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AUSTRALIA 2026-1
High Court of Australia, 8 April 2026, Case No. S90/2025
(CCDM Holdings, LLC et al. v. Republic of India)
AUSTRALIA 2026-1
In this decision in the Devas saga, the High Court dismissed the appeal against the decision of the Federal Court (AUSTRALIA 59) – which in turn had set aside a first instance decision (AUSTRALIA 58) – and held that India was immune from the Court’s jurisdiction in enforcement proceedings. The Court held that ratification of the New York Convention did not constitute a clear and unmistakable waiver of foreign State immunity under Australia’s Foreign States Immunities Act.
The court discusses issues relating to the quality of the parties, as physical or legal persons against whom enforcement of an arbitral award is sought, including the incapacity of a State to enter into an arbitration agreement, and questions relating to sovereign immunity. For the related defenses to enforcement, see Art. V(1)(a).
The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.