The Republic of India v CC Devas (Mauritius) Ltd and others

Section 45 is a little-known provision of the Act which permits the Court to determine questions of law arising in the course of arbitral proceedings.

The Republic of India is currently engaged in an investor-State arbitration against certain Mauritian companies (the Devas entities) governed by the 1976 UNCITRAL Rules with its seat in London. After the arbitration was commenced, the Devas companies were placed into administration in Mauritius. An issue then arose as to who had authority on behalf of the Devas entities to instruct lawyers to represent them in the arbitration (either their administrator or lawyers previously appointed to act for them). The tribunal decided in a procedural order that the administrator did not have such authority.

Thereafter, the Republic of India issued a section 45 application in the Commercial Court seeking a determination of the question of law as to which law a tribunal should apply to determine the question of authority in these circumstances. The Devas entities then applied for a hearing of preliminary issues.

In its judgment dated 30 January 2026, the Court (Trower J) determined all of the preliminary issues in India’s favour, finding that:

1. The Court has jurisdiction to hear the section 45 application notwithstanding that the lawyers previously appointed to act for the Devas entities did not consent to it.
2. The section 45 application is not an impermissible challenge to the tribunal’s relevant procedural order.
3. Section 45 is not only concerned with prospective questions of law but is capable in principle of being engaged in relation to questions of law which the tribunal has already decided in a procedural order.
4. Section 45 is not ousted despite the fact that the claims in the arbitration are governed by international law in circumstances where the question which the Court is being asked to determine is not one which involved the tribunal having a discretion to apply the conflict of laws rules which it considered appropriate.

The decision is an important one in confirming the breadth of applicability of section 45 and the extent to which an English-seated tribunal is required to apply English conflicts rules.

Andrew Green KC, Peter Head and Myron Phua are acting for the Republic of India, instructed by PCB Byrne.

The judgment can be viewed here.