International Arbitration Conference

The Sofitel Sydney Wentworth, Sydney

International Arbitration Conference 2025: Revolutions and Solutions: Future-Proofing Arbitration 

AWW Wellbeing Programme: Session One

ACICA x ACICA Sustainability Taskforce and Campaign for Greener Arbitrations Walk & Talk

What a fantastic start to Australian Arbitration Week (AAW) in beautiful Sydney! The first event of the AAW Wellbeing Programme combined fresh air, exercise, and sustainability insights in the form of a “Walk & Talk,” hosted by ACICA in collaboration with the Sustainability Taskforce and Campaign for Greener Arbitrations.

Attendees gathered at the Sofitel Sydney Wentworth for walking and running routes that took them past the iconic Sydney Opera House, before finishing at The Avenue on Chifley for coffee and sweet treats, generously provided by our generous sponsor, BRG.

This outdoor session offered participants a chance to connect in a relaxed setting while learning about the ACICA Sustainability Protocol, sharing ideas on how arbitration can become more environmentally conscious and sustainable. It was the perfect energising start to the day!

A huge thank you to our walk and run leaders: Thomas Fearis, Daisy Mallett, Deborah Tomkinson, and Caroline Swartz-Zern, whose guidance ensured everyone enjoyed a safe and enjoyable experience.

40 Years Forward: Arbitration in 2065 – Innovation across borders

ACICA45

Rapporteurs: Anna Grunseit and Jarrah Lindhout, Corrs Chambers Westgarth

Moderator: Eden Jardine, Senior Associate, Corrs Chambers Westgarth

Speakers:

• Anna Grunseit, Special Counsel, Corrs Chambers Westgarth
• Robert Kirkness, Barrister, Thorndon Chambers
• Sareena Oberoi, Principal Corporate Counsel, Microsoft
• Isaac Wong, Associate Director, BRG
• Carlotta Bruessel, Senior Associate, Nishimura & Asahi

Event report:

In celebration of the 40^th anniversary of the Australian Centre for International Commercial Arbitration (“ACICA”), ACICA45, the ACICA’s group for young and emerging practitioners, hosted a thought-provoking breakfast panel at Corrs Chambers Westgarth’s Sydney office to explore the future of arbitration and what it means for arbitration practitioners today. Peering into the crystal ball, the panel predicted how technological innovation and shifting global dynamics may shape arbitration over the next four decades.

View the full event report on the Kluwer Arbitration Blog.

Multi-party, multi-contract disputes: must it be inherently complex?  

Hosted by: White & Case 

Rapporteur: Yazmin Judd, White & Case  

Moderator: Lee Carroll, White & Case 

Speakers:

• Professor Bernard Hanotiau, Hanotiau Tossens Goldman 
• Michael Polkinghorne, White & Case 
• Robert Kirkness, Thorndon Chambers 
• Daisy Mallett, International Arbitrator 

Event report:

Held at White & Case, this panel event kicked off Australian Arbitration Week with an important proposition:  How can two competing principles (one being the fundamental notion that arbitration derives its authority from the consent of the parties, and the other being the idea that arbitration should serve as a dispute resolution mechanism that suits the needs of international commerce) be balanced when it comes to multi-party, multi-contract disputes? 

We were extremely lucky to have Professor Bernard Hanotiau, the expert on this exact topic and the author of the book Complex Arbitrations: Multi-Party, Multi-Contract and Multi-Issue – A Comparative Study, on this morning’s panel.  Joining him were highly experienced and internationally recognised counsel and arbitrators: Michael Polkinghorne, Robert Kirkness and Daisy Mallett. 

Lee Carroll, the moderator of the panel, kicked off the session by explaining the key conundrum regularly faced by parties to commercial arbitrations, in particular, on large projects, where interconnected contracts involving multiple parties across multiple jurisdictions are becoming increasingly prevalent.  What happens when there are disputes under those related contracts, in relation to the same or similar issues, and those contracts have different dispute resolution clauses?  In order to consolidate, what are the requirements for compatibility of arbitration agreements?   

Consolidation 

Professor Hanotiau and Robert shared their insights by reference to case law emanating from Switzerland, Hong Kong and New Zealand.  In particular, the approach taken in a recent case from the High Court of New Zealand (Acanthus Ltd v Watercare Services Ltd [2025] NZHC 749) was discussed.  Professor Hanotiau explained the application of the Fiona Trust presumption (the principle that rational business parties intend to have their disputes resolved by the same decision-maker).  Robert’s takeaway was that the case provides an interesting question on what the starting point for such an exercise should be – should it be the interpretive approach indeed adopted, or should the starting point be the question: “How can these arbitration agreements be harmonised?”.  

Daisy then gave the audience a summary on consolidation, highlighting the scenario most relevant to today’s panel: same transaction or series of transactions, but separate contracts.  In that scenario, compatibility of arbitration agreements is required in order to have the arbitrations consolidated.  The typical criteria for compatibility in most of the arbitral rules (save for the UNCITRAL Rules which do not contain consolidation provisions) require the same number of arbitrators or process for appointment of the Tribunal, the same arbitral seats, and the same arbitral rules.  Most of the arbitral rules also permit consolidation where (a) the parties agree (which is the most efficient way to consolidate), or (b) the multiple claims are made under the same contract (and are therefore subject to the same arbitration agreement). 

Michael provided some sector-specific insight on the issue of incompatibility (and inability to consolidate).  He explained that it is common in long-term gas supply contracts for there to be multiple amendments to these contracts over the years.  Often the amendments deal with small matters (such as a change in entity name), and each of the amending instruments may have their own dispute resolution clause, which, over time, end up being inconsistent with one another.  How these clauses can be married up is harder than you might think. 

Concurrent hearings 

Where consolidation is not possible, we often hear about arbitrations being coordinated or heard concurrently.  Robert provided some helpful tips to counsel for managing concurrent arbitrations in situations where the Tribunal is not the same in each – the main being to ensure you are conscious of the fact that the Tribunal will have knowledge that the concurrent dispute exists, but will not have visibility over what is being claimed in that concurrent dispute (and for that reason, will exercise a high degree of skepticism, especially when it comes to assessing quantum).  He emphasised that it is important to build trust and to make it clear to the Tribunal that the claim is not an abuse of process.  This can be done by, for example, attempting to (and documenting early intentions to) have the arbitrations consolidated, and/or providing an undertaking as to damages regarding any double recovery.  As to the former – Robert explained that this is what the claimant did in the Ampal v Egypt case, where the shareholders brought multiple, concurrent, arbitrations.  An issue arose as to whether the concurrent arbitrations represented an abuse of process as one of the parties in the corporate structure could benefit from both awards.  Because there had been an early, documented, intention on the part of the claimant to consolidate the arbitrations (to which there was no agreement), the Tribunal allowed the claimant to cure what would be, in its opinion, an abuse of process, by making an election.  Robert highlighted this case as an example of the types of tools that Tribunals have, and one of the ‘soft’ ways that a Tribunal can ensure a dispute works properly.  

Joinder 

Finally, Daisy explained when third parties can be joined to (or can intervene in) an arbitration between contracting parties, which is generally quite rare.  Most arbitral rules specify when joinder is permitted (usually quite early on) and how it can be permitted (by application to the institute or the Tribunal, if constituted at that point in time).   

Conclusion 

In sum, the discussion provided valuable insight into the ways in which multi-party, multi-contract disputes can be run efficiently using the tools available under the various arbitral rules. The panel highlighted the importance of proactivity and foresight when it comes to (a) drafting dispute resolution clauses (including by considering issues of compatibility and the appropriate arbitral rules), and (b) commencing a dispute under the relevant contract or contracts. 

Charting a course for the resolution of maritime disputes 

Australian Maritime and Transport Arbitration Commission (AMTAC, the organiser) and Holding Redlich (the venue host) 

Rapporteur:  Jordon He, Ashurst 

• Welcome by Geoff Farnsworth, Partner of Holding Redlich 
• Chair: Gregory Nell SC, AMTAC Chair and Senior Counsel, New Chambers, Sydney

Speakers: 

• The Hon. Steven Rares KC, Arbitrator and Mediator, 12 Wentworth Selborne Chambers Sydney former Judge of the Federal Court of Australia 
• Jesse Kennedy, Barrister, 11 Wentworth Chambers, Sydney 
• Anna Elizabeth, Barrister, 5 Wentworth Chambers, Sydney 

Event report:

Maritime arbitration is a fast-growing area and there is an increasing amount of maritime disputes in Australia over the recent years.  In this morning’s session, the three esteemed speakers each delivered a speech on this topic, offering their insights and experience. 

The Hon Steven Rares KC—”The Best Seat in the House: The Benefits Australia Has to Offer” 

Steven, in his speech, emphasised that Australia has many benefits that, on paper, should put it ahead of overseas jurisdictions as an attractive option to host maritime disputes.  He noted that factors which should aid the attractiveness of Australia as a place to host maritime disputes include: 

1. the large amount of seaborne cargo coming in and out of Australia—according to the UN Trade and Development (UNCTAD), Australia loads the most seaborne cargo in the world, followed by the United States of America; 
2. an independent judiciary—in 2010, the head of the judiciary in Shandong, China said that he admired the judiciary of Australia, as the judges in Australia were independent and upheld the rule of law; 
3. a recognised legal skillset in Australia to host maritime disputes—Australian lawyers are well regarded internationally, often providing services at a far lower price point than lawyers in overseas jurisdictions for the same quality. 

However, Steven noted that Australia does not enjoy the success that overseas jurisdictions such as Singapore enjoy. 

One solution which Steven proposed was that there needs to be a state-of-the-art arbitration facility at a port city in Australia, developed with government support.  Steven noted that this was what Singapore has done—establishing Maxwell Chambers, which houses SIAC, and also providing favourable tax treatments for arbitrators.  As such, Australia should consider either constructing a state-of-the-art arbitration facility or upgrading its current facilities. 

Jesse Kennedy—”Mandatory Laws and the Duties of an Arbitrator: A Carmichael Rail Counterfactual” 

In his speech, Jesse considered the case of Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GMBH [2024] HCA 4.  The case concerned the transport of steel rails on a carrier from South Australia to Queensland, and the relevant bill of lading provided that it was governed by English law and London-seated arbitration.  The interesting question, which was not fully answered by the Court, was whether the London-seated tribunal, while applying English law, ought to apply the mandatory laws of Australia, and whether the failure to do so would render the award unenforceable in Australia on public policy grounds. 

Jesse argued that the answer is yes: a tribunal should seek to apply the mandatory laws of any jurisdiction in which the parties may likely enforce arbitral awards, with the scope being qualified to jurisdictions in which parties, at the time of entering into the contract, had foreseen that the awards may be enforced.  Jesse argued that this arises out of the implied duty for arbitrators to render a binding award, which itself comes from a reasonable construction of the parties’ intentions—it cannot be the case that parties enter into an arbitration agreement without intending for any award arising out of the arbitral process to be enforceable. 

Anna Elizabeth—”Anti-Suit Injunctions and Arbitration in a Maritime Context” 

Anna considered the Singaporean case of Cosco Shipping Specialised Carriers Co Ltd v PT Oki Pulp and Paper Mills [2025] 2 Lloyd’s Rep 173, key take aways and anti-suit injunctions in an Australian context. 

Anti-suit injunctions sometimes arise when parties submit their dispute in breach of an exclusive jurisdiction agreement. 

In the Cosco case, the Singapore Court of Appeal had to consider whether tortious claims which extended beyond the terms of the underlying contract arose “out of or in connection with” the arbitration agreement. 

While the first instance court held that the tortious claim fell outside the arbitration agreement, the Singapore Court of Appeal found that the tortious claim arose “out of or in connection with” the arbitration agreement, which justified anti-suit relief.  The Court, in making this finding, stated that the arbitration agreement should be construed with common sense and in a manner consistent with rational businessman“. 

Relevantly, the Court mentioned that Australian courts likewise adopt a common-sense approach to the ascertainment of the scope of an arbitration clause, similar to the English and Singapore courts. 

Investor State Dispute Settlement in the Asia Pacific 

NSW Bar Association 

Rapporteur: Sean Yalcinkaya, ACICA Intern 

Moderator: Lucy Martinez, Martinez Arbitration

Speakers:

• Professor Chester Brown SC, 7 Wentworth Selborne
• Christina Trahanas, Omnia Chambers
• Callista Harris, 7 Wentworth Selborne
• Anna Kirk, Bankside Chambers
• Kyle Dickson-Smith, Office of International Law

Event report:

The panel discussion covered two topics. Firstly, Kyle Dickson-Smith, Chester Brown SC and Anna Kirk reviewed developments in investor-state dispute settlement (ISDS) in the Asia-Pacific region (APAC). Following this, Callista Harris and Christina Trahanas discussed the impact which the 2025 Advisory Opinion of the ICJ on states’ climate obligations will have on investor-state disputes. 

Kyle Dickson-Smith began the discussion by presenting general statistics on ISDS in the APAC region, painting a picture that although the APAC region is a significant contributor to the world economy, ISDS disputes originate from the region at a disproportionately low rate. This may be partially explained by a preference to settle disputes through mediation. Professor Chester Brown SC added that the design of investment treaties in the region, which places little to no obligations on investors, creates low-risk investment relationships. This in turn leads to fewer disputes. Other states, such as Brazil, have taken a different approach, avoiding ISDS almost entirely by incorporating consensus-building and settlement mechanisms into treaties He also discussed the proposed standing mechanism for the resolution of international investment disputes by UNCITRAL Working Group III, and the potential methods to appoint members of the Tribunals.  

Anna Kirk noted that New Zealand, on both sides of the political aisle, has blocked ISDS measures. The fear of regulatory chill’, or the fear of losing the ability to legislate in the interest of the country out of prudence for investors’ rights, could be one explanation for the State’s strong opposition towards ISDS. This hesitation towards ISDS is despite New Zealand’s strong position as pro-international order and pro-WTO. 

The panel added that framing  APAC as entirely against ISDS is an incomplete picture as the region produces a disproportionately high number of arbitrators and other arbitration professionals. Further, the region has seen a significant increase in ICC-administered disputes.  

In the next section of the discussion, Callista Harris provided an overview of publicly-known information on the Zeph proceedings. These proceedings concern a dispute between Clive Palmer and the Australian government. Zeph was incorporated in Singapore before the dispute had commenced, thus providing remedies through Australia’s investor treaties. It is not yet known which of the four jurisdictional and/or admissibility grounds were found decisively in favour of Australia.  

In the remainder of the session, Callista Harris and Christina Trahanas discussed the ICJ’s recent Advisory Opinion on states’ climate obligations. Firstly, an overview of the procedure’s history, having been led by Vanuatu and other Pacific island states was given. Following this, the impacts of the court’s unanimous opinion, articulating states’ unwavering climate change responsibilities, on investment arbitration were discussed. Judge Cleveland had noted in her Advisory Opinion declaration that ISDS may be a strong catalyst for states’ regulatory chilling in the face of enacting climate regulations. Further, investors’ pre-investment expectations ought to be interpreted in light of these state responsibilities. In turn, environmental carve-out clauses may become more common in treaties, and investors may use the Advisory Opinion to craft arguments regarding the minimum standard of treatment that States were required to take 

From Alliance to Arbitration: Navigating the spectrum of disputes in the context of evolving global security frameworks, increased defence spending and the AUKUS alliance

DLA Piper

Rapporteur: Saoirse O’Dea, DLA Piper 

• Francesca Rush, Chief Counsel, Australian Department of Defence
• James Couche, Vice President of Legal and Contracts, Thales
• Gitanjali Bajaj, Partner, DLA Piper
• John Gallagher, Partner, DLA Piper

Event report:

Australia’s defence sector is at a critical inflection point. In the wake of rising global conflicts, Australia is strengthening its strategic alliances through the Australia-United Kingdom-United States trilateral security partnership (“AUKUS alliance“) and beyond, while increasing defence spending and harnessing technological innovation. This surge in activity is likely to usher in a new wave of legal and regulatory complexity, in which increasingly complex and multi-jurisdictional disputes are inevitable.

View the full event report on the Kluwer Arbitration Blog.

Charting a Better Course: A Fireside Chat on the Future of Arbitration in Australia

Corrs Chambers Westgarth 

Rapporteurs: Kala Campbell (Senior Associate) and Tom Lukic (Law Graduate), Corrs Chambers Westgarth  

Speakers:

• Nastasja Suhadolnik, Head of Arbitration, Corrs Chambers Westgarth 
• Carla Mills, Partner, Corrs Chambers Westgarth 
• Professor Doug Jones AO, Independent Arbitrator 
• The Hon James Allsop AC KC, Independent Arbitrator 

Event report:

Corrs Chambers Westgarth was pleased to host a conversation between two of Australia’s leading arbitrators, Professor Doug Jones AO and the Hon James Allsop AC KC, who are at the forefront of driving procedural innovation in arbitration globally. The discussion was moderated by Nastasja Suhadolnik, Head of Arbitration and Partner at Corrs, and Carla Mills, a Partner in Corrs’ arbitration and projects practice groups.  

The discussion focused on the role of arbitrators, counsel, lawyers and clients in the process of procedural innovation to drive efficiency in arbitration.  There was a standing room only crowd, who were eager to hear the panel’s reflections on the innovation required to deliver on the promise of arbitration in Australia.   

On the drive for efficiency, the panel noted that, although arbitration is a party designed process, it can mimic the time and cost delays of litigation.  In the Australian context, Professor Jones noted that the efficiency experienced in particular courts has created a complacency among Australian practitioners, who are less likely to think outside the norms of court-based dispute resolution practices. 

Professor Jones described how there was no one efficient way to run an arbitration, and that practitioners should strive to design an innovative process that fits the dispute.  Mr Allsop emphasised that one of the most important factors driving the efficient course of arbitral proceedings is a dispute resolution culture which is cooperative, respectful and civil.  Mr Allsop observed that, in his experience, such a culture increases efficiency and minimises costs as parties are able to cooperate to find innovative ways to limit the issues in dispute. Ms Mills raised the importance of active case management in arbitral disputes and asked the panel how arbitrators might manage cases to encourage procedural innovation.  Professor Jones considered that a key aspect of effective and active case management is ensuring that the arbitrators and senior counsel are engaged in the detail of the issues right from the start of the arbitration.  Professor Jones observed that when senior counsel are across the details at an early stage, they can actively consider creative procedural steps tailored to the dispute.  Mr Allsop agreed, and warned that active case management is often mistaken for arbitrators telling the parties what they want.  That creates a culture where practitioners stop thinking creatively and simply expect that the tribunal will tell them what to do.  The panel agreed that the better approach is for parties to drive tailored procedural solutions as early in the process as possible.  

The panel agreed that arbitration practitioners should avoid the rigidity of the processes which define litigation procedure in Australia.  Mr Allsop warned against procedural frameworks which insist upon a series of procedural requirements, including the exhaustive pleading of facts, before the parties are actually required to think deeply about the issues in dispute.  Professor Jones suggested that there was value in lawyers persuading clients of the benefits of early case management and innovative procedural frameworks in arbitration to avoid arbitration simply mimicking court processes behind closed doors.  

Ms Suhadolnik raised the familiar issue of “due process paranoia”.  Professor Jones noted that this can have a paralysing effect on arbitrators who, for fear of a set aside application, are less likely to be as decisive as judges.  Professor Jones noted that this “paranoia” can take effect at two stages 

1. when the parties are designing tribunal procedure; and  
2. during the pendency of the arbitration, when parties seek to play games with adjournments, amendments and disputes concerning document disclosure or evidence. 

