The High Court of Australia recently held that India is entitled to sovereign immunity in proceedings seeking the enforcement of a $111 million arbitral award related to the Antrix-Devas dispute [CCDM Holdings LLC v. Republic of India]..A seven-judge Bench led by Chief Justice Stephen Gageler ruled that ratification of the New York Convention does not amount to a waiver of such immunity..The Court dismissed an appeal filed by CCDM Holdings LLC and others seeking recognition and enforcement of the award against India in Australia.The underlying dispute related to a 2005 agreement between Devas Multimedia Private Limited and Antrix Corporation Limited, a State-owned entity, for leasing satellite spectrum to provide broadband services. In 2011, India annulled the agreement citing national security and public interest considerations, which led to arbitral proceedings under the India–Mauritius bilateral investment treaty.A tribunal seated in The Hague held that India had breached its treaty obligations and awarded compensation of over $111 million to Devas and other investors. The award was subsequently sought to be enforced in multiple jurisdictions, including Australia..Before the Australian courts, CCDM argued that India had waived its sovereign immunity by ratifying the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (New York Convention).The central issue before the High Court was whether such ratification amounted to submission to jurisdiction. Answering this in the negative, the Court held that the Convention does not evince a “clear and unmistakable” intention to waive foreign State immunity.“The New York Convention displays neither a clear nor an unequivocal intention that entry into the Convention involves such a waiver.”It further clarified that the structure and context of the Convention do not support an inference of waiver merely from ratification.“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.”.The Bench underscored that sovereign immunity remains a foundational principle of international law and cannot be lightly displaced.“There is a strong presumption that a foreign State has not abandoned its independence and autonomy by waiving that otherwise preserved immunity.”.On the framework of the Convention, the Court held that enforcement obligations are subject to domestic procedural law, including immunity.“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.”.The ruling overturns the finding of the Federal Court at first instance that India had submitted to jurisdiction by ratifying the Convention. While the Federal Court had allowed India’s appeal on narrower grounds, the High Court held that no waiver arose at all.The High Court also distinguished its earlier ruling under the ICSID Convention, noting that it contains specific provisions on State consent and enforcement which are absent in the New York Convention.The appeal was dismissed with costs..The appellants were represented by Senior Counsel BW Walker, JA Hogan-Doran and Advocate A F Garsia, instructed by Norton Rose Fulbright..The Republic of India was represented by Senior Counsel Justin Gleeson and Fiona Roughley of Banco chambers with Brad Strahorn and Aditya Singh from White & Case..The Attorney-General of the Commonwealth intervened through Solicitor-General SP Donaghue KC with CSA Harris and AAE O’Beid, instructed by the Australian Government Solicitor..[Read Judgment]
