Private international law
Arbitration – Foreign state immunity
In CCDM Holdings LLC v India [2026] HCA 9 (8 April 2026), the High Court unanimously dismissed an appeal from the Full Court of the Federal Court of Australia.
The facts related to a bilateral investment treaty that the Republic of India and the Republic of Mauritius entered into in 1998, which was in force between 2000 and 2017.
The bilateral investment treaty allowed for several arbitration options, including ad hoc, under modified UNCITRAL Rules.
In 2012, three Mauritian investors commenced proceedings in the Permanent Court of Arbitration under the modified UNCITRAL Rules. Their claim arose from their status as shareholders in an Indian company, Devas Multimedia Private Limited, which in 2005 had entered into an agreement to lease part of an electromagnetic spectrum on two satellites from Antrix Corporation Limited, an Indian state-owned company. The purpose was for Devas to then utilise the electromagnetic spectrum to provide broadband wireless internet and audio-video calls throughout India. This agreement was annulled by the Republic of India.
The Mauritian investors claimed that the policy decision amounted to an expropriation of their investments in India and, accordingly, a breach of their agreement.
The appellants are the assignees and substituted as parties for the group of Mauritian investors who had obtained an arbitral award in excess of US$111 million in the Netherlands against the Republic of India (at [1]).
The question for the Court whether the Republic of India’s act of ratification of the New York Convention amounted to a waiver of the foreign State immunity from jurisdiction (at [2]).
The Foreign States Immunities Act 1985 (Cth) states per s10(1) that “[a] foreign State is not immune in a proceeding in which it has submitted to the jurisdiction in accordance with this section” per s10(2) “by agreement or otherwise” (at [3]).
The primary judge at the Federal Court level held that the Republic of India had waived its immunity under ss10(1) and 10(2). The Full Court held that, even on the assumption that the waiver had occurred, it was only limited to commercial law matters arising under the laws of the Republic of India. The Arbitral award did not fall into this category, so would not apply.
The High Court cited Spain v Infrastructure Services Luxembourg Sàrl (2023) 275 CLR 292, stating that it is a “political principle that those who are independent and autonomous cannot, except by consent, exercise authority over, or establish an external source of authority over, others of independent and autonomous status” (at [26], [32]).
On the presumption of state immunity by reason of ratification of the New York Convention:
“The starting point in assessing whether the presumption of foreign State immunity is overcome in the New York Convention is that the text of the Convention contains no express reference to foreign State immunity. So too there is limited and potentially conflicting consideration of foreign State immunity in the travaux préparatoires to the New York Convention. This is an inauspicious start for any submission that ratification of the New York Convention was a clear, unmistakable, and unequivocal waiver of foreign State immunity” (at [35]).
The High Court dismissed the appeal with costs.
Constitutional law
Implied freedom – Cap on political donations
In Hopper v Victoria [2026] HCA 11 (15 April 2026), the High Court unanimously answered questions of law in a special case and ordered that the State of Victoria pay the costs of the proceedings.
The questions were:
1. “Is Pt 12 of the Electoral Act 2002 (Vic), operating with the nominated entity exception in para (j) of the definition of “gift” in s 206(1) of the Electoral Act 2002 (Vic), invalid (in whole or in part and, if in part, to what extent) because it impermissibly burdens the implied freedom of political communication, contrary to the Commonwealth Constitution?”
2. “What, if any, relief should be granted to the plaintiffs?”
The High Court referred to the three-part test for laws affecting the implied freedom of political communication, citing Babet v Commonwealth (2025) 99 ALJR 883, Farmer v Commonwealth (2025) 99 ALJR 1408 (at [1421]) and Ravbar v Commonwealth (2025) 99 ALJR 1000:
1. “Does the impugned law effectively burden freedom of communication about governmental or political matters in its terms, operation or effect?
2. “Is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
3. “Is the impugned law reasonably appropriate and adapted to advance that purpose in a manner that is compatible with the maintenance of that constitutionally prescribed system of government?” (at [27]).
The plaintiffs had stood for election in the 2022 Victorian state election, under the definition of the s206 of the Electoral Act 2002 (Vic) and, as such, were bound by Part 12 of the Electoral Act.
Part 12 had been introduced in an amendment in 2018 with:
“A stated purpose of the 2018 Amendment Act was to ‘enhance the integrity of the electoral system by prohibiting political donations from certain sources and introducing a political donations disclosure and reporting scheme’” (at [7]).
The purpose of the amendment was to minimise the influence of single donors by capping most political donations at $4,000 (indexed each year). The High Court cited the explanatory memoranda, which stated that it “will ensure a level playing field and provide equal participation in the electoral process, reducing the potential for those with ‘deep pockets’ to try and exert greater influence” (at [42]).
There were several conditions imposed under the amendment, including the eligibility criteria. Prior to the amendment, the only cap was of $50,000 for the operators of certain casinos and gambling licensing holders. In contrast, one plaintiff submitted that their donations from Climate 2000 would have been between $50,000 and $200,000.
The State of Victoria submitted that the cap was ameliorated by public funding, but the High Court rejected that argument on the basis that the public funding provided by the Electoral Act: “(i) is not necessarily equivalent to the amount a registered political party or candidate might otherwise have raised by way of political donations prior to the imposition of the general cap, (ii) is generally paid in arrears; and has no impact on the burden in respect of regulated persons and entities other than registered political parties or independent candidates who satisfy the eligibility criteria” (at [33]).
The eligibility criteria required that entities must have been appointed prior to 1 July 2020. Only three major parties – Labor, Liberal and the National Party – had appointed their entities prior to the eligibility date. In addition, they all had significant holdings.
The High Court held that severing only the problematic time limitation or other related provisions in Pt 12 was unworkable, as the provisions were too interconnected. As a result, the Court declared Pt 12 of the Electoral Act wholly invalid.