In relation to procedural innovation for evidence in arbitration, the panel explored different procedural frameworks for expert evidence. Professor Jones explained a process whereby expert disciplines are identified immediately, opposing experts engage with each other early in the process to agree on the issues and questions to be answered, they produce a joint report which identifies areas of agreement and disagreement, and any individual expert reports are confined to only the issues in dispute.  Mr Allsop agreed that there is value in allowing experts to confer early in the arbitral process and to engage, with the tribunal where appropriate, in an iterative process of report drafting which narrows the issues in dispute.  

Ms Mills concluded the panel by asking the panel to share the one thing they would change about Australian arbitration culture. Mr Allsop wished to reinvigorate the sense among Australian practitioners that it is their dispute to shape, and to think creatively about how to bring about procedural innovation.  Professor Jones agreed and restated that practitioners should not bind themselves to the established practices of major courts when conceptualising procedures in arbitration.  

Navigating Nationalism: Impact on International Projects and Disputes  

Ashurst 

Rapporteur:  Jordon He, Ashurst 

Panel Moderators:  

• Jeremy Chenoweth, Partner, Ashurst, Sydney and Brisbane 
• Erin Eckhoff, Senior Associate, Ashurst, Sydney 

Panellists 

• Bruce Wolpe, Author and Senior Fellow, United States Studies Centre 
• Michael Henao, Partner, Ashurst, Port Moresby 
• Kiri Parr, Independent Consultant, Academic and Dispute Board Practitioner 
• Brenda Horrigan, Independent Arbitrator 

Event report:

This afternoon’s session involved an interesting discussion regarding whether the resurgence of nationalism and protectionism is destabilising long-settled assumptions about trade, dispute resolution, and project risk allocation. 

The discussion ranged from an in-depth analysis of the American geopolitical position under Trump, to the impacts on international trade and practical advice for lawyers to navigate the uncertainty. 

Geopolitical Landscape 

Bruce is of the opinion that nationalism is certainly on the rise.  Drawing on his expertise in the political landscape of the United States, Bruce perceives the United States as retreating from its traditional “leader of the free world” role, thereby undermining multilateral trade structures such as the WTO.  President Trump’s “America First” posture exemplifies a coercive, unilateral style of deal-making that sidelines consensus-based institutions.  

Further, Bruce observed that France and other traditionally democratic states are experiencing strengthened grassroots right-wing movements, further eroding liberal multilateralism. 

Michael opined that nationalism, while often viewed negatively, can also reflect a search for community and shared identity.  He advised that, regardless of value judgements, practitioners must recognise that “uncertainty is the certainty” in current geopolitics.  

Impacts on International Trade and Investment 

Bruce noted that the WTO Appellate Body is effectively defunct.  Furthermore, states are increasingly hostile to investor-state dispute settlement (ISDS), arguing for sovereign discretion over what is “right or wrong”. 

On the same note, Jeremy observed that some corporations in America may have strong connections with the United States government, such that when there are adverse decisions from international trade dispute bodies such as the WTO, they may be able to mitigate the adverse effects using their ties with the government. 

Data Localisation and Information Controls 

Brenda discussed the difficulties that have arisen in light of increasing nationalism.  In China, Russia, and other jurisdictions, restrictions on the cross-border transfer of critical data (e.g. sub-soil information) complicate energy and resources deals. 

Even the United States now presents enforcement challenges comparable to those in “trickier” emerging markets, demanding sophisticated asset-location and enforcement planning. 

Project Planning and Delivery Consequences 

Kiri noted that there is a return of “rise and fall” risk clauses in light of increasing nationalism.  Volatile pricing and supply shocks (paralleling post-WWI patterns) have revived debates on contractual mechanisms that were largely dormant during decades of stability. 

The differentiator between companies that can and cannot mitigate these risks—which are, in reality, unavoidable—is organisational capability.  Companies with robust internal risk frameworks navigate the transition more effectively; others face cost blowouts and disputes. 

Energy and Trade Disputes 

The panellists noted that protectionist policies create layered complexity in energy arbitration: factual investigation is impeded by data restrictions and competing domestic regulations.  

Successful claimants increasingly rely on asset tracing and enforcement in third-state jurisdictions.  By way of example, Brenda mentioned a case in which she was involved, where a party claimed damages against a state-owned entity in Uzbekistan.  The claimant, anticipating that the Uzbek courts would not be impartial in enforcing an arbitral award against the respondent, had ringfenced the respondent’s assets in China.  The result was that the respondent complied with the arbitral award, as it knew the claimant was able to go after the assets in China even if the Uzbek courts had refused enforcement of the award. 

Evolution of Legal Conventions and Arbitration Practice 

Regarding the role of arbitral institutions in this changing world, the panellists noted that neutral “safe spaces” detached from any single government are viewed as essential to preserving investor confidence amid sovereign assertiveness.  ACICA and similar bodies must also reinforce procedural fairness and independence to remain credible. 

Practical Takeaways for Counsel and Project Teams 

• Lawyers should expect and price for instability—the “baseline” assumptions of the globalised 1990s–2010s no longer apply.  

• Conduct jurisdiction-by-jurisdiction due diligence on data-transfer rules, foreign investment controls, and enforcement prospects.  

• Draft dispute-resolution clauses that provide flexible, neutral venues and contemplate multi-layer enforcement strategies.  

• Revisit escalation mechanisms, price-adjustment clauses, and force majeure language with an eye to political as well as market shocks.  

• Invest in continuous scenario-planning: nationalism often manifests suddenly through executive decrees or election results. 

The Asset Trail: Preventive and Enforcement Strategies in the Asia Pacific

Jones Day

Rapporteur: Erin Page

Moderator: Katie Mead

Panelists:

• Daniel Chaney
• Maria Yiasemides
• Kanaga Dharmanada SC

Event report:

This panel served as a stark reminder of the risks involved in the enforcement of arbitral awards, a helpful overview of potential mitigation strategies, and a warning to front-end lawyers drafting contracts with enforcement risks: please involve your disputes team! 

To kick off the panel, Maria Yiasemides set out a comprehensive overview of the considerations that must be taken into account at various stages of the contractual process from negotiation to enforcement.  

Top Enforcement Considerations:  

At the contract negotiation stage: 

• The relevant seat of arbitration;  
• The applicable law to the dispute and to the interpretation of the arbitration agreement;  
• The remedies available to parties under the jurisdiction of the seat and the jurisdictions where enforcement may be sought;  
• Obtaining asset maps and counter-party maps when negotiations remain friendly or implementing due diligence as a condition precedent;  
• Inbuilt enforcement rights under the contract; 
• Reserving rights to seek court support (across various jurisdictions); and 
• If dealing with a sovereign counter-party, whether waiver of sovereign immunity is necessary.  

At the pre-arbitration stage:  

• Having a comprehensive understanding of the parties’ asset map and governance structure; 
• Whether asset preservation orders or other interim measures may be obtained; 
• Ensuring due process is followed in exercising any contractual rights and pre-arbitral requirements; 
• Potential combination of arbitration measures with court support in jurisdictions where quick relief is available; and 
• Third party assistance and putting relevant third parties including banks and asset holding institutions on notice. 

Challenges in Discovery  

Daniel Chaney provided valuable commentary on the various challenges that arise when attempting to obtain asset information during the discovery process, particularly where such information is not sought at the pre-contractual stage. Crucially, counsel must be able to connect this information to a material fact in dispute and be prepared to employ multiple avenues to obtain it. These may include, most notably, support from the tribunal (reinforced by the risk of adverse inferences and tribunal disfavour for non-compliant parties) as well as interim relief mechanisms and subpoenas. 

Delightfully, crowd discussion on subpoenas proved insightful and constructive. Panellists and audience members engaged in a thoughtful exchange about the proceedings between Duro and Samsung and applications for subpoena under the International Arbitration Act 1974 (Cth). While subpoena applications can be brought for arbitrations seated within Australia, the decision of Re Samsung C & T Corporation [2017] FCA 1169 stood out for the narrow approach taken by Justice Gilmore in declining to issue a subpoena for a foreign-seated arbitration. This marked a departure from both his earlier stance and the more arbitration-friendly position taken by Justice Martin of the Western Australian Supreme Court. 

Accordingly, given the current state of the case law, practitioners should exercise caution when seeking to subpoena individuals in Australia in connection with foreign-seated arbitrations, as the process may be more complex and require alternative measures such as letters rogatory or involvement of the Attorney-General. 

The Australian position contrasts with the more explicit legislative frameworks in Hong Kong, Singapore, and England, where the relevant statutes expressly confer subpoena powers for foreign seated arbitrations.  

Issues with State Immunity  

When dealing with enforcement against state actors, Kanaga Dharmananda SC expertly outlined the key issues parties must consider when dealing with state immunity in this area and the potential for its waiver. He discussed recent decisions involving the Kingdom of Spain and the Republic of India, noting that the Australian arbitration community is closely watching the pending High Court appeal from the Full Federal Court in Republic of India v CCDM Holdings, LLC [2025] FCAFC 2 which held that no waiver of state immunity had occurred because of India’s reservation to the New York Convention.  

Daniel Chaney also briefly touched on the increasing popularity of assignment of awards given the issues with enforcement against state actors particularly following the recent Kingdom of Spain decisions.  

Enforcement Issues in APAC 

Finally, the panellists addressed key enforcement challenges across the APAC region, highlighting issues such as weak governance, lengthy court delays, inadequate anti-corruption frameworks, and limited confidence in the judiciary. Indonesia and Vietnam were identified as particularly challenging jurisdictions for enforcement due to extensive additional procedures for foreign seated arbitral awards. All panellists emphasised the critical importance of engaging local counsel early to navigate jurisdiction-specific complexities and improve enforcement prospects. 

Overall, the panel was highly engaging, offering valuable insights and practical guidance for practitioners navigating enforcement challenges. 

Digital assets and international investment law: Bridging the regulatory gap  

Corrs Chambers Westgarth 

Rapporteur: Nathaniel Birchall, Corrs Chambers Westgarth

Moderators:  

• Natasja Suhadolnik, Partner, Corrs Chambers Westgarth 
• Oliver Spackman, Special Counsel, Corrs Chambers Westgarth

 Speakers:  

• Robert Kirkness, Barrister, Thorndon Chambers (New Zealand)
• Callista Harris, Barrister, 7 Wentworth Selborne and 3 Verulam Buildings (London)
• Lucas Bastin KC, Barrister, Banco Chambers and Essex Court Chambers (London)
• Angela Ha, Counsel, Volterra Fietta (London)

Event Report:  

This session explored a truly novel and rapidly evolving field: the intersection of digital assets and international investment law. The panel revisited the first principles of investment treaty protection and considered how these principles apply to new asset classes and emerging technologies. 

The status of digital assets and infrastructure as protected investments 

Robert Kirkness opened the discussion by examining whether existing treaty frameworks accommodate the full spectrum of digital and digital-adjacent assets: from tangible infrastructure to intangible rights, data, and novel asset classes such as cryptocurrencies. He noted significant uncertainty regarding whether these new asset types are captured by investment treaties. This uncertainty stems from: (a) a lack of clarity around the application of domestic laws (particularly property laws) to these assets; and (b) the limited legal architecture and regulatory frameworks surrounding them. 

However, Kirkness argued that the flexibility embedded in most existing treaties may mitigate these concerns. Broad and often non-exhaustive definitions of terms like “assets” and “investment” are likely to equip tribunals with the tools needed to arbitrate disputes involving these new asset types. 

Kirkness also discussed that, when advising clients, lawyers should consider: 

• Whether the treaty language is sufficiently flexible to cover the digital asset or infrastructure in question; and 
• The relevant domestic law and legal infrastructure surrounding the asset. 

Territoriality of digital investments 

Most treaties require that an investment be “made in the territory of” the host state. While this is straightforward for tangible assets, its application to digital assets and data — often created, stored, or processed outside the host state  —is less clear. 

Lucas Bastin KC observed that jurisprudence on territoriality as a jurisdictional criterion in investment treaty disputes is limited. The foundational cases in this area, such as Fedax v Venezuela, Deutsche Bank v Sri Lanka, and Abaclat v Argentine Republic, have established principles that remain largely unchallenged. Bastin KC predicted that the pervasive nature of digital assets will prompt tribunals to revisit these principles, and that renewed academic interest in territoriality should be expected. 

Callista Harris explored a related issue: how current treaty frameworks address investments in extraterritorial domains. Assets such as satellites in outer space and subsea cables traversing the high seas raise complex territoriality questions. These assets often lie beyond the sovereign reach of any single state, complicating the application and enforcement of treaty protections. 

Harris suggested that arbitrators must consider the broader context of such assets. Where a state exercises control over an extraterritorial asset (e.g., through the licensing of satellite use) territorial requirements may be satisfied. However, interference by third-party states complicates matters and may fall outside the scope of an applicable investment treaty. In these circumstances, parties may have to turn to alternative frameworks such as space law or the law of the sea for recourse. 

Application of investment treaties to new and emerging technologies 

The panel discussed how the digital economy is overtaking traditional industries, prompting new regulatory responses and investment treaty claims. Social media platforms and cryptocurrencies present particularly unique challenges. 

Kirkness noted that valuation is a key concern in disputes involving social media. Given the international nature of these platforms, isolating losses attributable to a single state’s actions can be difficult. Claimants must be strategic in their valuation methods and evidentiary submissions. 

Regarding cryptocurrencies, Harris argued that classification as an “investment” will depend on the type of coin involved. Stablecoins, which resemble cash, are less likely to qualify, whereas token-based cryptocurrencies may meet the investment criteria due to their similarity to traditional assets like shares. 

State defences to investment treaty claims in the context of technology disputes 

The panel then examined the role of “security,” “public welfare,” and “right to regulate” defences in technology-related disputes. Angela Ha noted that the availability of these defences depends on the specific treaty. She emphasised that first principles of treaty interpretation will continue to apply, even in digital contexts. 

However, Ha predicted that the uncertainty surrounding emerging asset classes may lead to more robust security clauses in future treaties. For example, the 2024 India–UAE Bilateral Investment Treaty includes a clause allowing the host state to take measures to protect “essential security interests,” which are not subject to arbitral review, even if asserted after arbitration proceedings begin. 

Evolution of treaties in the era of digitization and AI  

Finally, the panel addressed the growing trend of states including data protection and privacy carve-outs in investment and trade treaties. Bastin KC argued that such carve-outs are generally unnecessary, as tribunals already recognise a broad right to regulate. He cautioned that explicitly listing exceptions may be counterproductive. Doing so invites narrow interpretations by tribunals, potentially excluding future technologies and industries not covered by the carve-outs. This could hinder the adaptability of treaties in a rapidly evolving digital landscape. 

Conclusion  

Ultimately, the panel provided a thought-provoking examination of how international investment law is adapting to the digital age. While the panel considered that first principles remain relevant in the face of new and emerging technologies, parties to investor-state disputes must remain flexible as to how they apply these principles.  

Dealing with Fraud and Corruption in International Arbitration 

Clifford Chance 

Rapporteur: Campbell Norton, Clifford Chance

Moderator: Cameron Hassall, Partner, Head of Litigation & Dispute Resolution (APAC), Clifford Chance 

Speakers: 

• Philip Riches KC, Barrister, Twenty Essex
• Jonathon Redwood SC, Barrister, Twenty Essex
• Tess Forge, Counsel, Clifford Chance
• Elliot Luke, Counsel, Clifford Chance

 Event report:

The session was opened by moderator Cameron Hassall, who introduced the topic of ‘safeguarding integrity in international arbitration‘, harking back to the comments of Justice Bell during his 2025 International Arbitration Conference keynote speech, emphasising that it is incumbent on the judiciary, arbitrators, counsel and experts assisting the tribunal to deal with the enhanced risk of AI-generated false and fraudulent evidence in both arbitration and litigation.  Mr Hassall then introduced the four panellists, outlining the distinct perspectives each would bring on how tribunals, counsel, courts, and independent experts address the potential for fraud, corruption, and bribery in arbitral proceedings. 

Defining fraud, bribery and corruption 

Tess Forge opened with a comprehensive overview of the legal definitions and prosecutorial challenges surrounding bribery and corruption. She emphasised that, while the terms are often used interchangeably, they have distinct legal meanings across jurisdictions. Corruption broadly refers to the abuse of power for private gain, encompassing acts such as embezzlement and misuse of public office. Bribery, by contrast, typically involves the offering or acceptance of something of value to influence an official act, with legal distinctions often drawn between public and private sector contexts. 

Ms Forge outlined the three core elements of bribery—‘quid’ (undue advantage), ‘pro’ (intent to influence), and ‘quo’ (resulting official act or omission)—and highlighted the evidentiary difficulties in proving each. These include tracing indirect payments, establishing intent, and demonstrating a causal link between the benefit and the act. Despite the broad investigative powers available to authorities, proving bribery remains challenging due to its covert nature. As a result, there is increasing reliance on self-reporting and negotiated settlements, such as deferred prosecution agreements, as pragmatic alternatives to full prosecutions. Ms Forge concluded by contrasting the robust investigative tools available in criminal proceedings with the more limited fact-finding powers of arbitral tribunals, raising important questions about how corruption is addressed in civil contexts. 

Fraud and corruption in play: Nigeria v P&ID and its implications 

Having set the scope of fraud, bribery and corruption, Philip Riches KC discussed the landmark case of Nigeria v. P&ID, a touchstone for discussions on fraud in arbitration. He traced the origins of the dispute, the $6.6 billion arbitral award in favour of P&ID, and Nigeria’s subsequent (successful) efforts to challenge the award on grounds of fraud. 

Mr Riches KC highlighted his three key takeaways from the proceedings, being: 

1. the crucial role that supervisory courts play in lifting the burden from arbitral tribunals; 
2. the importance of careful and incremental use of discovery and document production in establishing fraud and corruption; and 
3. the lack of clarity regarding how arbitral tribunals can investigate and manage fraud and corruption in international arbitration. 

Of particular note were Knowles J’s (intentionally) debate-provoking comments in the English High Court judgment as to whether arbitrators should be more inquisitive within the bounds of the proceedings before them (i.e. a somewhat subjective test), especially in cases involving large claim values and/or a sovereign State. Mr Riches KC also noted the profound effects of the judgment and Knowles J’s comments, including widespread debate regarding the duties of arbitrators (including remarks from Lord Hoffman, Chair of the P&ID v Nigeria Tribunal) and even the tabling of a proposed new provision in the UK Arbitration Act, as part of the 2025 reforms, requiring tribunals to safeguard proceedings against fraud and corruption (although this was not ultimately adopted).  

The ICC’s ‘red flags’ framework: an outline for assessing fraud and corruption in international arbitration 

Jonathon Redwood SC then turned to international arbitral guidance on fraud and corruption, discussing the ICC Task Force on Corruption’s red flag framework as a practical tool for identifying and assessing corruption risks in arbitration. The framework employs a three-step methodology: 

1. identifying general and specific red flags (such as high-risk countries and unusual payment structures, respectively);  
2. validating them through credible sources and due diligence; and  
3. assessing them against applicable legal standards (such as considering the quality and type of evidence, the possibility of drawing adverse inferences, etc.). 

The importance of distinguishing between suspicion and proof was stressed, noting that while red flags may raise concerns, they must be substantiated with reliable evidence. Mr Redwood SC also highlighted the lack of uniformity in evidentiary standards across jurisdictions, calling for greater international consistency in how corruption is addressed in arbitration. 

Fraud and corruption in ISDS 

Finally, Elliot Luke addressed the topic through the lens of investor-State dispute settlement (ISDS). The discussion was centred around States’ increasing use of allegations of fraud and corruption to challenge a tribunal’s jurisdiction under a treaty, particularly where some investment treaties require investments to be made in accordance with host State law, or, alternatively, the admissibility of the dispute.  

