High Court finds India did not waive immunity by ratifying the New York Convention

The High Court has affirmed, in a unanimous decision delivered on 8 April 2026, that India did not waive its foreign State immunity by its ratification of the New York Convention. Unlike the earlier decision by the Full Federal Court, the High Court did not consider India’s commercial reservation to the New York Convention as relevant to the analysis. The decision clarifies the limits of Australia’s pro-enforcement landscape.

In CCDM Holdings LLC v Republic of India [2026] HCA 9, the High Court found that India did not waive its foreign State immunity under the Foreign States Immunities Act 1985 (Cth) (FSIA) merely by becoming a party to the 1958 New York Convention on the Recognition and Enforcement of Arbitration Awards (New York Convention). Taking a wholly different approach to that taken by the Full Federal Court earlier in the proceedings, the High Court considered it unnecessary to analyse India’s reservation carving out non-commercial disputes from the scope of the New York Convention. This judgment represents a significant development in Australia’s enforcement regime. It now answers the question first raised by the High Court in Kingdom of Spain v Infrastructure Services Luxembourg Sàrl (2023) 275 CLR 292 (Kingdom of Spain v Infrastructure Services) on whether ratifying the New York Convention would amount to a waiver of foreign State immunity from the jurisdiction of Australian courts.

Background to CCDM Holdings LLC v Republic of India

The background to this case has been canvassed in our earlier insights, Federal Court finds India waived foreign state immunity in proceedings to recognise and enforce US$111 million award and Full Federal Court reverses ruling on India’s foreign state immunity defence. It concerns a US $111 million award (Award) won by three Mauritian shareholders in the Indian telecommunications company Devas Multimedia Private Ltd (Devas), pursuant to the India–Mauritius bilateral investment treaty (BIT). Since India is not a party to the ICSID Convention, the investment treaty claims were referred to arbitration pursuant to the UNCITRAL Arbitration Rules and administered by the Permanent Court of Arbitration (PCA). The tribunal found that India had breached its obligation under the provisions of the BIT when it annulled an agreement involving Devas.

Procedural history

In 2021, assignees of the Mauritian investors’ rights under the Award (the Appellants) commenced proceedings in the Federal Court, in CCDM Holdings, LLC v Republic of India (No 3) [2023] FCA 1266 (Trial Judgment), seeking recognition and enforcement of the Award under s 8(3) of the International Arbitration Act 1994 (Cth). India applied to set aside the recognition and enforcement application by the Mauritian investors on the ground that India had immunity from the jurisdiction of the Court under s 9 of the FSIA. In response, the Appellants alleged that India had waived its immunity by submission to the jurisdiction of Australian courts in accordance with s 10 of the FSIA.

The primary judge found that by ratifying the New York Convention, India had submitted to the jurisdiction of the courts of Australia. This was as contemplated by ss 10(1) and 10(2) of the FSIA, in respect of proceedings against it for recognition and enforcement, where the Award and what appeared on its face to be an agreement with India to arbitrate the underlying dispute was tendered. The primary judge acknowledged that there was no express waiver of foreign State immunity, but held that this was necessarily implied from the text of the New York Convention and by India’s ratification.

On appeal in Republic of India v CCDM Holdings LLC (2025) 307 FCR 308, the Full Court of the Federal Court of Australia (Full Federal Court) overturned the first-instance decision, finding that India had not waived foreign State immunity. The decision turned on India’s reservation on ratifying the New York Convention which carved out non-commercial disputes from its scope of application. As to awards that fell outside of India’s commercial reservation, the Full Federal Court noted there was ‘much to be said in support of a conclusion that by ratifying the Convention India waived immunity [in respect of such awards]’. 

The Appellants then appealed to the High Court.

The High Court’s reasoning

Question for the High Court

The High Court considered whether India's ratification of the New York Convention amounted to a waiver of foreign State immunity from jurisdiction for recognition and enforcement of a foreign arbitral award in the courts of other State parties to the New York Convention. The Court determined it unnecessary to consider the issue of India’s reservation concerning non-commercial disputes that had been central to the Full Federal Court’s analysis.

Applicable principles

• Section 9 of the FSIA provides that ‘[e]xcept as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding’. 

