning of “rule of procedure,” in the Court’s view, is one covering any rule that bars a claim for reasons unrelated to its merits — which is precisely how State immunity operates in England.

The Court took care to quarantine the ICSID jurisprudence. It held that the Supreme Court's decision in Infrastructure Services Luxembourg v Kingdom of Spain [2026] UKSC 9 on Article 54(1) of the ICSID Convention could not be read across to Article III of the Convention: the wording, context, and object of the two instruments differ materially, and treating ratification of the New York Convention as a waiver would sweep away both adjudicative and execution immunity - far more than ICSID Convention itself surrenders. Lewison LJ added that, against an international consensus that immunity is procedural, any derogation demands clear words. The Court expressly noted its alignment with the High Court of Australia, and drew support from the Convention’s travaux préparatoires. As at first instance before Sir William Blair ([2025] EWHC 964 (Comm)), the separate section 9 arbitration exception was left for another day. Both Courts rejected any “read-across” from the ICSID Convention to the New York Convention.

IV.       Convergence – and Where it Stops

The similarities between these two cases are notable, though they arise from parallel interpretive approaches rather than any coordinated doctrinal development.  Together, they tend to shift the analysis of immunity away from the Convention itself and towards domestic sovereign immunity legislation. Both courts anchor the analysis in the same clause of Article III; both demand an express or unmistakeable waiver rather than one inferred from the general enforcement obligation; both insist that the New York Convention and ICSID regimes be kept analytically distinct; and both situate their reasoning within a wider common law consensus, the English Court going so far as to cite its Australian counterpart. That represents the real convergence on the question that mattered: ratification, without more, is not submission.

Yet coherence is not unanimity. The Quebec Court of Appeal reached the opposite practical result in the same saga, concluding that India's ratification of the New York Convention, read together with its agreement to arbitrate, was enough to establish waiver under Canada's State Immunity Act.

This is precisely what the term “ratification without resignation” captures in this context. Ratification of the New York Convention represents acceptance of an international enforcement framework for arbitral awards, but not a renunciation of a State’s adjudicative immunity before foreign Courts unless such renunciation is clearly and expressly stated.

V.        The question both benches declined

Neither apex Court resolved the issue that split the Australian Full Court: the effect of a commercial reservation. India ratified the New York Convention subject to the Article I(3) reservation limiting the Convention to disputes considered commercial under Indian law, and the Full Court had decided the case on that ground, holding that the treaty award fell outside it. By ruling that there was no waiver at all, the High Court and the English Court of Appeal made the reservation unnecessary to decide - and left it live for the next case. That matters well beyond India: many States have entered commercial reservations, and investment-treaty awards arising from sovereign acts may not be “commercial,” so the interaction between reservations, waiver and the character of the underlying dispute remains an open and fertile battleground.

VI.       What award creditors should take away

Three points follow. First, issues of immunity must be considered at the outset, not discovered at enforcement: the dispute-resolution architecture of the treaty or contract deserves close scrutiny before capital is committed. Second, creditors should identify an independent gateway to jurisdiction – an arbitration exception (section 9 of the UK  State Immunity Act 1978, section 17(2) of the Australia's Foreign States Immunities Act 1985 (Cth) or an express, specific waiver - rather than relying on the Convention to do that work. Third, the commercial-reservation question should be pleaded and preserved, because it may prove decisive where the no-waiver reasoning would otherwise end the enquiry.

VII.     Conclusion

For the discrete question of whether ratification of New York Convention amounts to waiver, the answer in London and Canberra is a clear no, and may indicate a broader trend in common law reasoning. The circularity in the waiver argument has, at least for now, been resolved. However, two frontiers remain unsettled - the reach of commercial reservations, and the availability of arbitration exceptions - and it is here that the next round of Devas-style litigation is likely to unfold.