The example of World Duty Free v Kenya was discussed to illustrate that, where an applicable investment treaty does not expressly require an investment to be made in accordance with the host State’s law, tribunals may still draw on principles of international public policy to determine the effect of fraud and corruption in ISDS claims. Similarly, the case of Metal-Tech v Uzbekistan was cited to highlight that tribunals may also undertake an ex officio investigation as to whether an investment has been tainted by fraud or corruption, and may reach a finding of fact on these issues based on a ‘red flags’ analysis. 

To conclude, and while circling back to the earlier points raised by Mr Riches KC, the panel considered whether heightened scrutiny of issues of fraud and corruption is required when sovereign States are parties to the dispute. 

Session conclusion 

The session concluded with a Q&A, which centred around a discussion of the effects of the UN Convention on Bribery and Corruption in raising compliance awareness and standards globally, the indirect influence this has on international arbitrations, and the effect of allegations of fraud or corruption against arbitrators, counsel and experts, the conflicting local law duties and obligations owed by practitioners, and the need for greater clarity on ethical standards in international arbitration practice.  

Arbitration and the energy transition: Recent developments and future trends

Herbert Smith Freehills Kramer

Rapporteur: Jialin Ma

Speakers:

• Antony Crockett, Partner, Herbert Smith Freehills Kramer
• James Allsop, Partner, Herbert Smith Freehills Kramer
• Michael Lake, Partner, Herbert Smith Freehills Kramer
• Jean Hamilton-Smith, Senior Associate, Herbert Smith Freehills Kramer
• Caitlin Poysden, Senior Associate, Herbert Smith Freehills Kramer

Event Report:

A New Landscape for Investment Disputes in the Transition Era 

The world is currently navigating a profound structural shift in its energy system, driven by the imperative to decarbonize and mitigate climate change. This energy transition represents more than a technological or industrial overhaul; it is a fundamental reshaping of national policies, regulatory frameworks, and international commerce. Consequently, the mechanism of Investor-State Dispute Settlement (ISDS) is encountering novel pressures and complexities. 

Recent statistics illuminate a changing dynamic in investment arbitration. Cases related to fossil fuel projects continue to be a primary source of disputes, often triggered by government measures—such as regulatory tightening, permit cancellations, or contract terminations—implemented to meet emissions reduction targets. Crucially, however, the number of ISDS proceedings lodged against States in the renewable energy sector is rising rapidly. 

This trend signals a critical shift in the nature of disputes: the focus is moving from the “phasing out” of old energy sources to the “regulation and support” of new ones. These emerging cases frequently involve challenges to changes in subsidy regimes, policy instability, or domestic content requirements. The complexity of these disputes is intensified by their intersection with Environmental, Social, and Governance (ESG) compliance and the assertion of sovereign regulatory power. For international arbitration institutions like the Australian Centre for International Commercial Arbitration (ACICA), the capacity to adjudicate these multi-disciplinary and politically sensitive transition disputes is becoming paramount. 

Global Supply Chain Fragmentation and the Arbitration Challenge 

Amid increasing geopolitical tensions and a retreat from unfettered globalization, States are implementing interventions aimed at securing critical national industries. This increase in protective measures is directly fueling trade friction and investment disputes. The battery and critical minerals supply chain offers a prime illustration of this phenomenon. As the engine of the global energy transition, this industry’s value chain is both deeply globalized and inherently vulnerable. Its full lifecycle spans from the extraction of raw materials (such as lithium, nickel, cobalt, and graphite), through to the refining of chemicals, manufacturing of battery cells, product use (in EVs and storage systems), and finally, recycling. Regulatory divergence and emerging trade barriers along this chain are creating fertile ground for disputes. Major economies are introducing aggressive localization and sustainability requirements. For instance, the European Union’s New Batteries Regulation imposes stringent standards on the carbon footprint, mandatory recycled content, and traceability (Battery Passport) of batteries entering the market. 

While these measures are framed as advancing “sustainable development” and the “circular economy,” they can simultaneously operate as technical trade barriers to major manufacturing and exporting nations. Foreign investors suffering losses due to what they perceive as discriminatory or disproportionate regulatory implementation may initiate ISDS claims, thus pitching complex issues of public interest regulation against private treaty rights. This scenario demands that arbitral tribunals possess a nuanced understanding of international trade law, environmental regulations, and investment treaty provisions. 

Critical Minerals and Australia’s Strategic Position: Risks and Opportunities 

The colossal demand for critical minerals required for the energy transition has propelled resource-rich nations like Australia into a central strategic position within the global supply chain. Australia possesses significant deposits of minerals essential for battery production and is actively seeking to move beyond raw material mining into downstream processing and manufacturing of precursor materials. 

This structural ambition, however, carries distinct arbitration risks: 

1. Sovereign Policy Risk and Resource Nationalism: Under pressure from escalating international demand, resource-rich states may enact measures, such as hiking royalties, imposing export restrictions, or reviewing existing mining agreements, to secure greater national benefit. Such state actions pose a direct threat to the expected returns of foreign mining investors. 
2. ESG and Indigenous Title Disputes: The development of new projects and expansion of existing mines requires heightened adherence to environmental and social governance standards. This often involves complex processes concerning land use, Indigenous rights, and environmental permitting. Should foreign investors incur losses due to perceived abrupt or adverse changes in these regulations, they are likely to seek recourse through ISDS. 

Consequently, international arbitration needs to develop specialized expertise to handle these disputes. It must go beyond traditional commercial assessments to integrate principles of emerging international climate law, environmental jurisprudence, and Indigenous rights principles when scrutinising state conduct. 

Conclusion: Forging an Arbitration Framework Fit for the Future 

The energy transition is irreversibly transforming the global economic and legal environment. For the international arbitration community, the central challenge is clear: to ensure that the ISDS mechanism remains a stable and reliable tool for resolving investment disputes, while simultaneously demonstrating deference to and accommodating the legitimate exercise of sovereign regulatory authority taken to achieve critical climate and sustainability objectives. This requires enhanced specialist knowledge and a multi-disciplinary approach from tribunals. The future of international arbitration is inextricably linked to the successful, yet equitable, realisation of global sustainable development goals, demanding a platform that delivers both justice and certainty in this new era of investment risk. 

 

Diversity of Expertise in Arbitration: The Past, Present and Future 

Holding Redlich 

Professor Doug Jones AO 

Rapporteur: William Hettrick | Lawyer (Construction Disputes), Clayton Utz 

Event Report:

Introduction 

Professor Doug Jones AO called for a renewed focus on a long-neglected form of diversity in arbitration; diversity of expertise. His lecture, “Diversity of Expertise in Arbitration: The Past, Present and Future”* traced the profession’s evolution from its technically grounded origins to its current lawyer-dominated model, and posed a challenge to the arbitral community: to reclaim what has been lost by being more open to appointing non-lawyer arbitrators with relevant subject-matter expertise.  

The Past 

Professor Jones began by revisiting a time when arbitration in Australia and beyond was firmly grounded in industry knowledge.  Reflecting on his early career, he recalled prominent arbitrators who were not lawyers at all; engineers, architects and quantity surveyors, who brought deep technical understanding and practical judgment to disputes.  They were trusted to resolve complex matters efficiently and cost-effectively, not only by lawyers, but also by their professional peers. 

Historically, this was no anomaly.  From the merchant fairs of medieval Europe to the industrial disputes of the 18th and 19th centuries, arbitration was a mechanism of the marketplace; an avenue for those within trades to resolve disputes among themselves.  As Professor Jones observed, it was not until the industrial revolution that lawyers began to dominate arbitral practice.  In doing so, something essential was lost: the grounding of decision-making in genuine subject-matter expertise. 

The Present 

Today, despite arbitration’s reputation for flexibility and industry relevance, the field has drifted far from its multidisciplinary roots.  Professor Jones noted that clauses requiring an arbitrator with “ten years’ experience in construction” are now almost invariably satisfied by appointing a lawyer who practises or has practised in construction law for that period of time; not an engineer or builder who has lived experience of the issues in question. 

There are some notable exceptions. In maritime arbitrations, the London Maritime Arbitrators Association (LMAA) continues to count a large proportion of non-lawyers among its senior members.  The Grain and Feed Trade Association (GAFTA) likewise ensures that its tribunals include trade professionals, and even restricts legal representation unless both parties consent.  Sports arbitrations (under the Court of Arbitration for Sport or “CAS”, for example) also routinely retain and rely on the use of subject-matter experts. 

By contrast, commercial arbitration has become increasingly homogeneous. Professor Jones postulated three reasons why: 

1. Predictability: parties and counsel often perceive non-lawyer arbitrators as ill-equipped to handle procedural complexity or ensure due process; 
2. Finality: the limited avenues for appeal in arbitration make parties reluctant to “take a risk” on a non-lawyer; and 
3. Conservatism: the legal profession’s habitual preference for appointing “one of their own.” 

The result? A self-perpetuating cycle in which non-lawyers rarely receive appointments, and thus cannot build the experience that would otherwise give parties confidence to appoint them. 

The risks of this narrowing are not merely theoretical.  Professor Jones pointed to the Nigeria v P&ID case, in which the English High Court set aside a multi-billion-dollar award tainted by corruption.  A tribunal with deeper industry insight, he argued, might have recognised earlier that the underlying contract bore the hallmarks of a sham, illustrating how the absence of relevant expertise in a tribunal risks eroding the legitimacy of arbitration. 

The Future 

Professor Jones’ central message was forward-looking; the arbitration community should strive to restore the diversity of expertise that once underpinned good (or perhaps better) decision-making. Drawing on the reflections of Professor Janet Walker CM on “collective intelligence” during the 2025 Clayton Utz & University of Sydney International Arbitration Lecture, he highlighted how diversity within tribunals (including diversity of professional background) enhances deliberation and improves the quality and robustness of awards. 

Two examples from his own experience underscored this point.  In a hydroelectric dispute regarding turbine performance, involving arguments about whether there was more than acceptable vibration in the turbines, an engineer was on the tribunal and proved pivotal to the tribunal’s reasoning.  In an oil-concession accounting dispute involving the reconstruction of hundreds of entries in the accounting records of the concessionaire and the country involved over a 10yr period, a quantity surveyor’s numerical expertise on the tribunal was indispensable.  These cases demonstrate that tribunals with at least some relevant subject-matter expertise can achieve not only fairer but also more informed outcomes. 

What, then, can be done?  Professor Jones acknowledged that party autonomy, a cornerstone of arbitration, has contributed to the problem, since parties (or rather their lawyers) tend to choose arbitrators whom they know.  He suggested that arbitral institutions could play a critical role by taking a more active role in appointments, such as by following sports arbitration institutions where panels are selected for their suitability rather than familiarity. 

Ultimately, the presumption that only lawyers possess the skills necessary to arbitrate effectively is a professional conceit; one that diminishes both the efficiency and legitimacy of the arbitral process.  True diversity, he concluded, must extend beyond gender, geography and background to include diversity of expertise. 

If arbitration is to maintain its legitimacy as an independent and effective form of dispute resolution, it must rediscover the value that non-lawyer expertise once brought.  In Professor Jones’ own words: “solutions are available; may the debate flourish”.   

*Professor Doug Jones’ paper titled “Diversity of Expertise in Arbitration: The Past, Present and Future” can be accessed here. 

Three Arbitrations You’ve Never Heard of and Where the Next One Will Be

King & Spalding

Rapporteur: Benji Batten, ACICA

Speakers:

• The Hon. Wayne Martin AC KC (Chief Justice, Dubai International Financial Centre Courts and Independent Arbitrator)
• Tom Sprange KC (King & Spalding Partner, London)
• Ruth Byrne KC (King & Spalding Partner, London)
• Matt McGill (King & Spalding Partner, Washington D.C)
• Dan Feldman (King & Spalding Partner, Abu Dhabi/London)
• Wade Coriell (King & Spalding Partner, Singapore/Houston)
• Jennifer Chambers (King & Spalding Partner, Sydney)

Event Report:

On the eve of King & Spalding’s Sydney office opening, the firm hosted members of the Australian Arbitration Community at the picturesque Sculpture Terrace at the Museum of Contemporary Art for a panel discussion on Three Arbitrations You’ve Never Heard of and Where the Next One Will Be.

The panel discussed current trends in major international and commercial arbitration, drawing on several significant and complex multibillion dollar cases, while also highlighting the growing significance of the Middle East in global energy, renewables and project-related disputes as well as the region’s emerging opportunities.

Current Trends in major international and commercial arbitrations

Navigating mega disputes

Noting the sheer size of mega disputes, with billions of dollars on the line, which can feature lengthy legal submissions, and interlocutory disputes, the panel emphasised the importance of firm supervision from the arbitral tribunal alongside the following features of written submissions:

• The benefit of written submissions featuring paper linkages, where every factual proposition has a hyperlink to the evidence being relied upon.
• Ensuring written submissions cover all bases, including sufficiently comprehensive submissions on quantum, where relevant.
• Utilising an executive summary, and deploying tables, pictures, diagrams and illustrations where relevant, to assist in making the submissions easier to follow.
• The value in the arbitral tribunal providing directions about which issues and information they want to be prioritised, which assists counsel to prepare more targeted and helpful submissions.

Navigating arbitrator recusals and enforcing arbitral awards and foreign judgments

The Panel noted that arbitrator recusal applications are becoming more common,  and that while they are often based on procedural points, which very rarely give rise to a successful challenge, they are becoming deployed more regularly, perhaps with goals of delay and intimidation in mind.

An observation was made that in Australian courts, the test is a ‘double might’ test: ““Would a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions the judge is required to decide?” which has quite a low threshold, whereas in international arbitration under the Australian legislation (s 18A of the International Arbitration Act 1974 (Cth) ) , the test is whether there is a “real danger of bias”, meaning there is a higher barrier to overcome in arbitration, which should be welcomed, given the potential abuse of the recusal process by parties.

Members of the panel explained that they have seen recusal challenges used to set up a ground for annulment or set aside proceeding at a later stage to try and stay enforcement of the award, meaning they have become another tool in attempts by judgment debtors to delay enforcement.

Turning to broader enforcement challenges, the panel observed a trend for award debtors to try and extend proceedings for an extraordinary length of time to wear down the award claimant.  The panel also noted a recent trend of more novel assertions of state immunity as a basis to defend against the enforcement of arbitral awards where the state has expressly or otherwise agreed to arbitrate, but nevertheless proclaim themselves to be immune. These proceedings can see enforcement drawn out over several years within national courts and their appellate courts. While this can be frustrating for an award claimant, there is also the ability to gain interest on the award amount, when it is ultimately recovered.

While there are indeed a range of practical and legal challenges to enforcing awards, the panel also shared some examples of enforcement success stories, including being able to locate and secure parcels of State assets located across multiple jurisdictions, including through the use of third-party debt orders.

Looking to the future: the growing significance of the Middle East in global energy, renewables and project-related disputes and the region’s emerging opportunities.

Capital and opportunities in the Middle East

The panel explained how the Middle East, in particular economies like the UAE and Saudi Arabia is continuing to grow in GDP, through domestic investment, attracting foreign capital, and also through outbound investment by sovereign wealth funds and family offices. This has seen immense development in infrastructure, and also an economic diversification and reformation program seeking to change the social environment, including building entirely new cities powered by new forms of energy.

With this development happening at a breakneck pace, and the demand for materials, there is the potential for disputes, particularly in the construction sector (including supply chain disputes), in the real estate sector, and in the underlining of financial investments and instruments. This dispute potential is amplified by the influx of new entrants in the market who may treat this investment like they would in any other jurisdiction, and may not be as concerned with long-term relationships and consequences, when compared to those who have historically invested in the region and may have been reluctant to immediately file lawsuits as a result.

The Dubai International Financial Centre Courts

Against the backdrop of the continued increase in investment and economic growth of the region, the DIFC Court was introduced as a forum to resolve commercial disputes result from the developments in the region.

The DIFC Court is a specialist common law court with it’s own set of bespoke commercial laws and features an opt-in jurisdiction, which means parties do not need a connection with DIFC or Dubai. It features public hearings on YouTube, and gives the partes an appeal right to the DIFC Court of Appeal.

The judgments, once recognised by the onshore courts of Dubai, are immediately enforceable throughout the emirate of Dubai, and the six Gulf states, through the Gulf Cooperation Council without the ability for merits review, and the only ground for objection to enforcement is public policy. A similar arrangement exists with a broader number of states through the Riyadh Arab Agreement for Judicial Cooperation, increasing the enforceability reach of a DIFC Court judgment.

So where will the next major arbitrations be?

Turning back to the session title, the panel concluded with insights and predictions on where the next major commercial international arbitrations will emerge from.

Given the discussion on the rapid scale of development, capital flow, and GDP development in the Middle East, the panel noted the region could be the centre of future mega disputes and arbitrations, however they also noted that India and Indonesia also have rapidly growing economies and these too could be the source for future arbitrations.

Beyond geography, the panel also considered that arbitration enforcement proceedings and court proceedings that see an increased use and reliance of the court’s supervisory function over the arbitration process, are going to become more important than ever.

Arbitrator Roundtable – Future-Proofing Arbitration: The Arbitrator’s Role

ACICA

Rapporteur: Amy Cable (Counsel, ACICA)

Together with venue sponsor, DLA Piper, and lunch sponsor, FTI Consulting, ACICA hosted an invite-only Arbitrator Roundtable on procedural efficiencies and best practices in arbitration, focusing on the evolving role of the arbitrator.

The discussion was facilitated by leading international arbitration practitioners:

• Bernard Hanotiau (Hanotiau Tossens Goldman, Brussels)
• Hilary Heilbron KC (Brick Court Chambers, London)
• Professor Doug Jones AO (Sydney Arbitration Chambers and Atkin Chambers, London)
• Amanda Lees (King & Wood Mallesons, Singapore)
• Salim Moollan KC (Brick Court Chambers, Singapore)
• Michael Polkinghorne (White & Case LLP, Paris)
• Kim Rooney (Rede Chambers, Hong Kong)

The session was moderated by Judith Levine (Independent Arbitrator and ACICA President) and Diana Bowman (ACICA Secretary-General), with Gitanjali Bajaj (DLA Piper and ACICA Vice-President) and Dawna Wright (FTI Consulting) giving welcome and closing remarks, respectively.

The session delivered a comprehensive and practical examination of each stage of the arbitral process, from pre-appointment considerations and procedural timetables to the management of disclosure, evidence, and hearings. The discussion also explored the growing role of AI as a tool in the arbitrator’s toolkit, before turning to reflections on tribunal deliberations and drafting enforceable awards.

The discussion underscored ACICA’s pivotal role in both supporting and scrutinising arbitrators, at the appointment stage and throughout the proceedings, while ensuring that the ACICA Rules remain effective and fit for purpose.

Breaking bread: slicing through the ‘inherent tension’ between cross-border insolvency and arbitration in the Asia-Pacific  

Norton Rose Fulbright  

Rapporteur: Eibhlin Murrant, Norton Rose Fulbright  

Moderator: Ananya Mitra, Senior Associate, Norton Rose Fulbright

Speakers:

• The Honourable James Allsop AC, Independent Arbitrator   
• Scott Atkins, Partner and Global Head of Restructuring, Norton Rose Fulbright
• Kei-Jin Chew, Director, Ascendant Legal Singapore
• Emily Tillett, Vice President at Burford Capital, Hong Kong.   

