UK Court of Appeal rejects Devas investors’ plea to enforce €195 million arbitral award against India

The Court of Appeal of England and Wales has dismissed an appeal filed by Devas investors seeking to enforce an arbitral award worth over €195 million against the Republic of India. (Devas Mauritius v. Republic of India)

A three-judge Bench of Lord Justices Lewison, Newey and Phillips held that India had not submitted to the jurisdiction of English courts merely by ratifying the 1958 New York Convention on recognition and enforcement of foreign arbitral awards.

The case arose from two arbitral awards passed by a Permanent Court of Arbitration tribunal seated in The Hague. The awards were passed in proceedings initiated by CC/Devas (Mauritius) Limited, Devas Employees Mauritius Private Limited and Telcom Devas Mauritius Limited against India under the India-Mauritius bilateral investment treaty.

The dispute traces back to a 2005 contract between Devas Multimedia Private Limited and Antrix Corporation Limited, a company wholly owned by the Government of India, for lease of S-band spectrum on two Indian satellites. In 2011, India decided to annul the Devas project, citing the need to preserve the spectrum for national purposes. Antrix thereafter terminated the contract.

In 2016, an arbitral tribunal rejected India’s objection that the Devas contract was not a qualifying investment. However, it accepted that 60 per cent of India’s annulment decision was covered by the essential security interests carve-out. The tribunal nevertheless found that India had breached its obligation to accord fair and equitable treatment to the investors. The investors later sought to enforce the awards in multiple jurisdictions, with India resisting enforcement on sovereign immunity grounds.

The UK High Court had in June 2021 granted permission to enforce the awards as a judgment. India later moved to set aside that order, asserting sovereign immunity under the UK State Immunity Act, 1978.

The appellants argued that by ratifying Article III of the New York Convention, India had agreed that contracting States must recognise and enforce arbitral awards. This, they contended, amounted to submission to the jurisdiction of English courts.

The Court of Appeal rejected the argument.

Lord Justice Phillips held that Article III requires enforcement of awards “in accordance with the rules of procedure” of the territory where the award is relied upon. The Court held that sovereign immunity is itself a procedural rule under English and international law.

“In my judgment that interpretation... entirely accords with common sense that states would not have agreed to waive immunity from the enforcement of awards against them where they have not agreed to arbitrate,” the judgment said.

The Court also distinguished the New York Convention from the ICSID Convention, under which the UK Supreme Court had recently held that ratification could amount to waiver of immunity.

Lord Justice Lewison, in a concurring opinion, said that the New York Convention is pro-arbitration and pro-enforcement only once the English court’s jurisdiction is engaged.

“But this argument does not deal with the prior question: is the English court’s jurisdiction engaged?” he said.

Accordingly, the Court upheld the High Court’s finding that India had not waived sovereign immunity merely by ratifying the New York Convention.

Tom Sprange KC, Ruth Byrne KC and Kabir Bhalla, instructed by King & Spalding International LLP, appeared for the appellants.

Sudhanshu Swaroop KC, instructed by a team from White & Case LLP comprising partners Andrea Menakar, Emiko Singh and associates William Obree and Kit Chong Ng appeared for the Republic of India.

[Read Judgment]