CCDM Holdings v Republic of India [2026] HCA 9
It was held that ratification of a New York convention did not involve waiver of foreign state immunity from jurisdiction over an arbitral award. India had not waived immunity to enforcement in Australia of an award made in the Netherlands in favour of CCDM.
The text of the convention was silent on immunity. But its history and general State practice were both against denial by ratification9. To the extent a general State practice was discernible, the court said (at [42]), it was against ratification by India being a sufficient act of waiver in this case. An amicus brief by the US executive in a recent SCOTUS appeal was evidence of the current position on the issue10.
This principle is from Episode 133 of interpretation NOW!
Footnotes:
9 Bjorklund (2010) 21 ARIA 211 (219), CC/Devas [2025] 1 WLR 4287 [55, 81].
10 NextEra (2024) Brief (19, 22), cf Gardiner Treaty Interpretation (257).