Event report:

Daniel Allman, Partner, Norton Rose Fulbright, opened the panel with brief comments. Mr Allman noted the rapidly developing interrelationship between insolvency and arbitration in the Asia-Pacific region and the increasing number of international benches which have turned their minds to the issue. With an irretrievably global corporate landscape, and steadily high rates of corporate insolvency, it has never been so important to consider the connections and concerns between insolvency and arbitration.    

The panellists participated in a lively discussion, which touched on several substantive areas.  

Regional trends relating to cross-border insolvency   

The panel began with an overview of the recent trends of insolvency related disputes in the  

Asia-Pacific region. Ms Tillett observed that the continuing wave of insolvencies which surfaced in 2022 was projected to persist, meaning that 2026 is likely to mark five consecutive years of rising insolvencies. These increases were attributed variously to years of inflation, supply chain disruptions, reduced commercial lending, and the lingering effects of the Covid-19 pandemic. The panel touched on the regional complexities of cross-border insolvency, and the difficulties which arise where a company’s operations, assets, and creditors are geographically and jurisdictionally dispersed.   

Conventional understandings of insolvency and arbitration; and the evolving view of the bench  

The panel considered the theoretical disjunct between arbitration and insolvency. Insolvency frameworks are generally creatures of domestic legal systems which facilitate the pari passu distribution of assets between creditors. In contrast, arbitration clauses are premised on the autonomy and consent of contracting parties.  Moreover, different jurisdictions have different views as to whether particular insolvency disputes are capable of arbitration. Relevant factors include applicable domestic insolvency laws, the law of any place of enforcement, and considerations of international public policy. As Mr Allsop explained, in Australia there is no automatic stay on arbitration proceedings when a company enters administration or is compulsorily wound up, as may be the case in circumstances where insolvency proceedings had been commenced in a foreign court. Borrowing the terminology of the US courts, ‘core’ insolvency disputes stay within the remit of the court, whereas ‘non-core’ disputes can be resolved through arbitration.  

New approaches – Singapore   

The panel then considered how this issue has been dealt with internationally, noting in particular the exciting developments in Singapore. The panel unpacked the Singaporean decision of Sapura Fabrication Sdn Bhd v GAS [2025] SGCA 13, which was a helpful illustration of the concerns Courts must traverse when a faced with a disputed debt or a cross-claim that is subject to a putative arbitration agreement.   

Mr Chew also provided an overview of the SIAC RIA Protocol which facilitates the resolution of insolvency related disputes by arbitration. The panel commented on its broad scope and other procedural nuances including interaction with related insolvency proceedings before courts and considerations of public policy relevant to insolvency, in arbitration and settlement contexts. The panel said that specialised arbitration rules from institutions such as SIAC could be helpful in tailoring arbitration to meet the specific requirements of an insolvency process, which requires speed and efficiency.  

Looking ahead – UNCITRAL and the Working Group  

Mr Atkins provided an overview of the history of the UNCITRAL Model Law on Cross- 

Border Insolvency, along with its key concepts for the benefit of the panel. He noted that the Model Law, opened for signature in 1997, did not provide a clear means for the resolution of insolvency related disputes by way of arbitration. This issue is presently under consideration by UNCITRAL’s Working Group V. Since 2019, the WGV has been working on the adoption of a choice of law instrument regulating the law applicable to the international effects of insolvency proceedings, which would provide a mechanism to facilitate appropriate choice of law.  It seeks to include a rule on the law governing the impact of insolvency in arbitration.   

Questions from the audience and conclusions  

The session concluded with audience questions, including about how Courts would be able to discern between valid applications for stay pending arbitral proceedings and delay tactics.  

Noting this was a valid concern with the availability of stay applications in such settings, the panel concluded that the Courts would be able to consider arbitral clauses on a case-by-case basis.   

Ultimately, the panel found that, notwithstanding its traditional incongruity, there was significant promise in the use of arbitration for insolvency-related disputes. The panel remarked that arbitration:  

• provides means for creditors to select a governing, restructuring-friendly law for their claims;  
• fosters increased certainty and fairness; 
• can encourage hold-out creditors to participate constructively;  
• allows awards to be recognised and enforced; and  
• strengthens and facilitates genuine pre-insolvency rescue-oriented negotiation process in legal systems with weaker rescue culture.  

The engaging discussion ended with closing remarks from Daniel Allman, followed by a breakfast spread and post-panel discussions.

Delay and Other Disasters: Dispute Resolution in the Energy and Infrastructure Sectors across the Asia Pacific 

Atkin Chambers, Peter & Kim, BRG, Lighthouse Club Australia  

Rapporteur: Xuandi Peng

Moderator: Deborah Tomkinson, Peter & Kim

Speakers:

• David Streatfeild-James KC, Atkin Chambers
• Jim Morrison, Peter & Kim
• Sharon McGahey, BRG
• Susanna Taylor, Litigation Capital Management

Event report:

This panel discussion, “Delay and Other Disasters: Dispute Resolution in the Energy and Infrastructure Sectors across the Asia Pacific,” brought together leading voices from Atkin Chambers, Peter & Kim, BRG, and Lighthouse Club Australia. Moderated by Deborah Tomkinson (Peter & Kim), the session featured David Streatfeild-James KC (Atkin Chambers), Jim Morrison (Peter & Kim), Sharon McGahey (BRG), and Susanna Taylor (Litigation Capital Management). 

Moderator Deborah Tomkinson opened the event with a thoughtful introduction, highlighting that the global energy transition cannot succeed without parallel developments in technology and law. 

She pointed out that while much attention is given to the scientific and engineering side of the energy transition, its legal and human dimensions are equally complex and often underestimated. 

The Human Element Behind Delays 

The discussion opened with the observation that energy transition requires not only technological innovation but also a rethinking of how we manage its human and legal dimensions. David Streatfeild-James KC illustrated this vividly through three case studies, from Afghanistan to the Asian subcontinent to the UK, showing how “people problems” such as land access, cultural sensitivity, and local protests can halt billion-dollar projects. 

These examples highlighted a crucial truth: disputes and delays are not just the result of engineering or legal oversights, but of human and social realities often underestimated in planning stages. 

Jim Morrison echoed this, citing road transport and power projects in Southeast Asia and Iraq where protests, security risks, and unclear contractual provisions about responsibility for safety led to catastrophic project standstills. His point was clear—contracts must explicitly allocate risk for access and security rather than relying on assumptions. 

Delay Analysis: Lessons from the Field 

Sharon McGahey offered a forensic perspective from her work as a delay analyst. In her experience, baseline schedules often fail to account for potential disruptions such as land access or security problems. She stressed that “if the contract doesn’t anticipate these issues, the entire critical path can collapse.” From hospitals adopting cutting-edge medical technology to wind farms transporting massive turbines through narrow roads, Sharon emphasized that innovation itself introduces new forms of delay—and that failure to plan for them can be ruinously expensive. 

Innovation and Risk in the Green Energy Transition 

The conversation then turned to the challenges of renewable energy development. David Streatfeild-James KC discussed data showing how new energy technologies frequently experience cost overruns, particularly in nuclear and offshore wind projects. While modular solar technology tends to mitigate risk, offshore turbines and undersea cables remain technically unpredictable due to dynamic marine conditions. 

Jim Morrison shared a striking example from Central Asia—a large-scale smelting project using untested electronic technology. In the rush to capitalise on critical minerals, contractors skipped key risk assessments and training, resulting in a disastrous explosion. “The risk appetite in these green energy projects,” he noted, “is driven by the race for innovation and profit.” 

Funding the Future: The Role of Third-Party Finance 

From a funder’s perspective, Susanna Taylor pointed out a growing trend: disputes arising from renewable projects that fail to meet performance promises, government delays in licensing, or the intersection between state policy and private investment rights. 

She noted the rise of claims involving license revocations, expropriations, and resource nationalism, particularly as governments assert control over critical minerals. Third-party funding, she argued, plays an increasingly vital role in ensuring access to justice for investors caught in these transitions. 

Rethinking Contracts for a Changing World 

Finally, the panel reflected on whether traditional construction contracts, often rooted in common law models, remain fit for purpose in an era of rapid innovation and cross-border collaboration. 

As David observed, many current principles date back to industrial-age precedents, yet we are now dealing with technologies and risks that those doctrines could never have imagined. There is a growing need to modernise both legal frameworks and dispute resolution mechanisms to keep pace with the accelerating complexity of infrastructure development. 

Takeaway 

The discussion revealed a shared understanding: disputes in the energy and infrastructure sectors are no longer confined to engineering or legal failures—they are deeply human, technological, and political. 

As Asia-Pacific nations accelerate toward decarbonisation, lawyers, engineers, and policymakers must collaborate more closely than ever to anticipate, not just react to, the next wave of disruption. 

Mass Claims in Motion: Class Actions in International Arbitration

Clifford Chance

Rapporteur: Louisa Lemm, Clifford Chance

Moderator: Kate Apostolova, Partner, Clifford Chance

Speakers:

• Brad Woodhouse, Partner, Head of Class Actions, Clifford Chance
• Erika Williams, Independent Arbitrator, Williams Arbitration
• Dr Callista Harris, Barrister, 7 Wentworth Chambers
• Robert Kirkness, Barrister, Thorndon Chambers
• Zoe Lim, Senior Associate, Mori Hamada

Event report:

The emerging field of mass claims in arbitration continues to evolve and faces a number of procedural challenges. This is unlike class actions in litigation, where many such issues are now largely settled. These challenges were the focus of discussion at Mass Claims in Motion: Class Actions in International Arbitration, a session hosted by global law firm Clifford Chance during the Australian Arbitration Week on 15 October 2025. The session demonstrated that the ability to effectively manage such challenges in arbitration will determine its viability as a forum for mass claims.

During this session, the panel considered recent high-profile cases, including Argentina’s experience with mass claims under investment treaties, bondholders’ actions against Switzerland, and a mass claim brought against Cyprus under bilateral investment treaties with Greece and Luxembourg. The panel focused on the challenges and the future of class actions in arbitration, particularly in investment arbitration as more information on these cases is publicly available.

View the full event report on the Kluwer Arbitration Blog.

Beyond the Award: Mastering Enforcement Strategies Across Oceania 

Institute for Transnational Arbitration (Young ITA) | Co-sponsored by Arbitrators’ and Mediators’ Institute of New Zealand Inc and Corrs Chambers Westgarth  

Rapporteur: Tiana De Silva, Corrs Chambers Westgarth 

Moderator: Daniel Meltz AM, barrister at 12 Wentworth Selborne Chambers

Speakers:

• Nastasja Suhadolnik, Partner at Corrs Chambers Westgarth (Australia) 
• Anna Kirk, Barrister at Bankside Chambers and Vice President of AMINZ (New Zealand) 
• Ana Tuiketei, Independent Arbitrator (Fiji) 
• Luke Wangi, Associate Lawyer at Leahy Lewin Lowing Sullivan Lawyers (PNG) 

Event report:

The focus for the panel centred around enforcement of arbitral awards across the Pacific and Oceania, in particular where parties brought substantive proceedings in one jurisdiction but sought to enforce or stay enforcement of an award in another jurisdiction.  

Recent developments in the Oceanic region on recognition and enforcement of foreign arbitral awards against sovereign states 

Nastasja highlighted an emerging trend in Australia which has seen the jurisdiction being used by large commercial parties’ to ‘test’ cases on the enforceability of an arbitral award against a sovereign state. For example, in the High Court of Australia’s decision of Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. [2023] HCA 11 and the Full Court of the Federal Court of Australia in Republic of India v CCDM Holdings, LLC [2025] FCAFC 2. The question for determination was whether and to what extent does the foreign states’ entry into the ICSID Convention or New York Convention constituted a waiver of immunity from the jurisdiction of Australian courts for the purposes of recognition and enforcement proceedings. The current position in Australia is that by becoming a party to the ICSID Convention, a state will have waived its entitlement to foreign state immunity under Australian law. However, an exemption arises where the state party adopted the New York Convention, subject to a carve out for commercial disputes.  

In New Zealand, courts have taken a similar approach to Australia and the United Kingdom, despite New Zealand’s sovereign immunity law being embedded in the common law rather than a product of statute or a sovereign immunity act.  Anna Kirk explained that in New Zealand, commercial assets are treated differently to sovereign assets which creates additional enforcement challenges for parties. Additionally, the enforcement of foreign arbitral awards in New Zealand is rare.  

Anna views New Zealand’s approach to enforcement of domestic and international awards to be positive noting the importance of the topic, if you can’t enforce an award then this conflicts with one of the most important features of international arbitration. Anna considers that parties to an arbitration should be aware of the significant challenges surrounding enforcement against sovereign states when making strategic decisions regarding dispute resolution against state actors.  

In 2024, Papua New Guinea passed its dual international and domestic arbitration regime marking a significant legislative development which was aimed at updating and strengthening the previous outdated regime. Luke Wangi noted that a key development under PNG’s new arbitration regime includes the power of PNG’s National Court to refer parties to arbitration by its own motion, or with the consent of the parties. Under such motion, parties are subjected to arbitration governed by the New York Convention. The Panel discussed the technical implications of such referral wherein a referral by a Court without the consent of the parties will necessarily conflict with the principle that parties to an arbitration should be there voluntarily. This raises questions on whether an award made by a tribunal on referral from a Court is valid to be enforced under the New York Convention.  

Transnational issue estoppel, comity and forum shopping 

Nastasja reflected upon her own experiences in the region and trends globally which have seen parties utilise jurisdictions considered to be more ‘friendly’ on enforcement as a tactical advantage in bringing disputes subject to an arbitration clause. Challenges arise when parties, for example, bring substantive proceedings in one jurisdiction but seek to enforce in another. In such cases, parties must consider whether the system they are in provides any tactical advantages or safeguards against the misuse of arbitration proceedings to avoid enforcement. Principles of transnational issue estoppel and the ‘primacy’ principle were considered in Republic of India v. Deutsche Telekom AG in which it was determined that a strict application of transnational issue estoppel will prioritise procedural efficiency over substantive justice to ensure finality of awards. This is even in cases where such approach can curtail the genuine resolution of serious claims of illegality in an arbitration dispute, and the general principals under the New York Convention in favour final and binding awards to be enforced except in limited circumstances. 

Anna highlighted that the New Zealand jurisdiction has recently seen instances of more extreme anti-arbitration injunctions to prevent enforcement of awards. Similarly, Ana Tuiketei spoke to the increasing prevalence of multi-jurisdictional arbitration proceedings and the use of foreign state immunity to avoid enforcement of arbitral awards as emerging issues in Fiji and the Pacific region.   

Climate change and environmental policies and their impact on the future of trade and foreign investment  

Ana considers there to be a clear connection between climate change and environment regulation and arbitration, particularly in the context of international commercial arbitration between investors and states. In Fiji, the right to a clean and healthy environment is protected under the Fijian Constitution. Fiji has also declared itself to be in a ‘climate emergency’ and a necessary implication of such determinations may mean that a Fijian High Court is empowered to set aside decisions on the basis of climate related issues.  

Ana noted that given the recent publications of advisory opinions by international courts on the issues of climate change, it is unequivocal that environmental concerns will impact future trade, investment and commerce between states, and that this may extend to considerations of cross-border harm. Ana also highlighted that it is a human right to have access to a clean, healthy and sustainable environment. Another recent petition was brought in the African Court of Human and Peoples’ Rights being asked to define how African states may or must regulate third parties, such as multinational corporations, in relation to climate change and human rights. 

Luke Wangi, noted a further key development under Papua New Guinea’s new arbitration regime includes an explicit ground for refusal of the recognition or enforcement of an award where an award would be ‘repugnant to general principles of humanity’. The inclusion is a significant development which is not found within the Model Law.  

Arbitration Victoria; Low cost arbitration in action: A case study and moot based on the Arbitration Victoria rules in action  

Mills Oakley  

Rapporteur: William Hettrick | Lawyer (Construction Disputes), Clayton Utz 

Speakers:

• Mary Walker OAM, Barrister, 9 Wentworth Chambers
• Bronwyn Lincoln, Partner, Thomson Geer
• Monique Carroll, Partner, Mills Oakley
• Adam Rollnik, Barrister, List G Barristers

Event report:

Introduction 

The perception that arbitration is an expensive and drawn-out process continues to persist.  This panel, hosted by Mills Oakley, sought to challenge this view by presenting an engaging discussion and case study on how streamlined arbitration processes can deliver efficient and affordable outcomes. 

The panel comprised Mary Walker OAM (Barrister, 9 Wentworth Chambers), Bronwyn Lincoln (Partner, Thomson Geer), Monique Carroll (Partner, Mills Oakley) and Adam Rollnik (Barrister, List G Barristers), who together examined the practicalities and early experience of Arbitration Victoria, a low-cost arbitration scheme tailored to the Australian market. 

Origins of low-value arbitration disputes 

The discussion opened with a reflection on the historical context of arbitration in Australia. In New South Wales, parties and practitioners could once rely on a “conjoined” framework provided by the District Court Act, through the Arbitration (Civil Actions) Act 1983 and the Commercial Arbitration Act 1984 (NSW), which provided a useful mechanism for resolving lower-value disputes efficiently.  However, following various tort law reforms which reduced court congestion, the scheme was largely abandoned. 

The panel observed that, over time, arbitration in Australia became synonymous with complex and costly international disputes. This has fed into what was described as the “one-size-fits-all fallacy”; the misconception that all arbitrations must follow the same procedural and cost-intensive model. The development of Arbitration Victoria represents an effort to correct this by designing a system proportionate to the scale and nature of the dispute. 

With technology and AI reshaping dispute resolution globally, the panellists suggested that bespoke models such as the one proposed by Arbitration Victoria signal a new wave of innovation. 

The Arbitration Victoria model 

Arbitration Victoria was developed with inspiration from Singapore’s established low-cost arbitration framework, adapting it for Australian practice.  The model is underpinned by capped fees, tight timeframes, and accessible procedures.  Initially envisioned to be suited for claims under A$250,000, it is now contemplated that the scheme is suitable for claims up to A$10 million. 

Key highlights include: 

• Tight time limits: Arbitrations are to be completed within 120 days from commencement to award, subject to extension by party agreement; and 

• Capped fees: Arbitrators’ hourly rates are modest and scaled to the amount in dispute (from A$220/hour for smaller matters up to A$400/hour for higher-value disputes), with overall costs capped at 10% of the amount in dispute. 

These parameters, among others, are designed to make arbitration a viable option for parties who might otherwise view litigation as the only realistic forum for resolving low-value disputes.  The initiative has developed with strong judicial support, notably from the County Court of Victoria, where parties in proceedings may refer their dispute to arbitration under Arbitration Victoria rules.  

Enhancing access to justice and building skillsets 

Beyond affordability, the panel emphasised the capacity for Arbitration Victoria to contribute to access to justice and legal skills development.  A vibrant domestic arbitration culture has been crucial to the growth of international arbitration hubs such as London and Singapore.  Australia’s strong court system, while an asset, has meant fewer opportunities for practitioners to develop arbitration experience.  Low-cost schemes like this can help build that capacity. 

The panel also discussed the broader issue of why arbitration for lower-value commercial disputes remains underutilised in Australia.  Factors include a lack of public familiarity, education, and the perception that court access is “free.” Many parties do not turn their minds to dispute resolution clauses when contracting, underscoring the need for better front-end awareness. 

The importance (and innovation) of publishing awards 

A distinctive feature of the Arbitration Victoria Rules is the publication of arbitral awards, unless a party successfully applies for confidentiality. This is an uncommon but deliberate step, intended to promote education and transparency. 

