Sovereign Immunity as a Defense for Enforcement of Arbitration Awards in the English Courts: The ICSID Convention Versus the New York Convention
Recent English case law has created two tracks for enforcement of investor/state awards, depending on whether the award arises under the ICSID Convention or the New York Convention.
Under the State Immunity Act 1978, a foreign state is immune from UK-court jurisdiction subject to certain exceptions, such as where the state has submitted to the jurisdiction by way of a “prior written agreement.” Whether a treaty amounts to such a prior agreement is a matter of interpretation.
In Spain v. Infrastructure Services Luxembourg Sarl, the UK Supreme Court unanimously dismissed appeals by Spain and Zimbabwe against the enforcement of ICSID awards, holding that Article 54(1) of the ICSID Convention—which requires contracting states to recognize and enforce ICSID awards—is a “clear and unequivocal expression of the state’s consent to the exercise of jurisdiction” and therefore a waiver of sovereign immunity from adjudication in proceedings for recognition and enforcement.
Conversely, in Devas (Mauritius) Limited v. India, the UK Court of Appeal held that India's ratification of the New York Convention was not a waiver of immunity. Despite similar wording in Article III of the New York Convention to that in Article 54(1) of the ICSID Convention, the court distinguished the two treaties on grounds of:
- Text—Article III of the New York Convention contains a qualifier that awards are binding and enforceable “in accordance with the rules of procedure of the territory,” which the ICSID Convention does not; and
- Structure—the ICSID Convention exists to secure investment and protect investors, while the New York Convention applies to awards generally and not just those involving states.
The Court of Appeal concluded that state immunity falls squarely within the “rules of procedure” of a state, so Article III of the New York Convention preserves rather than displaces immunity.
The upshot: ICSID award holders now have a clearer route to enforcement in the United Kingdom, while New York Convention award holders must still separately prove a state's written agreement to arbitrate. This gives real enforcement weight to an investor's choice of arbitration forum when a treaty offers both ICSID and non-ICSID options, requiring careful upfront assessment of enforceable assets and likely enforcement venue.
This article is available in the Jenner & Block Japan Newsletter. / この記事はJenner & Blockニュースレターに掲載されています。
Conversely, in Devas (Mauritius) Limited v. India, the UK Court of Appeal held that India's ratification of the New York Convention was not a waiver of immunity. Despite similar wording in Article III of the New York Convention to that in Article 54(1) of the ICSID Convention, the court distinguished the two treaties on grounds of:
- Text—Article III of the New York Convention contains a qualifier that awards are binding and enforceable “in accordance with the rules of procedure of the territory,” which the ICSID Convention does not; and
- Structure—the ICSID Convention exists to secure investment and protect investors, while the New York Convention applies to awards generally and not just those involving states.
The Court of Appeal concluded that state immunity falls squarely within the “rules of procedure” of a state, so Article III of the New York Convention preserves rather than displaces immunity.
The upshot: ICSID award holders now have a clearer route to enforcement in the United Kingdom, while New York Convention award holders must still separately prove a state's written agreement to arbitrate. This gives real enforcement weight to an investor's choice of arbitration forum when a treaty offers both ICSID and non-ICSID options, requiring careful upfront assessment of enforceable assets and likely enforcement venue.
This article is available in the Jenner & Block Japan Newsletter. / この記事はJenner & Blockニュースレターに掲載されています。
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© 2026 Jenner & Block LLP. Attorney Advertising. Jenner & Block LLP is an Illinois Limited Liability Partnership including professional corporations. This publication, presentation, or event is not intended to provide legal advice but to provide information on legal matters and/or firm news of interest to our clients and colleagues. Readers or attendees should seek specific legal advice before taking any action with respect to matters mentioned in this publication or at this event. The attorney responsible for this communication is Brent E. Kidwell, Jenner & Block LLP, 353 N. Clark Street, Chicago, IL 60654-3456. Prior results do not guarantee a similar outcome. Jenner & Block London LLP, an affiliate of Jenner & Block LLP, is a limited liability partnership established under the laws of the State of Delaware, USA and is authorised and regulated by the Solicitors Regulation Authority with SRA number 615729. Information regarding the data we collect and the rights you have over your data can be found in our Privacy Notice. For further inquiries, please contact dataprotection@jenner.com.
