Federal Court of Australia
Federal Court of Australia
Republic of India v CCDM Holdings, LLC [2025] FCAFC 2 Appeal from: CCDM Holdings, LLC v Republic of India (No 3) [2023] FCA 1266
File number: NSD 1306 of 2023
Judgment of: SARAH C DERRINGTON, STEWART AND FEUTRILL JJ
Date of judgment: 31 January 2025
Catchwords: ARBITRATION – investor-State arbitration under a bilateral investment treaty – originating application seeking recognition and enforcement of foreign arbitral award under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) – interlocutory application to set aside the originating application on the basis of foreign State immunity PRIVATE INTERNATIONAL LAW – where foreign State respondent asserts sovereign immunity under s 9 of the Foreign States Immunities Act 1985 (Cth) – whether there has been a submission to the jurisdiction of the Court within the meaning of s 10(2) of the Immunities Act – where the foreign State has signed the New York Convention with a reservation that the Convention be applicable only to "differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the Law of India" – where the differences which are the subject of the arbitration were not within the reservation – whether the respondent waived immunity in respect of proceedings in respect of an award in such an arbitration – no waiver – appeal allowed PUBLIC INTERNATIONAL LAW – where Art I(3) of the New York Convention allows a State on signing the Convention to declare that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the State making the declaration – what legal effects such a reservation has under Art 21 of the Vienna Convention on the Law of Treaties (1969) – whether the reserving State has any obligation to the accepting States with regard to arbitral awards outside the scope of the reservation, and vice versa
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