As the panel noted, publication helps demystify arbitration for lawyers accustomed to open court judgments and supports the development of “soft law” principles, such as those found in the IBA Rules on the Taking of Evidence. It also fosters diversity in appointments by allowing parties to understand different arbitrators’ reasoning styles, countering the perception of a “closed club” of repeat appointees. 

Early experience 

The panel reflected candidly on challenges encountered in early arbitrations under the scheme.  In one example, despite a strict 120-day timeframe, the parties themselves agreed to delay proceedings by several months to exchange evidence. Later, an application for adjournment shortly before the hearing tested the tribunal’s ability to balance procedural fairness with the paramount objective of a fast, final, and affordable process.  Ultimately, the hearing proceeded.  How these hurdles were overcome can be seen in the published award on the Arbitration Victoria website here. 

What lies ahead for Arbitration Victoria? 

Looking ahead, Arbitration Victoria is expected to evolve into Arbitration Australia, offering bespoke rule sets across jurisdictions.  The panel’s vision for the next five years includes wider adoption of arbitration clauses in commercial contracts, greater critical thinking about dispute resolution options at the front end, and more assertive case management by tribunals. 

Key Takeaways 

The panel made clear that low-cost arbitration offers a tailored form of justice to parties with smaller value claims which would otherwise be unfeasible if run in court.  By combining capped costs, firm timelines and transparent outcomes, Arbitration Victoria offers a practical pathway for resolving smaller commercial disputes in a way that is both proportionate and principled.   

The Amazing Race – International Perspectives on Renewable Energy Disputes 

Ashurst 

Rapporteur: Jordon He, Ashurst 

Moderator: Luke Carbon, Partner, Ashurst, Sydney 

Panellists: 

• Adam Robb KC, Barrister, 39 Essex Chambers, London 
• Brooke Miechel, General Counsel, Akaysha Energy, Sydney 
• Craig Holland, Head of Legal (APAC & Middle East), Wärtsilä, Sydney 
• Georgia Quick, Partner, Ashurst, Sydney 
• Sylvia Tee, Partner, Ashurst, Beijing and Hong Kong 
• Michael Weatherley, Partner, Ashurst, Singapore 

Event report:

This session on day 3 of Australian Arbitration Week involved an exciting discussion by a panel consisting of practitioners and in-house counsel based in diverse jurisdictions spanning multiple continents. 

The discussion centred on: 

1. investment trends and commercial opportunities in renewable energy; 
2. recurring project challenges; 
3. dispute profiles and preferred resolution mechanisms; and 
4. forward-looking predictions for Australia’s pathway to net zero. 

Investment Landscape & Commercial Opportunities 

In Australia, there has been AUD 97 billion invested in renewable energy projects since 2022.  Brooke noted that Akaysha alone has deployed over AUD 3 billion in capital to large-scale battery storage projects in New South Wales and Queensland, with late-stage pipelines exceeding 7 GW in South Australia and Victoria, and other projects as well as expansion plans in Japan, the United States and Germany. 

Globally, annual investment in renewable energy projects is projected to hit USD 2.2 trillion in 2025 and almost double to USD 4 trillion by 2030. 

Technology & Market Hot-Spots 

The panel observed several notable hot-spots in the technology sector and market: 

• Battery Storage: Rapid product cycles (Craig stated that Wärtsilä is delivering new products every 12 months) and improving storage density/efficiency; seen as critical to renewables integration. 

• Offshore & Onshore Wind (Asia): Strong regulatory support in several jurisdictions; opportunities for infrastructure funds as traditional oil-and-gas majors exit. 

• Chinese Supply Chain: Sylvia observed that China commissioned as much solar PV in 2023 as the world did in 2022, and that there is a huge demand for critical minerals (copper, nickel) and for O&M contractors. 

• Emerging Sectors: Mega-scale batteries, advanced modular gas turbines, and energy-transition minerals mining. 

Key Project Challenges 

There are a number of key project challenges in the renewable energy space, including planning, land access and stakeholder engagement.  Brooke noted that landowners and neighbours are often sceptical of new technologies.  There is also often regulatory lag, where technology evolves faster than approval regimes, and inexperienced regulators grapple with grid-stability standards and registration processes. 

There are also a number of delivery-phase risks.  Examples include supply chain volatility, component shortages and insolvencies (e.g., battery OEM collapse).  Georgia stated that there may also be IP disputes and grid-connection delays caused by changing technical requirements.  There are also often complex contracting structures (split or multi-contract models), multiplying interface complexity and risk.  Brooke noted, however, that the split contract models are an achievement of the business-minded parties in this evolving space where parties must innovate to overcome issues. 

Dispute Trends & Resolution Mechanisms 

The panel provided their observations on the typical dispute types. 

Arbitration remains dominant for cross-border projects.  It is prized for confidentiality, enforceability of awards and the ability to choose procedural law.  Further, tiered clauses (for example, negotiation, then expert determination, then arbitration) are increasingly common, with their effectiveness depending on the clarity of conditions precedent and realistic timeframes. 

Practical Guidance for Risk Management 

Parties should allocate risk expressly and coherently at contract formation, and avoid generic “rush-to-market” templates. 

Parties should also engage specialist counsel and independent experts early in a dispute, as expert scarcity in emerging technologies can skew outcomes if appointments are left late. 

It is also important to consider insolvency protections.  Steps which parties may take include entering direct contracts with OEMs, step-in rights and robust security packages. 

While drafting the dispute resolution clause, parties should consider designing dispute-resolution pathways with a clear end-point, acknowledging that overly elaborate multi-tier regimes may create satellite litigation. 

Core Takeaways for Australian Stakeholders 

• The transition to net zero represents both an unprecedented investment opportunity and a fertile ground for disputes; early, strategic legal input is essential. 

• Clarity in contracting, rigorous risk allocation and culturally attuned dispute-resolution design are the most effective tools for minimising conflict. 

• Supply-chain fragility and regulatory change remain the greatest external threats; project teams must build contractual flexibility and robust contingency planning. 

• As Australia scales renewable infrastructure, lessons from mature Asian and European markets—particularly around grid integration and offshore wind—will be invaluable. 

• Ultimately, well-managed disputes can be an enabler rather than a deterrent, helping projects stay on-track and allowing capital to continue flowing into the sector. 

Consent or coercion? Multi-party, multi-contract arbitration

Corrs Chambers Westgarth 

Rapporteur: Tom Lukic, Corrs Chambers Westgarth 

Speakers: 

• Professor Richard Garnett, University of Melbourne and Consultant, Corrs Chambers Westgarth 
• Lucas Bastin KC, Barrister, Essex Court Chambers and Banco Chambers 
• Cara North, Special Counsel, Corrs Chambers Westgarth  
• Geoffrey Zhu, Barrister, Banco Chambers 

Event report: 

Corrs Chambers Westgarth and Banco Chambers were thrilled to host a discussion on the issues that arise during multi-contract and multi-party arbitrations.  The panel comprised Lucas Bastin KC and Geoffrey Zhu from Banco Chambers, Cara North from Corrs Chambers Westgarth in Melbourne, and Professor Richard Garnett from the University of Melbourne.  Professor Garnett is also a Consultant at Corrs Chambers Westgarth.  

The panel considered the issue of multi-party, multi-contract arbitrations with particular reference to the High Court’s decisions in Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24 (Tesseract), and Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13 (Rinehart).  The panel agreed that both Tesseract and Rinehart will continue to reverberate through the arbitration landscape for some time, and that practitioners must pay close attention to the arbitral seat, governing law and, if applicable, institutional rules when assessing their impact on a particular dispute at hand. 

The panel agreed with Professor Garnett’s observation that the impact of Tesseract will likely be mediated by the fact that parties can largely choose to contract out of proportionate liability legislation.  Where parties cannot do so, in jurisdictions like Queensland, parties can choose the law of another state, which does not prohibit contracting out, such as Victoria, as the governing law of the contract, and nominate Melbourne as the seat of any arbitration.  Professor Garnett also noted that the risk of inconsistent decisions was endemic in arbitration more generally, irrespective of the decision in Tesseract, because arbitration is contractual and therefore parties cannot be compelled to participate in the one dispute resolution process.  The panel agreed that the risk of inconsistent decisions would not necessarily have been ameliorated had the decision in Tesseract gone in the opposite direction.  Rather, the defendant would have born the risk of chasing concurrent wrongdoers in other forums, and the associated risk of inconsistent decisions.  

Ms North noted the increase in clients seeking advice on how to deal with Tesseract and issues of proportionate liability at the contract stage.  The panel agreed with Ms North’s observations that this consideration requires particular attention and care when selecting an appropriate governing law for the contract, and seat for any arbitration.  Ms North highlighted that, for some contracting parties, the inability to have all parties in one room is an advantage of arbitration, and that the commercial value of this consideration should be weighed against the associated risk of inconsistent decisions.  

Mr Bastin KC considered that the decision in Tesseract would not heavily impact the attractiveness of arbitration.  However, he cautioned that it only takes one difficult case to cut through with in-house counsel, and raise doubts as to the appropriateness of arbitration for disputes in the future.   

The panel then turned to consider the High Court’s decision in Rinehart.  Mr Zhu noted that Rinehart has two distinct applications – one is where a third party is seeking a stay of proceedings in favour of arbitration, and the second is where a non-party plaintiff is being forced into an arbitration they did not consent to and, perhaps, pursuant to an arbitration agreement of which they were previously unaware.  The panel agreed with Ms North’s observation that Rinehart came out of a specific set of facts, and has been more broadly applied by lower courts and tribunals in a more expansive manner.  Mr Bastin KC also observed that the full effect of Rinehart would take some time to observe, and that, like other apex court decisions regarding expansion such as Dow Chemicals or Dallah, this process could take place over decades.  Finally, Mr Bastin KC noted that, while the UK’s Contracts (Rights of Third Parties) Act 1999 has some advantages to Australian solutions because it is a statutory remedy, there are nevertheless a large number of unresolved questions.  Those include whether, for example, the moving party to a claim utilising the Act can bring both contractual and tortious causes of action.  

The panel agreed that institutional rules have developed significantly to accommodate the need for joinder and coordination applications.  Mr Bastin KC considered that the SIAC rules set a benchmark for best practice because, amongst other reasons, they provide an effective mechanism for the consolidation of tribunals.   

Finally, the panel agreed with Ms North’s observation that, in multi-party and multi-contract disputes, the safest path to protect an eventual arbitral award is for all parties to join one dispute agreement, and to agree upon a seat and governing rules.  Mr Bastin KC and Professor Garnett observed that, while practitioners will always be able to deploy creative solutions in practice including, for example, by tactically drafting coordination applications and scheduling sequential determinations of issues to create issue estoppels, it is safer for parties to plan ahead and ensure that they are protected against the risk of multiple related disputes by the terms of the dispute resolution provisions in the contract.  

Elements of Efficient Expert Evidence Panel Discussion  

Piper Alderman  

Rapporteur: Feras Hamdan, Piper Alderman 

Moderator: Cris Cureton (Partner, Piper Alderman)

Speakers:

• James Searby, Director, Sapere Forensic
• Lucy Martinez, Independent Arbitrator & Counsel, Martinez Arbitration
• Tim Breakspear SC, Senior Counsel, Banco Chambers

Event report: 

Introduction 

Piper Alderman was pleased to host a panel discussion as part of the ACICA’s Australian Arbitration Week 2025, focusing on the theme of Elements of Efficient Expert Evidence. The event brought together leading arbitration practitioners and experts to explore practical strategies for managing expert evidence in arbitration proceedings. 

For most commercial disputes, expert evidence is critical. One of the benefits of arbitration is that it is not constrained by court rules, in effect the arbitral tribunal and parties have a blank sheet of paper at the start of the arbitration to craft a process that maximises expert efficiency.  

Crafting the best expert evidence procedure in arbitration (always subject to the proviso that it’s horses for courses regarding nature of disputes) appears to be challenging however. 

Procedural options 

The panel discussed potential procedures for expert evidence including: early notification of identity and subject-matter of experts (particularly important to identify potential conflict issues with tribunal members, but with potential forensic complications, e.g., if a party wishes to change experts) and ways to avoid the expert evidence passing like ships in the night (e.g., agreement on a common document set, agreement on methodology, agreement on a joint testing regime). 

The panel discussed:

• their experience with experts being involved in early case management conferences (which is increasingly being used in Australian courts), however noted that depending on the field of expertise
• the inherent conservativism of many arbitral tribunals to adopt novel procedures, particularly over the objection of parties, because of the risk for arbitral awards to be set aside if a tribunal imposes a procedure over the objection of a party and the primacy of party autonomy in arbitration
• the different approaches of arbitrators, and why parties may opt for certain arbitrators in certain disputes given their approach to expert evidence

Tribunal experts 

The panel discussed:

• whether having (or the credible threat of having) tribunal experts would improve the quality of expert evidence
• the different processes in civil law and common law jurisdictions, and how that can inform with what process parties are comfortable
• the additional cost to the parties of having a tribunal expert (though this could be reduced if the tribunal expert was an individual not supported by a team) but with the trade-off of the likelihood of a potentially quicker (and maybe better) tribunal decision
• the increasing cynicism of tribunals about the independence of clean experts (the perception that at least some experts are effectively advocates for their clients’ positions), and explored the possibility of in-house subject-matter experts being used instead

Experts assisting the tribunal 

The panel discussed:

• when best to involve experts before the tribunal
• whether experts can be involved too early, and whether the experts should have an opportunity to form either preliminary or considered views
• when the best time for experts to conclave and produce joint reports, and if such processes were efficiently undertaken in the absence of (and without reporting to) the parties’ counsel. The panel noted the different practices and expectation in Australian litigation and in international arbitration, and encouraged express agreement

The panel also shared their experience with the benefits of independent facilitators in assisting experts to reach agreement and focus on matters in issue in the arbitration and the subject of their expert reports. 

Reduction of costs 

The panel shared their experiences with bifurcation as a way to reduce the need for experts, particularly quantum experts, to opine on a sometimes massive array of potential alternatives depending on the tribunal’s findings about liability or causation. 

The panel noted that arbitral tribunals, particularly tribunals seated in Australia, needed to be careful about bifurcation in light of the High Court of Australia’s decision in CBI Constructors v Chevron Australia. However, the panel noted that despite that risk, there were considerable benefits, which parties often saw by agreeing to bifurcation or staging. 

Q&A 

The panel answered questions from the engaged audience, including about the panel members observations about the increasing use of AI by experts and tribunals, and the practicalities of experts presenting at case management conferences. 

Crypto Disputes in Arbitration: Navigating the New Frontier of Digital Asset Conflict

Level Twenty-Seven Chambers & Thomson Geer Lawyers

Rapporteur: Erin Page

Moderator: Rob Anderson KC, Barrister, Level 27 Chambers

Speakers:

• Tim Elliss, Barrister, Level 27 Chambers
• Lucinda Brabazon, Barrister, Level 27 Chambers
• Liam Hennessy, Partner, Thomson Geer
• Bronwyn Lincoln, Partner, Thomson Geer
• Scott Castledine, Partner, Thomson Geer

Event report: 

This event was on the hot topic of the future: cryptocurrency disputes. Each speaker provided an overview of a particular area of this complex and developing field of law:

1. Technology Development
2. Jurisdictional Issues
3. Freezing Orders
4. Quantum
5. Enforcement

Technology Development

Liam Hennessy provided an incredibly in depth overview of technological developments that have shaped crypto action over the past decade including blockchain, cryptocurrencies, and stablecoins.

Two emerging technologies spotlighted were tokenised real world assets which enable shares, bonds, real estate and other financial products to be transmuted into tokens and traded on digital exchanges; and smart contracts which can allow parties to automate enforcement by programming funds to transfer upon the occurrence of specific contractual triggers or breaches.

The opportunities presented by this new technological era centre on the removal of middlemen, lower transaction fees, access to deeper liquidity markets, significantly faster transaction speeds and greater market optionality through the transmutability of products.

However, Liam likewise emphasised the risks accompanying these developments at various stages of the disputes process, including:

• the absence of a clear regulatory framework;
• the rise of forum arbitrage;
• increasingly complex arbitration clauses;
• uncertainty around identifying the responsible party;
• complexity arising from the transmutation of products; and
• challenges in enforcement.

Jurisdictional Issues

Tim Elliss expertly outlined the potential challenges companies may face when seeking to grant a tribunal jurisdiction, given that the crypto space is primarily consumer-focused and thus heavily regulated in Australia.

He set out two key questions when looking to enforce jurisdiction:

Is there a valid contract with terms & conditions correctly adopted by the parties.

This is simple but essential. For example, when signing up to a crypto exchange, the terms & conditions at the beginning will usually suffice if sufficient attention is brought to them.

Is the relevant arbitration clause binding?

This issue presents additional challenges in Australia under the unfair contract terms regime which may result in a voided clause and accordingly a lack of jurisdiction.

Tim examined the case of Dialogue Consulting Pty Ltd v Instagram, Inc [2020] FCA 1846 to illustrate this issue. The unfair contract term argument arose in relation to a dispute resolution clause that provided for an American-seated arbitration, included a consumer due process protocol, authorised virtual hearings, and required Instagram to cover institutional arbitration costs. Justice Beach held that, because of the clause’s clarity and these consumer safeguards, it did not create an imbalance of rights or cause detriment to the consumer. Additionally, Instagram’s business interests in managing cross-jurisdictional claims rendered the clause reasonably necessary. Had the clause lacked these procedural safeguards, the outcome may have been different, particularly given the rising costs of arbitral institutions.

While this issue is theoretically interesting, Tim emphasised that when deciding whether to initiate or contest a jurisdictional challenge, practitioners must weigh whether doing so is ultimately cost-effective for their client.

Freezing Orders

Scott Castledine provided some essential considerations for parties involved in disputes where cryptocurrency is a key asset class. Courts have interpreted crypto assets as property giving rise to proprietary remedies with a significantly higher risk of quick asset dissipation. To counteract this, parties must look to interim relief.

Scott emphasised several key considerations when seeking Freezing Orders including:

• jurisdiction and enforceability (whether the respondent holds assets locally and the court’s stance on arbitration);
• third-party involvement (putting digital asset platforms on notice);
• the court’s power to issue freezing orders against unidentified parties (Ebsworth Lawyers v Persons Unknown [2024] NSWSC 71);
• practical challenges in freezing assets held in cold or hot wallets;
• disclosure obligations of the parties or platforms; and
• the currency or form in which the asset is held.

Quantum

Given the volatility of crypto assets, quantum remains a highly unsettled area. Lucinda Brabazon set out a clear overview of the differing treatment of cryptocurrency in the courts thus far.

Firstly, specific performance may be available as a remedy where losses cannot be readily quantified in damages, as established in Southgate v Graham [2024] EWHC 1692.

She also explored the contentious question of the date crypto assets should be valued at when determining specific performance or damages. Courts have adopted differing approaches, including:

• the date of breach, except where this may not accurately reflect the claimant’s loss (Fantom Foundation Ltd v Multichain Foundation Ltd and another [2024] SGHC 173);
• the date of judgment, as suggested obiter in Southgate (noting that the quantum ruling is still pending); and
• the highest market price within a reasonable time after discovery of the breach (Diamond Fortress Technologies Inc v EverID Inc 274 A.3d 287).

Given this uncertainty, practitioners must turn their minds to quantum from the start of proceedings and engage experts early to present a compelling damages case.

Enforcement

Finally, with the event drawing to a close, Bronwyn Lincoln provided a brief overview of enforcement issues in the area emphasising difficulties in tracing, issues surrounding the global nature of blockchain transactions and choosing the correct jurisdiction for enforcement, how to enforce against decentralised digital assets and whether Courts may decline enforcement on the grounds of public policy.

