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AUSTRALIA 59
Federal Court of Australia, 31 January 2025, File No. NSD 1306 of 2023
(Republic of India v CCDM Holdings, LLC)
AUSTRALIA 59
In this decision in the Devas case, the Full Court set aside the earlier decision of the Court (AUSTRALIA 58) and held that it did not have jurisdiction to enforce an award against India, finding that by ratifying the New York Convention with a commercial reservation, India did not waive sovereign immunity with respect to the enforcement of arbitral awards that were non-commercial in nature, such as the one at issue here.
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 relevance and determination of the commercial nature of the relationship underlying the award, including in the context of contractual and non-contractual relations.
The court discusses this general reciprocity clause, which was inserted in the Convention to remedy the absence in the commercial reservation (Art. I(3)) of a federal-state clause allowing Contracting States not to apply the Convention to awards made in a constituent state or province of a Contracting State which was not bound to apply the Convention.