Recent English case law has created two tracks for enforcement of investor/state awards, depending on whether the award arises under the ICSID Convention or the New York Convention.
Under the State Immunity Act 1978, a foreign state is immune from UK-court jurisdiction subject to certain exceptions, such as where the state has submitted to the jurisdiction by way of a “prior written agreement.” Whether a treaty amounts to such a prior agreement is a matter of interpretation.
In Spain v. Infrastructure Services Luxembourg Sarl, the UK Supreme Court unanimously dismissed appeals by Spain and Zimbabwe against the enforcement of ICSID awards, holding that Article 54(1) of the ICSID Convention—which requires contracting states to recognize and enforce ICSID awards—is a “clear and unequivocal expression of the state’s consent to the exercise of jurisdiction” and therefore a waiver of sovereign immunity from adjudication in proceedings for recognition and enforcement.
Conversely, in Devas (Mauritius) Limited v. India, the UK Court of Appeal held that India's ratification of the New York Convention was not a waiver of immunity. Despite similar wording in Article III of the New York Convention to that in Article 54(1) of the ICSID Convention, the court distinguished the two treaties on grounds of:
- Text—Article III of the New York Convention contains a qualifier that awards are binding and enforceable “in accordance with the rules of procedure of the territory,” which the ICSID Convention does not; and
- Structure—the ICSID Convention exists to secure investment and protect investors, while the New York Convention applies to awards generally and not just those involving states.
The Court of Appeal concluded that state immunity falls squarely within the “rules of procedure” of a state, so Article III of the New York Convention preserves rather than displaces immunity.
The upshot: ICSID award holders now have a clearer route to enforcement in the United Kingdom, while New York Convention award holders must still separately prove a state's written agreement to arbitrate. This gives real enforcement weight to an investor's choice of arbitration forum when a treaty offers both ICSID and non-ICSID options, requiring careful upfront assessment of enforceable assets and likely enforcement venue.
This article is available in the Jenner & Block Japan Newsletter. / この記事はJenner & Blockニュースレターに掲載されています。
Conversely, in Devas (Mauritius) Limited v. India, the UK Court of Appeal held that India's ratification of the New York Convention was not a waiver of immunity. Despite similar wording in Article III of the New York Convention to that in Article 54(1) of the ICSID Convention, the court distinguished the two treaties on grounds of:
- Text—Article III of the New York Convention contains a qualifier that awards are binding and enforceable “in accordance with the rules of procedure of the territory,” which the ICSID Convention does not; and
- Structure—the ICSID Convention exists to secure investment and protect investors, while the New York Convention applies to awards generally and not just those involving states.
The Court of Appeal concluded that state immunity falls squarely within the “rules of procedure” of a state, so Article III of the New York Convention preserves rather than displaces immunity.
The upshot: ICSID award holders now have a clearer route to enforcement in the United Kingdom, while New York Convention award holders must still separately prove a state's written agreement to arbitrate. This gives real enforcement weight to an investor's choice of arbitration forum when a treaty offers both ICSID and non-ICSID options, requiring careful upfront assessment of enforceable assets and likely enforcement venue.
This article is available in the Jenner & Block Japan Newsletter. / この記事はJenner & Blockニュースレターに掲載されています。
Related Lawyers
Related Articles
Related Capabilities
© 2026 Jenner & Block LLP. Attorney Advertising. Jenner & Block LLP is an Illinois Limited Liability Partnership including professional corporations. This publication, presentation, or event is not intended to provide legal advice but to provide information on legal matters and/or firm news of interest to our clients and colleagues. Readers or attendees should seek specific legal advice before taking any action with respect to matters mentioned in this publication or at this event. The attorney responsible for this communication is Brent E. Kidwell, Jenner & Block LLP, 353 N. Clark Street, Chicago, IL 60654-3456. Prior results do not guarantee a similar outcome. Jenner & Block London LLP, an affiliate of Jenner & Block LLP, is a limited liability partnership established under the laws of the State of Delaware, USA and is authorised and regulated by the Solicitors Regulation Authority with SRA number 615729. Information regarding the data we collect and the rights you have over your data can be found in our Privacy Notice. For further inquiries, please contact dataprotection@jenner.com.
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