Today the Full Federal Court published a decision of interest on the enforceability of international arbitral awards against foreign states, and in particular the application of foreign state immunity principles.
Republic of India v CCDM Holdings LLC [2025] FCAFC 2 concerned the lease of a segment of India’s electromagnetic spectrum on two satellites to subsidiaries of CCDM. In 2011, the government of India annulled the leases, culminating in arbitral proceedings decided in favour of CCDM at the Permanent Court of Arbitration in the Hague.
CCDM commenced enforcement proceedings of the Award in the Federal Court of Australia. India sought to rely on the immunity granted by the Foreign States Immunities Acts.
The question for determination was whether, by ratifying the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, the Republic of India “submit[ted] … by agreement” within the meaning of s 10(2) of the Foreign States Immunities Act 1985 (Cth) to the jurisdiction of the Federal Court of Australia.
The Court (S Derrington, Stewart and Feutrill JJ) held that India did not waive its right to immunity by reason of its “reservation on ratifying the Convention to the Convention being applicable only to ‘differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the Law of India.'”
The Court observed at [72] that “by its reservation, India made it plain that it did not and would not treat differences arising from legal relationships that are not commercial (ie non-commercial disputes) as being subject to the Convention.”
Fiona Roughley SC and Celia Winnett appeared for the Republic of India. They are instructed by Brad Strahorn, Carla Brown, Bryony Withers and Hadley Hickson of White & Case LLP.