State Immunity - Opt Out? CC/Devas v India

In its recent judgment in CC/Devas (Mauritius) Ltd v Republic of India,¹ the High Court of England and Wales has held that ratification by a State of the New York Convention does not in itself amount to a waiver of immunity by that State in arbitral enforcement proceedings under English (and by extension Cayman) statute, addressing a key question that had been raised – but left unanswered – by previous authorities. This decision is of interest in relation to arbitral enforcement against States in the Cayman Islands.

BACKGROUND

In 1998, the Governments of Mauritius and India entered into a bilateral investment treaty (BIT), which came into force in 2000. The BIT contained an arbitration clause providing for disputes between investors and the contracting States to be submitted (among other options) to an ad hoc arbitral tribunal in accordance with UNCITRAL rules.