Revising the ACICA Rules 2021: Advance Screening for 2026 – Come and have your say!  

Hosted by ACICA and White & Case LLP 

Rapporteur: Iris Surong Li

As part of Australian Arbitration Week 2025, ACICA and White & Case LLP co-hosted an engaging and forward-looking panel discussion titled “Revising the ACICA Rules 2021: Advance Screening for 2026 – Come and have your say!” The event brought together arbitration practitioners, counsel, and academics to contribute to the ongoing review process for the forthcoming ACICA Arbitration Rules 2026.  

Speakers: 

• James Morrison, Chair of the ACICA Rules Committee and Partner at Peter & Kim 
• Lee Carroll, Partner at White & Case 
• Lucy Martinez, Independent Arbitrator 
• Emily Hay, Managing Counsel at ArbBoutique 
• Tom Webb, Barrister at Quayside Chambers 
• Diana Kuitkowski, Legal Director at Sydney Metro 
• Robert Tang, Partner at Clifford Chance 
• Daisy Mallett, Independent Arbitrator 
• Nick Gallus, Principal at LK Law 

Welcome Address and Context 

The session was opened by James Morrison, Chair of the ACICA Rules Committee and Partner at Peter & Kim. Mr Morrison provided an overview of the structured process undertaken by the Committee since November 2024 to prepare the 2026 Rules. This process has involved identifying key issues (“issue buckets”), forming sub-committees, producing preliminary reports, and conducting workshops to refine ideas drawn from practical arbitral experience. 

The next stage of the process, public consultation, was commenced by this event, allowing practitioners to discuss and provide input on key reform areas before reports are presented to the ACICA Board for approval. 

The major topics considered during the event included: 

• Expedited and Emergency Arbitrator Procedures 
• Artificial Intelligence 
• Procedural Innovations to Encourage Settlement 
• Opt-in Appeals Mechanism 
• Sustainability 

Members of the Rules Committee each presented some of the ideas and proposals that were being considered. This was then opened to feedback from the audience at the event, which the Rules Committee will consider as part of the consultation process.  

Expedited and Emergency Arbitrator Procedures 

Speakers: Lucy Martinez (Independent Arbitrator) and Lee Carroll (White & Case) 

Ms Martinez and Ms Carroll compared ACICA’s expedited and emergency arbitrator procedures with those of HKIAC, SIAC, and ICC, noting the objective to harmonise ACICA’s framework with international best practice. 

Key proposals included allowing applications for emergency relief prior to the filing of a Notice of Arbitration, aligning with other major institutions. If not filed within five business days, such applications would be deemed withdrawn. The speakers also discussed clarifying the default seat for expedited and emergency arbitration. 

The current five-day deadline for rendering an emergency award may be extended to ten business days, balancing speed with practical feasibility. Suggestions also included clarifying admissibility and challenge procedures, defining what constitutes a “business day” in international contexts, and reviewing innovations such as SIAC’s restriction on ex parte communications. 

For expedited proceedings, the proposal to raise the automatic threshold from AUD 5 million to AUD 10 million was discussed. Participants noted the importance of discretion to ensure that expedited cases remain practical and efficient. The current four-month timeframe for issuing an expedited award may be extended to ensure quality drafting. 

Artificial Intelligence and Arbitration 

Speakers: Tom Webb (Quayside Chambers) and Emily Hay (ArbBoutique) 

The panel acknowledged the absence of strict Australian guidance on AI use in arbitral proceedings, while courts at both state and federal levels continue to consult on potential frameworks. Participants highlighted that submissions, witness statements, and expert reports may soon require disclosure if AI tools were used in drafting—a reflection of developments in judicial practice. 

Internationally, institutions such as the American Arbitration Association (AAA) and thought leaders from Silicon Valley are developing guidelines emphasising responsible use, confidentiality, and authenticity. 

Speakers discussed whether the ACICA Rules should codify AI use. The consensus leaned towards incorporating AI governance within Practice Notes rather than the Rules themselves, maintaining technological neutrality and party autonomy while enabling regular updates. Future ACICA guidelines may outline ground rules for AI use at the outset of proceedings, especially where parties from diverse legal cultures have differing views on technology. 

Procedural Innovations to Encourage Settlement 

Speaker: Diana Kuitkowski (Sydney Metro) and Darren Fitzgerald (Fitzgerald Lawyers) 

Kuitkowski proposed embedding “settlement windows” within procedural timetables, which are defined periods for parties to pause proceedings and explore settlement without procedural activity. Such innovations aim to promote efficiency and well-preparedness, giving parties space to reflect and potentially resolve disputes amicably before formal hearings.  

Opt-in Appeals Mechanism 

Speaker: Robert Tang (Clifford Chance) 

Tang introduced a proposed optional schedule permitting parties to opt into an appeal mechanism under the ACICA Rules. Survey data indicated that 24% of in-house counsel respondents viewed an appeal process as making arbitration more attractive. 

The proposal would allow appeals on questions of law, or law and fact, based on the original record (without new evidence). While promoting party choice, participants cautioned that such mechanisms may undermine finality, prolong proceedings, and invite strategic challenges, potentially reducing arbitration’s comparative advantage over court litigation. 

Sustainability in Arbitration 

Speakers: Daisy Mallett (Independent Arbitrator) and Nick Gallus (LK Law) 

The final discussion turned to sustainability, focusing on how arbitral institutions can reduce environmental impact through procedural design. The ACICA Sustainability Protocol included mandating electronic filings, encouraging virtual hearings, and recognising parties’ sustainability efforts in cost determinations. 

Four key recommendations were advanced: 

1. Incorporate environmental sustainability within ACICA’s objectives. 
2. Integrate sustainability considerations into procedural conduct.
3. Facilitate early discussions with parties on sustainability protocols.
4. Consider parties’ environmental efforts in cost apportionment.

Such sustainability could be understood broadly as both environmental responsibility and procedural efficiency, capturing the ethos of “fast, efficient, cheap… and sustainable.” 

The Annual Great Debate: Which is best – litigation versus arbitration?  

Corrs Chambers Westgarth

Rapporteurs: Eden Jardine & Jarrah Lindhout, Corrs Chambers Westgarth

Event report: 

The perennial question: to litigate or arbitrate; which is superior?  This year, Corrs Chambers Westgarth’s Annual Great Debate pitted some of Australia’s leading arbitration and litigation practitioners against one other to dispute disputes (in typical lawyer fashion) in a particularly entertaining Thursday evening event.  

The Great Debate was hosted by Hugh Stirling (Corrs Chambers Westgarth). 

Espousing the virtues of Team Arbitration were:

• Penny Martin, Three Crowns
• Jo Feldman, Corrs Chambers Westgarth
• Domenico Cucinotta, Corrs Chambers Westgarth

In opposition was Team Litigation, consisting of:

• Timothy Bunker, Corrs Chambers Westgarth
• Monty Taylor, Tenth Floor Chambers)
• Callista Harris, 7 Wentworth Selborne

Team Arbitration  

Ms Martin opened the case for Team Arbitration, setting out five reasons why arbitration is superior to litigation.  These reasons included supreme procedural and substantive flexibility, reducing the pressure on the courts and public resources, and that arbitration is a comfortable home for disputes arising in fast developing sectors such as AI and cryptocurrencies.  Likening arbitration to love, Ms Martin argued that arbitration never seeks to possess, and that while it draws on domestic law, arbitration does not impose upon it.  

Amid these sensible reasons, Ms Martin characterised the aspirations of Team Litigation as seeking only to “make litigation great again,” while aligning arbitration with the philosophy of Rick Astley: it is never gonna run around and desert you.  

Ms Feldman bolstered Team Arbitration’s efforts, emphasising the sexiness of arbitration – a life of champagne, glamorous overseas hearing destinations and networking events – compared to the dreariness of courtrooms, the drudgery of precedents, and the repugnancy of legal wigs.  In one of the many memorable lines of the evening, Ms Feldman concluded that arbitration is the “the sports car for the pale, stale, male”.  She explained that in arbitration, you pick a hearing date, arbitrator(s), a seat and arbitral rules.  You then know where you stand, which is in your Barbie beach house that you built.  

Finally, Mr Cucinotta took aim at his opposing side, drawing on his time as a guide at the International Court of Justice (ICJ) to note that even the ICJ, the supposed shining beacon for litigation, evidences why arbitration is best.  His reason?  The painting at the end of the Great Hall of Justice in the ICJ is entitled “Peace through arbitration” (not litigation).   

Mr Cucinotta then turned to ChatGPT to support his side’s case.  He quoted ChatGPT’s response when asked which dispute resolution alternative users prefer: “People tend to like arbitration more than litigation, but that does not necessarily mean they love it.  It is the lesser of two evils, rather than a joyful experience”.  Noting that it is apparent that ChatGPT has not been to the “joyful experience” of ACICA’s Australian Arbitration Week, Mr Cucinotta closed the case for Team Arbitration.  

Team Litigation 

Opening for Team Litigation, Mr Bunker put it simply: “anything you can do, we (litigators) can do better”.  Mr Bunker firstly argued that the right of appeal in litigation afforded much-desired second chances to practitioners, who, statistically speaking, lose about half the time.  Further, public courts provide for transparency and accountability, a virtue not found in arbitration.  These processes protect against the new technological risks of generative AI and falsified evidence.  In support of this argument, Mr Bunker aptly quoted Albert Einstein, who said, famously: “Arbitration, schmarbitration”.  

Veteran Great-Debater, Ms Harris, furthered Team Litigation’s case, shifting the focus to interstate arbitrations and litigations.  In the world of international disputes, Ms Harris posed that litigation is clearly superior because counsel is able to freely deliver submissions without “pesky questions” from a presiding judge, compared to arbitrators who constantly feel the need to interrupt during submissions.  Ms Harris furthered that the shenanigans of interstate arbitration – which is well-known and rife – is only scantly documented due to confidentiality requirements.  In summary, Ms Harris concluded: “Lawlessness, chaos, and World War One; that is what interstate arbitration has given us.”  

Mr Taylor wrapped up the debate by responding to Team Arbitration’s arguments and reinforcing those of Team Litigation.  While Ms Martin posited that AI disputes were within the comfortable domain of arbitration, Mr Taylor suggested that this is simply because arbitration compensated for its lacking intellectual rigour with an affinity for acronyms and maxims in foreign languages.  Furthermore, pointing to his recent train travel to a Parramatta local court, Mr Taylor asserted that Ms Feldman’s characterisation of litigation as unsexy is simply wrong. 

This highly entertaining battle of the minds concluded by Mr Stirling inviting the audience to determine a winner by show of hands.  Mr Stirling declared a well-deserved tie, to much applause from the audience.  

The internationalization of legal finance – Lessons Australia can learn from recent developments in third party funding across the globe 

The University of Sydney; Lindsay Francis & Mangan 

Rapporteur: Xuandi Peng

 Moderators:

• Professor Chester Brown SC, The University of Sydney Law School
• Matt Lee, Lindsay Francis & Mangan

 Speakers:

• The Hon James Allsop AC, Sydney Arbitration Chambers/Atkin Chambers
• Dr Can Eken, Durham University
• Emma Colantonio, Litigation Len-ding Services/AALF
• Emily Tillett, Burford Capital

Event report: 

A Panel of Global Perspectives 

The discussion brought together leading voices across the judiciary, academia, and the legal finance industry. The session explored how funding models are reshaping access to justice and international arbitration competitiveness. 

Setting the Scene: Financing and Australia’s Market Leadership 

Opening the discussion, Matt Lee emphasised that sustaining Australia’s leadership in arbitration and commercial dispute resolution requires innovation, not only in procedure but in the financing of legal claims. Legal finance, he noted, can play a decisive role in ensuring that “Australian courts and arbitral institutions remain market leaders in the region.” 

The Early Skeptic Turned Observer 

The Hon James Allsop reflected on the evolution of litigation funding in Australia, recalling the judiciary’s initial skepticism toward its utility. Over time, he observed, third-party funding became “a rational and competent” component of the justice system. He also noted that Australia has been at the forefront globally. 

Regional Comparisons: Insights from Hong Kong and Singapore 

Emily Tillett highlighted that while Hong Kong and Singapore share many features with Australia, their trajectories differ significantly. Neither jurisdiction traditionally allowed class actions, so legal finance grew through insolvency and arbitration instead. Singapore, a first mover in Asia, introduced specific legislation in 2017 to enable funding for arbitration and later allowed conditional fee arrangements for law firms, a reform Hong Kong soon followed. 

Ms Tillett observed that these frameworks have matured into comprehensive legal finance ecosystems, combining third-party funding, law firm portfolio finance, and innovative risk-sharing mechanisms. 

Australia’s Commercial Funding Landscape 

Emma Colantonio discussed the current trends shaping Australia’s third-party funding market, noting that the range of funded claims has broadened considerably in response to evolving legislation and regulatory developments. She explained that, beginning next year, many businesses will face new Anti-Money Laundering and Counter-Terrorism Financing (AML/CTF) compliance requirements, with industries such as accounting and legal services, previously outside the regime—now being captured, potentially giving rise to fresh compliance-related disputes.  

Ms Colantonio also highlighted emerging risks in the artificial intelligence space, observing growing scrutiny of how AI companies use data and whether such use may infringe copyright. Environmental, Social, and Governance (ESG) issues remain a continuing focus, and so-called “greenwashing” litigation is expected to persist. She noted that insolvency-related claims continue to represent a significant share of the funding market, particularly in sectors such as construction, retail, and hospitality, where economic pressures have increased case volumes.  

As competition among funders intensifies, she said, claimants and law firms are benefiting from better pricing and more flexible funding structures. Colantonio added that Australian funders and law firms are closely watching international trends, from ESG to AI, and are adapting these developments rapidly within the domestic market, helping the local industry become increasingly sophisticated and diverse. 

Why Australia Attracts Enforcement 

Professor Chester Brown SC examined why Australia has become a popular venue for the enforcement of arbitral awards and foreign judgments. He attributed this to a high-quality and independent judiciary, transparent and efficient procedure under the International Arbitration Act, and the speed and predictability of proceedings in the Federal Court. Brown illustrated this with examples where complex foreign award enforcement actions were resolved within months, contrasting sharply with longer timelines in other jurisdictions, and emphasised that these strengths make Australia an attractive and reliable forum for investors and sovereign entities alike. 

Balancing Benefits and Criticisms 

Dr Can Eken offered an academic perspective on the benefits and criticisms of third-party funding. He observed that while funding can improve access to justice and support meritorious claims, it also attracts criticism relating to fairness, control, and the potential influence on proceedings. Referring to the Nigeria v Process and Industrial Developments case as an example often discussed in debates about legal finance, Eken noted that such cases illustrate the complexity of third-party funding in international disputes. He concluded that third-party funding should operate in a way that serves justice rather than undermining it. 

Looking Forward: Transparency, Innovation, and Competitiveness 

The panel agreed that Australia’s challenge is not adoption but evolution. 

As other jurisdictions refine hybrid funding and fee models, Australia must continue to adapt to ensure it remains competitive in both arbitration and commercial litigation markets. 

In closing, the discussion highlighted a shared view: the question is no longer whether legal finance has a place in Australia’s legal system, but how it can continue to evolve in ways that uphold accessibility, integrity, and competitiveness. 

 

 

 

AAW Wellbeing Programme: Session Two

ACICA x ACICA45 Walk & Run for Wellbeing

The second event of the Australian Arbitration Week Wellbeing Programme saw participants join ACICA and ACICA45 for an energising Walk & Run for Wellbeing.

The run was led by Jeremy Chenoweth (Ashurst, ACICA Professional Advisory Council) and Reid Hadaway (Gilbert + Tobin, ACICA45 SteerCo), while the walk was led by Judith Levine (ACICA President) and Diana Bowman (ACICA Secretary-General).

The event provided a relaxed and refreshing way to connect with colleagues while enjoying Sydney’s beautiful outdoors. A perfect start to the day!

Thank you to everyone who joined us, and to Ashurst for their generous support!

The gathering storm – Investor State Arbitration in the APAC energy transition and lessons learned from other regions 

HFW, and ICSID 

Rapporteur: Sean Yalcinkaya 

Speakers:

• Sean Marriott, HFW
• Jo Delaney, HFW
• Jonathan Chevry, ICSID
• Professor Dough Jones AO, Independent Arbitrator

Event report: 

The discussion covered three topics:

1. providing firstly an overview of investor-state disputes (ISD) in the Asia Pacific region (APAC)
2. the prevalence of arbitration through ISCID for energy and related disputes was assessed
3. whether alternative dispute resolution methods are preferred in the region. 

Jonathan Chevry began the discussion providing a contextual overview of the prevalence of ICSID arbitrations in the APAC region. Thus far, there have been 69 ICSID cases in APAC, amounting to only 7% of the ICSID workload. Further, disputes arising from contracts in APAC are more often than in other regions of the world. Although ICSID is known for being an investor-friendly forum for dispute resolution, 64% of cases in APAC are won by state parties; in comparison, only 51% of disputes globally are won by state parties. 

Professor Jones then provided an overview of the function of ICSID in ISA, highlighting that ICSID disputes provide the benefit of neutrality in remaining outside of national jurisdiction before enforcement. He continued that the Permanent Court of Arbitration is often the forum for such investor disputes where a state or state-owned party is involved. Alternatively, parties may opt for an ad hoc arbitration under UNCITRAL rules. 

Moving the conversation towards ISDS in energy disputes in APAC, Doug continued that out of 76 energy-related disputes, only 3 concerned the transition to renewable energy. Cases that did arise out of energy transition disputes were largely related to states’ changing energy investment policy for financial reasons, leading to a breach of investor rights, which had occurred with Spain. 

Nevertheless, the amount of investor arbitration proceedings in APAC remains relatively low. Doug Jones noted that one reason for this may be that significant numbers of APAC companies, such as those from China or India, are based outside of the region, around the globe. Therefore, differences in inbound and outbound disputes must be considered 

It was also highlighted that the nature of relevant investor treaties is significantly changing as articles on dispute resolution become increasingly complex and comprehensive. Modern dispute resolution articles now regularly consider provisions such as submission timelines and transparency. 

Another explanation for the relatively fewer ISD cases involving APAC may be that parties prefer mediation and conciliation mechanisms. Considering the business culture in APAC which values the preservation of relationships, alternative dispute resolution may be viewed as a more appropriate method in the region. Examples can be seen in investment treaties between Australia and Indonesia, as well as between the European Union and Singapore, which mandate mediation before arbitration, and provide that mediation may occur at any time. Doug Jones advocated for the use of such consensual dispute resolution mechanisms through appealing to the UNCLOS dispute between Australia and East Timor, where the complex matter could be resolved with mutually beneficial solutions upon being referred to conciliation. Sean Marriott emphasised that even in instances where mediation or conciliation are unable to provide a resolution, they will often bring the parties far closer to it, narrowing the scope of the dispute. 

Arbitration in a world retreating from the global

Clifford Chance and the University of Sydney

Rapporteur: Jasmin L’Green, Clifford Chance  

Speakers:

• Professor Chester Brown SC, Professor of International Law and International Arbitration – USYD Barrister – 7 Wentworth Selborne
• Professor Luke Nottage, Professor of Comparative and Transnational Business Law – USYD Professor of Anglo-American Law – The University of Tokyo (from April 2026)
• Dr Nobumichi Teramura, Associate Professor of Law Keio University Law School (Tokyo)
• Dr Callista Harris, Barrister – 7 Wentworth Selborne
• Inma Conde, The Office of International Law PhD Candidate – USYD
• Daniel Forster, Counsel – Clifford Chance PhD Candidate – USYD

Event report: 

Introduction

As the world witnesses a resurgence of protectionism and states increasingly retreat from global cooperation, the future of international arbitration is under the microscope. During this panel discussion, experts from academia, private practice and government considered arbitration’s continued relevance as a trusted mechanism for resolving cross-border disputes in this new era of disruption.