• Section 10(1) of that Act provides that ‘[a] foreign State is not immune in a proceeding in which it has submitted to the jurisdiction in accordance with this section’. As s 10(2) provides, that submission to jurisdiction can occur at any time ‘by agreement or otherwise’, but submission does not occur ‘by reason only that [the foreign State] is a party to an agreement the proper law of which is the law of Australia’.

• In Australia, in circumstances where an international agreement does not expressly use the word ‘waiver’, the inference that an express term involves a waiver of immunity will only be drawn if the implication is clear from the words used and the context. (This was confirmed in Kingdom of Spain v Infrastructure Services, 311 [26].)

India did not waive its foreign State immunity merely by its ratification of the New York Convention

The High Court held that, contrary to the reasons of the primary judge, and contrary to the assumption of the Full Federal Court, the New York Convention displays no clear, let alone unequivocal intention that entry into the Convention involves a waiver of foreign State immunity. Rather, the indications from the text and context of the New York Convention suggest that State ratification was not intended to constitute, in and of itself, a waiver of foreign State immunity. It could therefore not be said that India waived its foreign State immunity merely by ratification of the New York Convention.

The presumption of sovereign immunity under international law reaffirmed 

Reaffirming the principles applied in Kingdom of Spain v Infrastructure Services, the High Court noted that to overcome the presumption of sovereign immunity under international law, any waiver of foreign State immunity in an international agreement must be clear and unmistakeable. Any such waiver must derive from the express words of the agreement (including necessary implications from those words). 

In what it described as an ‘inauspicious start’ to the assessment of whether the presumption was overcome by the New York Convention, the High Court observed that the text of the Convention contains no express references to foreign State immunity. Further, the High Court held that the ‘limited’ and ‘ambiguous’ consideration of foreign State immunity in the Convention’s travaux préparatoires at best demonstrated an intention to preserve immunity in the courts of other States.

Article III is inconsistent with a waiver of foreign State immunity having occurred merely by ratification of the New York Convention

In support of their argument, the Appellants had principally relied on Article III of the New York Convention, which provides that Contracting States ‘shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles’, without ‘substantially more onerous conditions … than are imposed on the recognition or enforcement of domestic arbitral awards’. 

In the High Court’s view, where the recognition and enforcement sought is relevant to the question of whether a State's ratification of the New York Convention involved a waiver of foreign State immunity by that State, such recognition and enforcement is to be conducted in accordance with the rules of procedure of the territory in which recognition and enforcement is sought. The rules of foreign State immunity are treated at international law as rules of procedure. The High Court held that:

‘Article III thus 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. That qualification is inconsistent with a waiver of foreign State immunity having occurred merely by ratification of the New York Convention, which would have left no role for the rules of foreign State immunity in the territory where the award is relied upon.’

No analogy can be drawn with the ICSID Convention

The Court rejected the Appellants’ attempt to draw an analogy between the waiver of foreign State immunity by entry into the ICSID Convention, which was found in Kingdom of Spain v Infrastructure Services, and the asserted waiver of foreign State immunity by entry into the New York Convention. The analogy failed, the key reason being that foreign State immunity was expressly addressed in the ICSID Convention (Articles 53, 54 and 55).

The scope of the New York Convention: a question left unanswered

India also submitted that the New York Convention did not apply in this case because the underlying dispute was not a commercial or private law dispute. As India could not be said to have waived its foreign State immunity by ratifying the New York Convention, and because the question was not fully explored by the parties in their submissions, the Court considered it unnecessary to determine the scope of the New York Convention.

Impact of the decision

It is now clear that Australian courts will not accept that a State has waived its immunity merely by virtue of the fact that the State has ratified the New York Convention. The consequence of this approach is that investors seeking recognition and enforcement of a New York Convention award in Australia against a State will need to identify an alternative basis on which it can be said that the State had submitted to jurisdiction or otherwise forfeited its immunity. This position is consistent with the approach taken in other jurisdictions, including in England and Wales (see CC/Devas (Mauritius) Ltd v Republic of India [2025] 1 WLR 4287), and Canada (see Republic of India v CCDM Holdings, LLC [2024] QCCA 1620). Accordingly, the decision is not a surprising one and brings Australia into alignment with other major jurisdictions and the prevailing international consensus.

A possible alternative route to recognition and enforcement exists pursuant to s 17(2) of the FSIA (the arbitration exception), but it is unclear whether (and to what extent) this exception could apply in cases involving the recognition and enforcement of foreign arbitral awards against sovereign States.

