A recent High Court decision has clarified the relationship between foreign State immunity and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (New York Convention). A State’s ratification of the New York Convention does not, of itself, constitute a waiver of jurisdictional immunity in award enforcement proceedings. The judgment of the High Court of Australia in CCDM Holdings, LLC & Ors v Republic of India [2026] HCA 9 distinguished between the New York Convention and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) (ICSID Convention), making clear that whether treaty ratification amounts to a waiver of immunity will depend on the terms and structure of the particular treaty.
The High Court has adopted a stricter approach to waiver of foreign State immunity than that taken by courts of some other jurisdictions, for example Canada and Singapore,[1] but consistent with that taken in the United Kingdom.[2]
The decision will be of particular interest to award creditors pursuing enforcement against foreign States, especially in the context of the ICSID Convention.
Background
The proceedings arose from efforts by CCDM Holdings (CCDM), as assignees of Mauritian investors, to enforce an arbitral award of more than US$111 million against the Republic of India. The award was made pursuant to a bilateral investment treaty between India and Mauritius. CCDM sought recognition and enforcement of the award in Australia under the New York Convention, as implemented by Pt II of the International Arbitration Act 1974 (Cth). India resisted enforcement, invoking foreign State immunity under s 9 of the Foreign States Immunities Act 1985 (Cth).
At the same time, CCDM or related parties sought to register the award in several other jurisdictions, including Canada, the United Kingdom, the Netherlands, France, Belgium, Luxembourg, and Singapore.[3]
At first instance, Jackman J of the Federal Court of Australia held that India’s ratification of the New York Convention constituted waiver of foreign State immunity,[4] finding that the New York Convention’s obligation to recognise and enforce awards gave rise to a necessary implication of waiver. India appealed to the Full Court, which overturned the decision[5] and held that a reservation by India in its ratification of the New York Convention limited any waiver to disputes ‘considered as commercial under Indian law’, which did not include the subject matter of the award.
CCDM subsequently appealed to the High Court. The central question was whether India had waived foreign State immunity by ratifying the New York Convention.
The High Court’s decision
The High Court dismissed the appeal on the basis that India had not waived foreign State immunity. The Court held that ‘any waiver of foreign State immunity in an international agreement must be clear and unmistakeable’ and ‘[s]uch waiver must be derived from the express words of the agreement’.[6]
No waiver by mere ratification of the New York Convention
The High Court held that India’s ratification of the New York Convention did not, of itself, amount to a waiver of the presumption of foreign State immunity.[7] A strong presumption of immunity reflects a fundamental rule of customary international law, drawing on the established principle of sovereign equality recognised in Kingdom of Spain v Infrastructure Services Luxembourg Sarl (2023) 275 CLR 292 (Kingdom of Spain).[8] The strength of the presumption that State immunity is not waived was the primary reason for the High Court finding that waiver must be clear and unequivocal.[9] Such waiver must be derived from the express words of the agreement.
The New York Convention contains no express reference to foreign State immunity,[10] nor any language from which a waiver can be implied. Rather, the High Court held that the language of the New York Convention suggested that foreign State immunity was not intended to be displaced.[11] On that basis, the presumption was not displaced.
No analogy can be drawn with the ICSID Convention
The High Court rejected any analogy of the New York Convention with the ICSID Convention.[12]
In Kingdom of Spain, the High Court held accession to the ICSID Convention gave rise to a waiver of foreign State immunity by relying on its express provisions which specifically regulate State participation and preserve immunity only in relation to execution.
The New York Convention does not have comparable express provisions to the ICSID Convention and therefore does not support the same inference of waiver by treaty ratification alone. Article III of the New York Convention merely preserves the operation of the ‘rules of procedure’ of the forum.
Broader basis for waiver and questions of scope
Finally, the High Court rejected attempts by the Appellants to identify a broader basis for waiver, including arguments that ratification, when combined with the Convention’s enforcement framework, implied submission to jurisdiction. Such reasoning impermissibly diluted the high threshold for waivers.[13]
Having held that there was no waiver of foreign State immunity, the High Court declined to answer questions on India’s alternative arguments on the scope of the New York Convention, including whether it is limited to commercial disputes.[14] The High Court noted that these issues were anterior to the immunity question and thus should be resolved only in a case where they are determinative.
Practical implications of the decision
This decision provides several important practical clarifications to award creditors seeking enforcement against foreign States:
The decision is a salient reminder that any arbitral award is only as good as it is enforceable. A party considering international arbitration against a State must be certain at the outset that they will be able to overcome any claims to foreign State immunity when seeking to register an award. Where the State is party to the ICSID Convention,[15] this outcome can be achieved through the ICSID arbitration process.
Where the State is not party to the ICSID Convention it will be necessary to achieve waiver by some other means, for example attempting to obtain an express waiver from the State as part of an ad hoc arbitration agreement. Otherwise, a party with a favourable award against a State will be left to either find a jurisdiction that takes a more expansive approach to waiver, or to register the award in the courts of the State against which the award has been made, which may be legally or politically impossible.
Overall, the High Court’s decision can be expected to have a chilling effect on the enforcement of international awards against States in Australia, with award creditors choosing to register in other jurisdictions.
[1] Republic of India v CCDM Holdings LLC [2024] QCCA 1620; Republic of India v Deutsche Telekom AG [2023] SGCA(I) 10.
[2] CC/Devas (Mauritius) Ltd v Republic of India [2025] 1 WLR 4287.
[3] Republic of India v CCDM Holdings LLC [2024] QCCA 1620 at [5]; CC/Devas (Mauritius) Ltd v Republic of India [2025] 1 WLR 4287 at [22]. Curiously, none of these parallel proceedings are expressly mentioned in the High Court’s judgment, even though the decisions of the UK and Canadian Courts are cited at [40]‑[42].
[4] CCDM Holdings LLC v Republic of India [No 3] [2023] FCA 1266.
[5] Republic of India v CCDM Holdings LLC [2025] FCAFC 2.
[6] CDDM Holdings LLC v Republic of India [2026] HCA 9 at [34].
[7] CDDM Holdings LLC v Republic of India [2026] HCA 9 at [35]‑[42].
[8] CDDM Holdings LLC v Republic of India [2026] HCA 9 at [32].
[9] CDDM Holdings LLC v Republic of India [2026] HCA 9 at [34].
[10] CDDM Holdings LLC v Republic of India [2026] HCA 9 at [35].
[11] CDDM Holdings LLC v Republic of India [2026] HCA 9 at [38]‑[39].
[12] CDDM Holdings LLC v Republic of India [2026] HCA 9 at [45]‑[49].
[13] CDDM Holdings LLC v Republic of India [2026] HCA 9 at [43]‑[44]
[14] CDDM Holdings LLC v Republic of India [2026] HCA 9 at [50]‑[57].
[15] Currently 158 Contracting States: ICSID 2025 Annual Report: https://icsid.worldbank.org/sites/default/files/publications/ICSIDAnnualReport2025ENG.pdf.