The Sulu v Malaysia Case

The panel began by examining the impact of the high-profile Sulu v Malaysia case on the legitimacy and perception of arbitration. The case concerns heirs of the Sultanate of Sulu seeking a $15 billion award against Malaysia, based on a colonial-era lease of Sabah. The arbitration was highly controversial, involving a questionable relocation of arbitral seat (Spain to France), and extraordinary fees rendered by the sole arbitrator – Gonzalo Stampa – in excess of US$2 million. Mr Stampa’s role in the arbitration ultimately earnt him a criminal conviction in Spain. His resulting award has been the subject of combative efforts to stall enforcement across multiple jurisdictions (and Malaysia successfully resisted enforcement in multiple jurisdictions, including France, the Netherlands and Luxembourg. The panel discussed how such disputes may reinforce criticism that arbitration can be manipulated by lawyers, funders and arbitrators. Whether this risks undermining the legitimacy of arbitration is an open question since, ultimately, various courts have exercised their supervisory jurisdiction to resist enforcement of the Award, thereby utilising the available New York Convention safeguards to ensure the integrity of the system.

Protectionism and investment treaty arbitration

The panel then turned to the rise of protectionist measures, such as tariffs and other trade barriers, and their implications for investor-state dispute settlement (ISDS). It was noted that bringing ISDS claims against such protectionist trade measures involves overcoming several hurdles, including issues relating to the territoriality of the measures, as well as the objective public policy reasons for implementing them. While it was noted that such investment claims may be possible, there are real risks of failure particularly in light of the obvious right to regulate defences available to States. Accordingly, while certainly an available option, there are real questions regarding the effectiveness of ISDS to combat many of the trade measures implemented as part of the current retreat from globalisation.

Forum disruption: public policy and mandatory rules

Another major topic was the ‘weaponisation’ of public policy and mandatory rules to override arbitration agreements. The panel explored how certain statutes (such as the Carriage of Goods by Sea Act and Insurance Contracts Act) contain mandatory forum provisions that can override arbitration but also noted that courts generally uphold arbitration agreements unless there are compelling public policy reasons. Arbitration was described as increasingly trusted to navigate complex public policy issues, with courts showing greater willingness to enforce arbitration agreements even in the face of statutory exceptions. The lack of mandatory forum provisions in some consumer protection laws was highlighted as an area where arbitration remains robust, despite attempts to override choice of court agreements.

UNCITRAL Model Law: fragmentation vs. uniformity

Finally, the panel discussed the interpretation and application of the 1985 United Nations Commission on International Trade Law (UNICTRAL) Model Law (as amended in 2006), aimed at providing a harmonised modern framework for international commercial arbitration. Although the Model Law has been adopted in over 90 countries, its interpretation and application is often inconsistent. The panel compared Australia’s internationalist approaches – where courts consider broadly foreign case law and aim for harmony and uniformity in interpretation, with other jurisdictions such as Spain and the United States, who favour highly domestic interpretations of the international text. The need for closer adherence to the Model Law’s text, adoption of interpretative provisions like Article 2A(1) (requiring global uniformity in application) and more sophisticated research tools and caselaw databases to promote consistency was emphasised.

Conclusion

In a world retreating from the global, international arbitration faces significant tests. The panel’s discussions revealed both the vulnerabilities and strengths of arbitration and its enduring relevance in a brave new world. While cases like Sulu v Malaysia highlight risks of manipulation and legitimacy challenges – arbitration’s flexibility, internationalist legal frameworks and evolving practices offer hope for its continued relevance – even as states turn inward.

Key takeaways

• High-profile cases like Sulu v Malaysia expose arbitration’s vulnerability to manipulation, risking its legitimacy and global acceptance.
• Protectionist measures and treaty gaps create major obstacles for investors seeking to challenge state actions through arbitration.
• Despite statutory challenges, arbitration remains resilient, but inconsistent application of international frameworks challenges global uniformity

From conflict to collaboration – resolving disputes on major projects across Asia-Pacific

Pinsent Masons

Rapporteur: Iris Surong Li

Panelists:

• Andrew White KC, Atkin Chambers
• Sadie Andrew, Partner, Pinsent Masons
• David Streatfeild-James KC, Atkin Chambers
• Victor Lau, Senior Legal Counsel, Acciona Construction Australia

On 16 October 2025, Pinsent Masons hosted an engaging panel discussion titled “From Conflict to Collaboration – Resolving Disputes on Major Projects Across the Asia-Pacific” at its newly opened Sydney office at 33 Alfred Street, a heritage-listed landmark that stood as Sydney’s first skyscraper. The event brought together leading voices from the construction and arbitration community to explore how dispute resolution practices across the region are evolving towards collaboration and efficiency.

Opening Remarks

The morning commenced with a warm welcome from Sadie Andrew, Partner at Pinsent Masons, followed by a formal opening from Her Excellency the Honourable Margaret Beazley AC KC, Governor of New South Wales. Reflecting on the fusion of innovation and tradition embodied by the new office space, the Governor highlighted Sydney’s transformation into a hub of technology-driven industries and underscored the continuing importance of strong legal institutions in supporting that progress.

Panel Overview

Moderated by Andrew White KC, the panel featured David Streatfeild-James KC and Victor Lau alongside Sadie Andrew, offering perspectives spanning legal, technical, and practical dimensions of major project delivery and dispute management.

Shifting the Focus: Prevention Over Cure

Sadie Andrew noted that while formal disputes are declining, challenges remain as parties adjust to resolving issues in real time rather than deferring them until project completion. She observed that Pinsent Masons increasingly becomes involved at the early stages of projects to help mitigate risks, particularly on complex public infrastructure works such as metro systems, airports, and tunnels, where government clients often benefit from proactive commercial advice.

She also drew attention to Australia’s comparatively tight regulatory environment, where extensive statutory frameworks can trigger delays and early-stage disputes. New legislative requirements, such as notice provisions in Victoria, are reshaping the character of construction disputes, alongside external pressures including geopolitical uncertainty and price volatility.

Collaboration and Contract Innovation

Victor Lau offered a practitioner’s view from the front line of project delivery, highlighting the growing use of collaborative contract models, such as alliance, integrated team, and NEC forms, across Sydney’s infrastructure landscape. He stressed the importance of robust reporting structures and accurate contemporaneous records, including photographs and site logs, to provide clarity when disputes do arise. Such documentation, he remarked, can become decisive evidence in later arbitration or mediation.

David Streatfeild-James KC reflected on lessons from the UK, where NEC-style contracts have improved transparency but also revealed risks of delay and cost overruns, as seen in large-scale public works. In his view, contractual mechanisms that encourage early engagement and clear valuation processes remain key to maintaining project momentum under time pressure.

Choosing the Right Forum

The panel examined the continuing interplay between litigation and arbitration in resolving high-value disputes.

Sadie Andrew observed that while Australian courts in NSW and Victoria are highly efficient and staffed with expert judges, arbitration remains attractive for international contractors seeking confidentiality and procedural flexibility. However, she cautioned that arbitration is not always cheaper and that tribunals must innovate to justify their comparative advantages.

David Streatfeild-James KC expanded on the theme of finality, questioning whether arbitration’s perceived conclusiveness always translates into client satisfaction, especially where enforcement challenges arise.

Victor Lau added that cultural considerations often shape parties’ preferences: some clients are more comfortable with the structure of court processes, while others prioritise preserving long-term business relationships through private, less adversarial mechanisms.

Trust and the Role of Mediation

Across the discussion, trust emerged as a recurring motif.

David Streatfeild-James KC emphasised that “principled negotiation” underpins successful alternative dispute resolution. Mediation, he suggested, enables parties to reach principled, cost-effective solutions guided by experienced facilitators while retaining control over the outcome.

Looking Ahead

The session concluded with reflections on time efficiency: while major arbitrations (AUD 30 million – 100 million) may still take one to two years to resolve, half the time typically required in court, the emphasis on proactive collaboration and effective contract management offers even greater potential to minimise disputes altogether.

As Australia gears up for the 2032 Brisbane Olympics and an era of infrastructure expansion, the message was clear: collaboration, documentation, and early engagement are transforming dispute resolution from a reactive process into a cornerstone of project success.

10 Things I Hate About You: The Arbitration Edition

ICC Australia

Rapporteur: Melanie Mohr, Hall & Wilcox

Speakers:

• Andrew Battisson, Linklaters
• Dr Mariel Dimsey, Independent Arbitrator
• Diana Kuitkowski, Sydney Metro
• Daisy Mallett, Independent Arbitrator
• Jennifer Younan, A&O Shearman

Event report: 

Daisy Mallett, arbitrator of the year and moderator of this discussion, was happy to bring the conversation on ‘things to hate about arbitration’ from a more intimate forum to a broader audience. She explained that by sharing insights and experiences from their own cases, arbitration professionals would be able to identify effective practices worth trying as well as those that do not work well.

The Appointment of Arbitrators

After introducing the panel, Daisy asked the speakers for their thoughts and experiences regarding the appointment of arbitrators.

The panellists began by sharing their views on disclosure and the scope of disclosure practices in arbitration. They concluded that, considering the efforts involved in disclosure and the number of arbitrator challenges, disclosure requirements in arbitration might be too excessive. Some practitioners were even reported to be reluctant to accept appointments as arbitrators due to unpleasant experiences with challenges in the past. From the clients’ perspective, the panel emphasised the importance of selecting the right arbitrator and recommended that parties familiarise themselves with the arbitrator’s strengths before selecting.

Consolidation, joinder and emergency arbitration

Introducing the next broader topic of consolidation, joinder and emergency arbitration, a lively discussion on emergency arbitration ensued and stayed on this topic. The panel shared similar reservations and doubts regarding emergency arbitration. While emergency arbitration is very popular, it was observed that it is not always fit for purpose due to the difficulty of dealing with voluminous disputes in a mere couple of days. The panel pointed out that emergency arbitration can create an uneven playing field, especially for the respondent. They referred to the possible predicament of the respondent due to the lack of preparation time in emergency arbitration, whereas the claimant may have had months to prepare, as well as access to good lawyers who could argue a state of emergency. In response to a question from the audience, the panel also discussed the selection process for emergency arbitrators by arbitral institutions.

Case management conferences, timetables and procedural orders

Turning to the organisation of the arbitral proceedings, the panel discussed several issues that could improve their conduct. Firstly, the panel considered the role of the arbitrator at the initial CMC, sharing positive experiences of arbitrators taking charge and offering suggestions.

The speakers then discussed the idea of including settlement windows in procedural orders. Given tight timetables, expressly allocating time for settlement discussions could encourage parties to engage in such discussions without losing face. In this context, the panel noted that, except for the ACICA and DIS rules, arbitration rules do not explicitly require the arbitrator to raise the possibility of settlement. Most rules, if they mention it at all, merely encourage tribunals to propose settlement discussions to the parties.

Overall, the panel considered the PO1 to be a tool for setting the tone for the entire arbitration process, as well as managing parties’ expectations regarding witness evidence.

The speakers shared perspectives surrounding the scheduling of a hearing date. The panel explored committing to a date right from the start of the proceedings, as well as taking things step by step without setting a date.

Submissions, document production and evidence

Moving on to the next topic, Daisy began by referring to the Swiss White Paper on Document Production, which provides guidance on the relevance and materiality of evidence.

The panel then discussed the role of the burden of proof in the context of document production, sharing experiences of the various approaches adopted by arbitrators in civil and common law jurisdictions. Against this background, an arbitrator’s view on the burden of proof, influenced by their legal background, could potentially affect the parties’ selection of an arbitrator.

Turning to the subject of submissions, the panel considered how submissions could be used to tell a story, rather than following the traditional court-based approach still used in Australian arbitration. In this context, the importance of considering the intended audience of the submission was emphasised, as well as the need to draft it accordingly.

Lastly, when discussing evidence, the panellists considered the roles of expert and factual witnesses in arbitration. While the use of expert witnesses has gained significance, there has been a backlash regarding the use of factual witnesses.

The lively discussion offered valuable insights into current practices in international arbitration, quickly becoming interactive as numerous members of the audience posed questions or shared their own experiences. The discussion was immensely informative and provided a quick deep dive into some of the most relevant issues in arbitration.

Mythbusters: Demystifying Sports Arbitration

Bird & Bird and Peter & Kim

Rapporteur: Benji Batten, ACICA

Speakers:

• Brianna Quinn (Partner, Bird & Bird)
• Alexis Schoeb (Partner, Peter & Kim)
• Anthony Lo Surdo SC (Eight Wentworth Chambers)
• Ana Tuiketei (International Lawyer & Arbitrator, Fiji)

Building on the strong momentum of sports arbitration events at Australian Arbitration Week 2024 in Brisbane, a captive audience of practitioners filled the room at Bird & Bird’s Sydney office to gain insights into the unique world of Sports Arbitration from leading practitioners with extensive experience as both advocates, and arbitrators, in the sports arbitration arena.

Following introductions from Emily Forbes (Senior Marketing & BD Manager, Bird & Bird) and Deb Tomkinson (Director of Corporate Strategy and Counsel, Peter & Kim) the panel discussion set out to explain the unique aspects of sports arbitration when compared to commercial arbitration, with a particular focus on the Court of Arbitration for Sport (CAS), before turning to the development of commercial sports arbitration in the APAC region.

A         Unique elements of sports arbitration

The panel began by discussing some of the most distinctive features of sports arbitration in contrast to conventional commercial arbitration:

1          The need for speed: accelerated timelines in sports arbitration

Sports arbitration features accelerated timelines, with Ana Tuiketei giving an example of her work as a judicial officer for the HSBC Rugby Sevens, a weekend long tournament with teams playing multiple matches in quick succession. Ana explained that verbal decisions on disciplinary sanctions under the World Rugby sanctions for foul play must be made quickly, and followed up by written reasons which are often made publicly available.

Anthony Lo Surdo echoed this sentiment that the need for speed distinguished sports arbitration from international commercial arbitration. He first noted the specific expedited procedures in place for eligibility and selection disputes for major tournaments, and disputes which arise during those tournaments such as the Olympic Games and Asian Games. However, Anthony also emphasised that the procedures in general of the CAS, are designed with expedition in mind. 

2          Enforcement without the need for the New York Convention: sport-specific enforcement measures

Brianna Quinn highlighted how there are effective ways of enforcing sports arbitration awards without having to resort to the New York Convention, which is often the case in commercial arbitration. For example:

• FIBA, the world governing body for basketball, imposes in their regulations that clubs and national federations will follow arbitration awards that are issued, and if this rule is not followed, the clubs and federations are subject to sporting sanctions such as a ban on the transfer of players.
• In the football (soccer) context, FIFA and UEFA have funds held in Switzerland that will be dispersed to clubs in certain circumstances, and if a claimant obtains a successful financial award against one of those clubs, they can ask for those funds to be frozen.

3          The high level of public interest in sports arbitration proceedings

There is a high level of public interest in sports arbitration decisions, and as Ana emphasised, there is a heightened need to manage any personal and financial conflicts of interest, to ensure the integrity of both the arbitration process, and the sport itself. Brianna noted that the passion and personal nature of a lot of the procedures has come to really define sports arbitration, given the interest from fans of the athletes and clubs who have proceedings before sports arbitration tribunals such as the CAS.

4          Published decisions and CAS jurisprudence

Anthony Lo Surdo emphasised that unlike commercial arbitration which generally remains confidential (both the proceedings and the final award), a large volume of CAS awards have been published (the database can be accessed here), which has led to the development of a distinct CAS jurisprudence. Even though the arbitrators at CAS are not bound to follow a previous award, a habit of adherence had developed where both parties and the arbitrator rely on the ever-growing jurisprudence of past CAS awards.

B         Oral and written advocacy before the CAS: practical tips and reflections

Drawing upon their extensive experience with CAS proceedings, the panel offered a series of insights for those representing clients in CAS proceedings.

Alexis Schoeb and Brianna Quinn began by referring to The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials which provides an essential tool for practitioners to navigate CAS proceedings. This started a helpful discussion on effective advocacy before the CAS, given it is an international forum which features lawyers from both a common law, and civil law background, and one which is distinct from any individual national court.

The panel explained that often hearings at the CAS are shorter than advocates are accustomed to in commercial arbitration. When combined with the fact that CAS arbitrators often have a list of questions for the advocate to answer, (which creates a potential for an element of surprise), this creates a time urgency, and advocates need to carefully plan their submissions to ensure they cover their most essential points, and avoid the risk of being rushed through their arguments.

This time urgency, alongside the phenomenon of arbitrators asking counsel to prepare submissions on a particular article or point of law, highlights how arguments in CAS proceedings tend to be more focussed and direct when compared to commercial arbitration and domestic court proceedings. The arbitrator seeks to get to the heart of the issue, and benefits from counsel’s submissions that highlight the most important and central issue, while presenting a clear narrative story in support of their client’s case.

Finally, in the specific context of written submissions, the panel reflected that because there is only one round of written submissions at CAS, these submissions take on increased importance, when compared to a large commercial arbitration which may have multiple rounds of submissions.  As a result, there is benefit to preparing very detailed written submissions, which also serve as a reference point for the arbitrator following the hearing.

C         The value in geographical and gender diversity in the arbitrators appointed to resolve sports disputes

The panel discussed the value of gender and geographic diversity in the arbitrators of sport disputes, noting there has been historical trend for male arbitrators on the CAS panel to receive a higher number of re-appointments than female arbitrators.

Bringing her experience from the domestic context in Fiji, Ana Tuiketei explained the benefits of having diverse perspectives when it comes to more meaningful and creative solutions to resolving disputes, particularly when imposing disciplinary sanctions. Ana explained that promoting diverse perspectives this is consistent with the great strides being made by the sports themselves (such as Rugby Union and Rugby League) in recognising the diverse backgrounds of their participants, such the steps taken to create a safe and inclusive sporting environment for indigenous players, and members of the LGBTQIA+ community.

Turning to the CAS, the panel noted the increased work of the CAS to add geographic and gender diversity to their arbitrator appointments. The panel emphasised how the recent work by the CAS to advance the education program of CAS arbitrators, will also assist with this aim, while ensuring new appointees are equipped with the necessary skills and training to resolve disputes before the CAS effectively. To this aim, the panel also discussed the value of allowing emerging arbitrators to shadow experienced arbitrators.

D         Lessons from the model of the Basketball Arbitral Tribunal

In considering how some of the unique elements of international sports arbitration could be applied to the Australian context, Brianna Quinn, who is one of the 10 members on the closed arbitrator list of the Basketball Arbitral Tribunal (BAT) explained some of the efficiencies of the BAT and how Australia can learn from these when considering sports arbitration systems in the future.

The backstory of why the BAT was created

Having noticed issues of player exploitation, breaches of contract, and non-payment from their clubs, the founders of the BAT worked with agents of professional basketball players to insert a BAT clause into the players professional contracts with clubs.

Key procedural features of the BAT

• BAT arbitrations are decided ex aequo et bonoe from equity and conscience.
• The proceedings are always conducted before a sole arbitrator.
• The proceedings have an aim of being fair, cheaper and efficient, and are more often than not decided on the papers with no hearing, and only feature one round of submissions (with sometimes an additional procedural order with specific questions from the arbitrator).
• There are different tiers of disputes, for disputes over EUR 50,000, parties will receive a reasoned written award, but for disputes under EUR 50,000, the award just has the operative part (unless a party requests an award with reasons and pays an additional sum).
• Enforcement: the award can be taken to FIBA where FIBA can impose sporting sanctions such as transfer bans, or prevent players or clubs from being able to play until they respect their financial obligations.