Under s 17(2) of the FSIA and apart from certain exceptions not relevant here, where:

(a) … a foreign State would not be immune in a proceeding concerning a transaction or event; and

(b) the foreign State is a party to an agreement to submit to arbitration a dispute about the transaction or event;

then, subject to any inconsistent provision in the agreement, the foreign State is not immune in a proceeding concerning the recognition as binding for any purpose, or for the enforcement, of an award made pursuant to the arbitration, wherever the award was made. 

Section 17(2) reflects the idea that local courts should only be able to enforce a foreign arbitral award against a foreign State if, ‘had the underlying dispute been brought before those courts for resolution, the foreign State would not have been immune’ (Trial Judgment, [49], discussing Australian Law Reform Commission, Foreign State Immunity (Report No 24, 1984) 62–3 [107] (ALRC Commentary). This would, for example, allow for the recognition and enforcement of awards where the underlying dispute concerns a commercial transaction or other transactions of the foreign State over which the courts would have had jurisdiction. Consequently, whether a State has waived its immunity pursuant to s 17(2) will turn on whether Australian courts consider the underlying dispute to be a dispute ‘concerning a commercial transaction’ (ALRC Commentary, 62–3 [107]).

It is possible that the Appellants elected not to rely upon s 17(2) at any stage of these proceedings for one key reason: a proceeding for the recognition and enforcement of a foreign arbitral award about a dispute concerning a commercial transaction is also likely to engage the ‘commercial transactions’ exception under s 11 of the FSIA applies. If the s 11 exception cannot be established, it is difficult to see how the s 17(2) exception could independently be satisfied on the same facts as the threshold condition in s 17(2) (that the State ‘would not be immune’ in a proceeding concerning the transaction) would likewise not be met. Indeed, at first instance, the Appellants had attempted (but failed) to argue that India had waived its immunity pursuant to the ‘commercial transactions’ exception. In the decision at first instance, the judge held that India’s annulment of the Devas/Antrix Agreement (which was made by a body ‘vested with the highest form of executive policy-making in India’ and was stated to have been made ‘for reasons of public policy’) could not be characterised as a ‘like activity’ to a ‘commercial, trading, business, professional or industrial or like transaction’. Therefore, the underlying dispute did not concern a ‘commercial transaction’ and the exception under section 11 did not apply.

Even accepting this potential overlap between the two exceptions, this does not, however, render s 17(2) otiose. For example, the arbitration exception in s 17(2) would apply in circumstances where a foreign State has contracted out of the commercial transactions exception pursuant to s 11(2)(a)(ii). The consequence of that contracting out is that the arbitral award could not be enforced under the commercial transactions exception. That award would nevertheless be enforceable under s 17(2) of the FSIA. 

The potential overlap between the two exceptions is explained by the fact that the recognition and enforcement of arbitral awards was regarded as an area of sufficient importance during the drafting of the FSIA such as to ‘warrant separate and explicit treatment’. The separate provision was considered preferable to ‘treating a foreign State as having waived immunity [merely] by entering into an agreement for arbitration’.

In this sense, the High Court decision departs from the approach in certain other jurisdictions such as England and Wales or Singapore. In England and Wales, procedural events such as applications for leave to enforce an award are regarded as proceedings which relate to the arbitration within the meaning of State immunity legislation, with the consequence that a State which has agreed in writing to submit a dispute to arbitration cannot claim immunity from recognition of the resulting award (see Svenska Petroleum Exploration AB v Government of the Republic of Lithuania (No 2) [2007] QB 886). Singapore’s equivalent legislation derives from relevant English legislation and a similar approach applies. The position of States in those jurisdictions is further complicated by issue estoppel: a State may be precluded from denying that it agreed in writing to submit its dispute to arbitration where the legal and factual issues determinative of that question have been the subject of final and conclusive decision on the merits by a court of the seat (see Hulley Enterprises Ltd v Russian Federation [2025] SGHC(I) 19).

Following this decision, the recognition and enforcement of New York Convention awards against sovereign States in Australia remain complex and somewhat uncertain where the underlying dispute does not arise from a straightforwardly commercial relationship. Award creditors contemplating recognition and enforcement in Australia against a foreign State should obtain specialist advice at the earliest opportunity.