Sovereign waiver and arbitral award enforcement: a tale of two treaties

In an article for the New Law Journal, Kamran Rehman and Harriet Campbell consider the Court of Appeal’s decision in CC/Devas (Mauritius) Ltd & Ors v The Republic of India [2026] EWCA Civ 797 (24 June 2026).

The decision highlights a key challenge for parties seeking to enforce arbitral awards against sovereign states, namely state immunity from enforcement. Investors dealing with disputes against sovereign states need to be aware that obtaining an award is only half the battle; enforcing it may be a far longer and more complex process.

The Court of Appeal’s decision in CC Devas v India follows the Supreme Court’s decision in Kingdom of Spain v Infrastructure Services Luxembourg, which held that states that ratify the ICSID Convention waive immunity from adjudication in proceedings to enforce ICSID awards. In CC/Devas, however, the Court of Appeal reached a different conclusion in relation to the New York Convention.

Why the difference?

The court emphasised that the ICSID Convention and the New York Convention serve different purposes.

• The ICSID Convention is specifically designed for investor-state disputes and creates a reciprocal enforcement regime in which states are inherently part of the framework.
• The New York Convention governs the recognition and enforcement of arbitral awards between parties generally (whether the state is party to the dispute or not). The entry into the convention by the state itself does not signal its waiver of immunity.

In CC/Devas, the Court of Appeal held that India’s ratification of the New York Convention did not amount to submission to the jurisdiction of the English courts for the purposes of enforcing an arbitral award against it.

Key points

• Article III of the New York Convention requires enforcement in accordance with the enforcing state’s procedural rules.
• State immunity forms part of those procedural rules under English law and international law.
• Ratifying the New York Convention does not, by itself, waive state immunity.
• The Supreme Court’s reasoning in Spain v Infrastructure Services Luxembourg could not be applied directly to the New York Convention because of the important differences between the two treaties.

Practical implications

For investors and other award creditors, the decision is a reminder that enforcement risk should be assessed at the outset of any dispute.

Key considerations include:

• whether enforcement may ultimately need to be pursued against a sovereign state;
• whether an award falls within the ICSID regime or relies on the New York Convention;
• the potential for immunity challenges in relevant jurisdictions;
• the likely cost, duration and funding requirements of enforcement proceedings.

The claimants in CC/Devas obtained their award in 2016 but continue to face enforcement challenges a decade later. This illustrates the importance of considering collection and enforcement strategy alongside the merits of the underlying claim.

While the ICSID Convention provides a powerful enforcement mechanism where available, parties seeking to enforce awards under the New York Convention should be prepared for sovereign immunity arguments and the possibility of lengthy enforcement proceedings.

For a more detailed overview of the issue and likely future developments, click here to read the full article in the New Law Journal. For non-subscribers, complete the relevant fields for access.