Under section 2.2 State Immunity Act 1978 (SIA), a State is immune from the jurisdiction of the UK courts unless it has given prior written agreement to submit to a dispute.
In a recent case, the question arose as to whether or not a State could be seen to be giving “prior written agreement” by virtue of it ratifying the New York Convention. The argument arises out of Article III of the Convention which states that “each Contracting State shall recognise arbitral awards as binding and enforce them.”
The decision is the latest in the ongoing saga, CC/Devas (Mauritius) Ltd & Ors v Republic of India [2025] EWHC 694 (Comm)
The case for Article III being taken as “prior written agreement”
The Claimants cited the recent case of Infrastructure Services Luxembourg SARL v The Kingdom of Spain 1 Lloyd's Rep 66 in support of their contention that the Republic of India was not immune from the jurisdiction of the UK courts.
For more information on the Infrastructure Services case, please read our briefing.
In that case, it was held that consent under Article 54(1) of the ICSID Convention, which is similarly worded to Article III of the New York Convention, constituted a prior written agreement satisfying s. 2(2) SIA. It constituted submission to the adjudicative jurisdiction of the UK court by prior written agreement.
The claimants said that this is highly persuasive of the proper interpretation of Article III of the New York Convention, given the close similarity of language and no material difference with language of the ICSID Convention.
Arguments against: the need for express agreement
The Republic of India argued that it had not submitted to the jurisdiction of the English Courts by prior written agreement within the meaning of s.2(2) of the SIA.
One of their reasons was that ratification of the New York Convention is not a “prior written agreement” to submit to the jurisdiction of the UK courts, given that:
- Any such agreement must be “express”, “unequivocal” and “unmistakeable”.
- Article III of the New York Convention says nothing about waiver of immunity or submission to the jurisdiction by a State that is party to an award; and
- Article III, by its own terms, preserves immunity.
The Court’s interpretation: Infrastructure Services is not “highly persuasive”
The ICSID Convention did not apply to the present case, and in any event India is not a party to it. But the Claimants submitted that the same result as in Infrastructure Services must follow in this case. The reason being that the wording of Article III of the New York Convention is materially the same.
However, Counsel for India identified seven cases (not including ICSID cases) in the English courts since 1978 when the SIA came into force where the State claimed immunity in relation to the enforcement of awards. It was not argued in any of them that a State submits under s. 2(2) SIA merely by becoming a party to the New York Convention. That detracts from the claimants’ position that the Infrastructure Services decision is highly persuasive.
Further, the question around Article III of the New York Convention did not arise for decision in Infrastructure Services. The Court in that case made it clear that it did not hear full argument on those issues and it was not in a position to decide them.
In the round, the Sir William Blair (sitting as judge in the present case) did not accept the Claimants’ submission that the Infrastructure Services case was “highly persuasive of the proper interpretation of Article III of the New York Convention, given the close similarity of language with there being no material difference”.
Was there a waiver of state immunity by treaty?
Infrastructure Services decided that for there to be an agreement in writing and an express submission to the jurisdiction under s.2(2) SIA, it is not necessary to use the term “waiver” or “submit” if the implication of waiver or submission is clear from the words expressly used.
The applicable test in English law as to waiver of state immunity by treaty was stated by the House of Lords in R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147.
At page 215A, Lord Goff accepted the proposition that waiver of state immunity by treaty must always be express.
As such, Sir William Blair considered that the ratification of Article III of the New York Convention is not, on its own, a waiver of state immunity by India. He recognised however that there was an absence of authority on this point.
He concluded that Article III of the New York Convention preserves state immunity by its own terms, because the obligation on a “Contracting State” is expressed to be “in accordance with the rules of procedure of the territory where the award is relied upon.”
Round-up
Section 2(2) of the UK’s State Immunity Act 1978 (SIA) provides that a state may submit to the jurisdiction of the UK courts by a prior written agreement.
By reason only of its ratification of the New York Convention 1958 (New York Convention), the Republic of India had not submitted to the jurisdiction. To put it another way, ratification of the New York Convention by India does not in and of itself amount to consent by way of a “prior written agreement” by the state waiving its immunity.