Incorporating lessons from the BAT in Australia

Anthony Lo Surdo considered that, while Australia has a statutory National Sports Tribunal (NST), the NST cannot deal with employment or commercial disputes, so this creates a current or future market for a forum to such resolve disputes in Australia, particularly as the Australian sports industry, and associated disputes continue to grow in size. Anthony reflected that the BAT, and also the CAS model provides a useful framework for such a forum to work-off.

E          The future: commercial sports disputes and arbitration

Building off Anthony’s remarks, Alexis Schoeb concluded the panel discussion by considering the role for arbitrating disputes concerning the commercial side of sports (as opposed to disciplinary disputes, ethical issues, and appeals against decisions of national and international federations).

Alexis noted that for TV broadcasting disputes, commercial contract disputes (e.g concerning sponsorship, endorsement, stadium hire deals), there has been a trend in seeing some of these disputes go to other arbitral institutions such as the ICC, or being resolved through ad-hoc arbitration procedures. As a result, Alexis noted that no single international institution had taken the lead on resolving the commercial side of sports disputes through arbitration, of disputes which have frequently have millions of dollars on the line.

F          Concluding remarks

Alexis’ remarks finished the panel discussion on quite an inspiring high, noting the potential amongst Australian practitioners to remain involved and engaged in the sports arbitration field. The panel members reflected that they enjoy being involved this space because of the high level of passion and energy that the practitioners bring to their work, and this enthusiasm continued in the room as attendees kept the conversation going over lunch and refreshments.

Imagine a Day (or even an Hour) without the Internet! Data, Disputes and Downtime – Is Arbitration an Option for Data Centre Disputes?

Organiser: Resolution Institute

Rapporteur: Melanie Mohr, Hall & Wilcox

Host: Bird & Bird

Speakers:

• Emma Robinson, Resolution Institute (Moderator)
• Amanda Lees, King & Wood Mallesons
• Bill Smith, Bird & Bird
• Richard Simpson, Meta Moto

Event report:

As the title of the event suggests, it is difficult to imagine a world without the internet. It is therefore no surprise that data centres have become increasingly significant and that disputes involving them have become a point of interest. Emma Robinson, the moderator of this session, began the discussion by highlighting the crucial national infrastructure role of data centres. She explained that the current requirements posed on data centres lead to disputes, before then handing over to the speakers.

Where data centres might be going in the future 

The discussion began with Richard Simpson setting the scene for the future of data centres. He first addressed the challenges associated with data centres, such as their high water and energy demands. To illustrate the scale of data centre consumption, he compared it with that of Australian households. For example, the electricity use of one data centre is equivalent of 80,000 to 100,000 Australian households. Simpson then identified various growth drivers and demand factors for data centres, including the growing use of AI. He then moves on to the concept of ‘upcycle symbiosis’ which refers to an integrated industrial ecosystem combining water treatment, waste-to-energy and data.

Challenges of data centre developments in different jurisdictions

The development of data centres presents different challenges depending on the jurisdiction in question. These challenges were discussed by Amanda Lees and Bill Smith who first examined Singapore, a city-state with limited water and energy resources. They found that the high demand for water and power from data centres poses challenges to their development, including possible community resistance. In this context, the panel referred to Singapore’s three-year ban on data centres which was imposed in 2019. Following the lifting of the ban in 2022, a new application process for data centres in Singapore was developed. Consequently, market opportunities for data centres in Singapore are limited and the efficiency requirements for data centres are very high.

The panel then moves to discuss potential issues for data centres in other countries.  In Saudi Arabia, for example, the government prohibits hosting data outside the kingdom which impacts the development of data centres. The same applies to Vietnam, where data localisation rules stipulate that data must be kept in the country.

As an example of a government actively encouraging the development of data centres, the panel referred to Hong Kong where a high-tech park for data centres has been set up. In this context, the panellists discussed the case of SUNeVision Holdings Ltd v. Hong Kong Science and Technology Parks Corp which was subject to ten court decisions in Hong Kong (eight in first instance, two on appeal).

Data centres and disputes

The panel then addressed the burning questions that arise in the context of data centre disputes. It first explored the various types of disputes that have arisen in relation to data centres and concluded that they are generally similar to disputes in other EPC projects. This includes disputes relating to extension of time, changes in scope, adequacy of inputs as well as completion.

Is arbitration relevant for data centre disputes?

In line with Arbitration Week, the panel then discussed the role of arbitration in data centre disputes and its relevance. It was concluded that arbitration is an excellent dispute resolution mechanism for data centre disputes concerning engineering or construction aspects. One of the aspects that makes arbitration particularly well-suited to these kinds of data centre disputes is the possibility of consolidating proceedings. This is particularly relevant in cases involving subcontractors. Other factors suggesting the suitability of arbitration in this context include cross-border matters, language issues and jurisdictional matters. The expertise of arbitrators was also identified as a factor. In this context, the panellists also exchanged views on expert determination proceedings for data centre completion disputes, noting that not all jurisdictions provide legal backing for such proceedings.

Conclusion of the discussion

The discussion ended with the opportunity for questions which the engaged audience made ample use of. In response to these questions, the panel shared their views on the relationship between fast-tracking data centre developments and reducing carbon footprints. In this context, the panel referred to the new interdependence of data centres and the establishment of multi-utility centres instead of single-use ones. The panellists also addressed questions relating to insurance and the risks associated with data centre projects. They explained that, currently, people are mostly only concerned with insuring the buildings but have not considered the additional risks associated with data centres. Nevertheless, the panel pointed out that there has recently been a lot of M&A activity surrounding data centres and that we will see more disputes concerning breaches of warranties included in the respective SPAs. In addition, they emphasised that business interruptions will become problematic and that is essential not only to carefully consider the scope of the insurance policy, but also to think of cybersecurity insurance.

The discussion of this highly relevant topic not only illustrated the current challenges and developments of data centres but also provided insight into disputes that we already seeing or will see in the near future.

Just admit it? Admissibility and Jurisdiction in international arbitration after CBI Constructors v Chevron

Norton Rose Fulbright

Rapporteur: Xuandi Peng

Moderator: Tamlyn Mills (Partner, Norton Rose Fulbright)

Panellists:

• Callista Harris (Barrister, 7 Wentworth Selborne Chambers)
• Daisy Mallett (Legal Counsel and Independent Arbitrator, Mallett Law),
• Kent Phillips (Partner, Norton Rose Fulbright)
• Alan de Rochefort-Reynolds (Senior Associate, Norton Rose Fulbright)

Event report:

The distinction between jurisdiction and admissibility has long been debated in international arbitration. Once a doctrinal concept borrowed from public international law, it has recently gained renewed attention following the Australian High Court’s decision in CBI Constructors v Chevron. This panel discussion examined how this distinction operates in practice, and whether it continues to serve a meaningful role in shaping arbitral procedure and judicial review.

From the ICJ to Investment and Commercial Arbitration

Callista Harris opened the discussion by tracing the roots of the distinction to the International Court of Justice (ICJ). Early ICJ cases such as Barcelona Traction and the South West Africa decisions demonstrated that objections could relate either to the Court’s jurisdiction (consent to hear a case) or to admissibility (appropriateness of hearing it at that time).

The concept evolved further when the ICJ amended its Rules in 1972 to formally recognise “admissibility” as a procedural category. Later, this distinction was carried into investment arbitration, particularly in cases such as SGS v Philippines. As Harris noted, scholars like James Crawford and Jan Paulsson played pivotal roles in refining the meaning of admissibility—Paulsson famously proposed that admissibility determines whether a tribunal “should hear a claim,” whereas jurisdiction determines whether it “can.”

Transposition into Commercial Arbitration

The discussion then turned to how these concepts migrated into commercial arbitration. Harris suggested that the transposition occurred in three stages: from the ICJ into investment arbitration; from investment arbitration into domestic jurisprudence (especially in enforcement cases); and from there into general commercial arbitration practice.

Yet she posed a provocative question: when we talk about admissibility in arbitration, are we using the same word to mean something entirely different?

CBI Constructors v Chevron: Drawing the Line

Alan de Rochefort-Reynolds then unpacked the Australian High Court decision in CBI Constructors v Chevron. The case questioned whether certain preconditions to arbitration—such as escalation or procedural steps—should be characterised as issues of jurisdiction or admissibility.

Although the High Court recognised the conceptual distinction, it ultimately left open key questions about its precise application. Some judges appeared to lean toward treating non-fulfilment of preconditions as going to jurisdiction, while others hinted that such matters may instead concern admissibility—a difference that has significant implications for judicial review and the finality of arbitral awards.

Comparative Perspectives: Singapore and Hong Kong

Kent Phillips provided comparative insights from Singapore and Hong Kong, where courts have actively engaged with this debate. Singapore’s BBA v BAZ and BTN v BTP decisions, and Hong Kong’s C v D case, all grappled with whether non-compliance with mandatory pre-arbitration steps (like negotiation or mediation) affects jurisdiction or admissibility.

Both jurisdictions, he noted, have tended to align with the international trend: treating such issues as admissibility rather than jurisdiction, thereby limiting judicial intervention and reinforcing the finality of arbitral awards.

The Practitioner’s Perspective

Daisy Mallett offered a pragmatic lens, questioning whether the distinction truly matters in everyday practice. While theoretically elegant, she argued, the line between jurisdiction and admissibility rarely alters how tribunals conduct proceedings. Still, as CBI v Chevron shows, the classification can determine whether a tribunal’s decision is subject to judicial review—a subtle but important difference that practitioners must keep in mind.

Mallett also observed that parties increasingly raise such objections early in proceedings, and tribunals are more inclined to deal with them at a preliminary stage if they could dispose of the dispute entirely.

Looking Ahead

As the discussion came to an end, the panel reflected on the persistent tension between conceptual clarity and practical value. While the distinction between jurisdiction and admissibility remains an intellectually elegant framework, its real significance in international arbitration often depends on how tribunals and courts apply it in practice. In the end, what truly matters is not how the issue is labelled, but whether the balance between arbitral autonomy and judicial oversight can be maintained. The conversation suggested that theory and practice continue to evolve together—and that the meaning of “just admit it” will keep unfolding across different seats and systems of arbitration.

From Conflict to Resolution: Tackling Multi-Contract Arbitrations in Construction

HFW Australia / Society of Construction Law Australia (SoCLA)

Rapporteur: William Hettrick | Lawyer (Construction Disputes), Clayton Utz

Panellists:

• Andrew Goddard KC, Barrister, Atkin Chambers
• Adam Robb KC, Barrister, 39 Essex Chambers
• Nick Watts, Partner, HFW Australia
• Jo Delaney, Partner, HFW Australia

Event report:

Introduction

On the fourth day of AAW 2025, the Society of Construction Law Australia (SoCLA) and HFW Australia co-hosted a panel on one of the thorniest issues in construction disputes: how to manage multi-party, multi-contract arbitrations.

The dilemma of consent

The panel began with a simple but critical question: if joinder of parties and consolidation of proceedings are routine in court, why are they so problematic in arbitration?  The answer, as the speakers observed, lies in the consensual nature of arbitration.

Unlike courts, arbitral tribunals derive their jurisdiction from the agreement of the parties.  Tribunals therefore face difficult jurisdictional questions, and parties face the risk of unenforceable awards, in multi-party, multi-contract arbitrations.  Unless the parties have expressly agreed to joinder or consolidation in their agreements, tribunals are likely to have no jurisdiction to order either.

Pros and cons of multi-party proceedings

From a commercial perspective, multi-party arbitrations promise cost and time savings, particularly for principals seeking to resolve all disputes in a single forum.  However, the panel cautioned that such efficiency is often illusory.  Subcontractors and consultants, whose involvement may be limited to discrete issues, rarely see an advantage in being drawn into large, complex proceedings. Experts also face difficulties, with different scopes of work, programmes, and milestones across contracts making analysis and testimony significantly more complicated.

The consensus was clear: there is no “one-size-fits-all” solution.  While multi-party arbitration may appear attractive in theory, it can just as easily produce procedural chaos, inconsistent determinations or unenforceable awards.

The perils of assumption: recent case law

In CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2024] HCA 28, the High Court held that the arbitral tribunal lacked jurisdiction after it had become functus officio, underscoring that even experienced tribunals can err on fundamental procedural points.  You may have an illustrious tribunal, observed one panellist, but if the jurisdictional footing is unsound, you can waste enormous time and cost.

The Singapore case of CJD v CJE & CJF [2021] SGHC 61 likewise highlights the limits of implied consent.  Here, the court held that a parent company could not be joined under Article 22 of the 2014 LCIA Rules without express consent, even though it had signed a generally worded arbitration clause as part of a Joint Venture agreement.

Proportionate liability: a new frontier

A further complexity arises from Australia’s proportionate liability regime. The panel examined Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24 (Tesseract), in which Edelman and Stewart JJ (in dissent) questioned how proportionate liability could coherently apply in arbitration, given the mandatory features of consent and confidentiality.  Traditionally, parties comfortably assumed that proportionate liability did not extend to arbitration; Tesseract of course now casts doubt on that assumption.

Three practical challenges follow:

• First, a respondent seeking to apportion liability among the concurrent wrongdoer/s must first obtain their express consent; this is a significant hurdle if they are not parties to the arbitration agreement or if they otherwise withhold consent.
• Second, assuming joinder is not successful, the tribunal must nevertheless apply the applicable proportionate liability legislation and, in the circumstances, does so with incomplete information as it will having no evidence or submissions from the concurrent wrongdoer/s.
• Third, and again assuming there has been no joinder, the award would of course not be binding on the alleged concurrent wrongdoer/s and it is unclear how subsequent tribunals would even be able to consider or even apply its findings in further or related arbitrations against the concurrent wrongdoer/s, if they are to be pursued for their share of the liability in separate arbitrations. This directly contrasts with litigation, where the decision of a court would be binding upon another court in such further or related proceedings.

As construction activity accelerates in the lead-up to the Brisbane 2032 Olympics, the panel predicted these issues will soon test tribunals and practitioners alike particularly in Queensland, where contracting out of proportionate liability is prohibited.

Drafting for success

Looking ahead, the panellists agreed that multi-contract disputes are best addressed at the drafting stage.  Where consolidation or joinder is foreseeable, project principals, particularly in large-scale projects involving multiple packages, should secure consent from all relevant parties upfront.  Well-drafted dispute resolution clauses can align procedures across contracts and reduce the risk of conflicting positions when faced with commencing arbitration.

It was noted that this often requires both joinder and consolidation to be expressly included in dispute resolution clauses, each carefully tailored to the relevant project documents.  Common disputes agreements, familiar in project finance, may offer a model, but the extent of consent must be clearly defined. Parties should make clear whether which party or parties they are consenting to arbitrate with, i.e. principal and head contractor, principal, head contractor and subcontractors, or beyond. Otherwise, a principal may find itself embroiled in unwanted disputes with subcontractors, or a head contractor squeezed in the middle between principal and subcontractors alike.

A careful balance

As one panellist remarked, “Be careful what you wish for”.  The panel concluded that while multi-party, multi-contract arbitrations may occasionally promote efficiency or at the very least facilitate settlement, it is no easy feat.  Its success depends on meticulous forward-thinking to provide for aligned contractual positions which ensure clearly defined and express consent.

International Arbitration cocktail reception

Ashurst, FTI Consulting and Omni Bridgeway

Ashurst, FTI Consulting and Omni Bridgeway proudly hosted the International Arbitration cocktail reception on Thursday, 16 October 2025 with the borderless community that we belong to.

It was a great evening of DJ beats and saxophone vibes as we celebrated and unwound from an insightfully packed week of events.

ICC YAAF: ArbitraBattle – The Ultimate Arbitration Showdown

ICC YAAF / Corrs Chambers Westgarth

Rapporteurs: Anna Grunseit and Maxen Williams (Corrs Chambers Westgarth)

Event report:

This was an exciting event organised by ICC YAAF and hosted by Corrs Chambers Westgarth that consisted of five mini debates on contentious issues in arbitration.

Oliver Spackman, Special Counsel at Corrs Chambers Westgarth, Sydney, and Nivvy Venkatraman ICC YAAF Representative for South Asia and Senior Associate at HFW, Sydney introduced the event and announced that “the battle was on”.

After the debates, the audience voted for the winner of each.

Debate 1: solicitors v barristers

The motion for the first debate was “this house believes that barristers should lead advocacy in international arbitration, not solicitors”. Contrary to their professional affiliations, Amanda Lees, Partner at King & Wood Mallesons, Singapore, spoke in favour of barristers and Daniel Meltz AM, Barrister at 12 Wentworth Selborne Chambers, Sydney, spoke in favour of solicitors.

Ms Lees made her argument in verse. She pointed out, while echoing the cadence of Banjo Paterson, that the competing demands solicitors face, including client management, business development, and case preparation, leave little space for dedicated advocacy.

Mr Meltz responded by noting that in many jurisdictions, the profession isn’t split. Solicitors often have a deeper understanding of the case and documents and can conduct effective advocacy without handing matters over to a barrister, which would result in double-handling and extra costs.

Audience verdict: Daniel Meltz won for the solicitors.

Debate 2: AI and arbitral decision-making

The motion for the second debate was “this house believes that AI will replace all forms of decision making by human arbitrators”. Monty Taylor, Barrister at Tenth Floor Chambers, Sydney, argued in the affirmative. Erika Williams, Independent Arbitrator at Williams Arbitration, Brisbane, argued in the negative.

Mr Taylor identified four aspects of arbitral decision making: procedural, jurisdictional, merits and damages. In each of these areas, he argued, AI was tailor made to digest relevant authorities and materials and make an appropriate decision.

Ms Williams countered by noting AI’s lack of empathy, moral reasoning, and cultural sensitivity. Human reasoning evolves with language and context and only humans can provide the fairness, discretion, and legitimacy parties expect.

Audience verdict: Monty Taylor won for the machines.

Debate 3: The need for uniform rules for privilege

The motion for the third debate was “this house believes that uniform rules for privilege are necessary for international arbitration”. Callista Harris, Barrister at 7 Wentworth Selborne, Sydney, argued in favour of that proposition. Emily Hay, Managing Counsel at ArbBoutique, Brussels, and Chair of the ICC Australia Arbitration Committee, argued against.

Ms Harris pointed out that inconsistent privilege rules undermine the principle of equality of parties, create unfairness, and undermine efficiency.

Ms Hay responded by noting that Article 9 of the IBA Rules on the Taking of Evidence in International Arbitration already exists as a uniform rule which strikes the appropriate balance between certainty and flexibility. It would be impossible to agree on uniform rules with any greater specificity.

Audience verdict: Emily Hay won for the status quo.

Debate 4: Enhanced transparency and ISDS

The motion for the fourth debate was “this house believes that enhanced transparency in investor-state dispute settlement should be encouraged”. Iuliia Samsonova, Senior Associate at Watson Farley & Williams, Sydney, argued in the affirmative. Monica Chong Wan Yee, Partner at WongPartnership LLP, Singapore, argued in the negative.

Ms Samsonova noted the public concern about secretive ISDS processes. When state policy and public funds are involved, openness is essential. Transparency can strengthen legitimacy and help to build a growing body of jurisprudence.

Ms Chong Wan Yee argued that current rules already provide adequate transparency, especially through the publication of awards. More rules wouldn’t necessarily build trust, and it is fundamental that party autonomy is preserved in arbitration, which would be undermined by further rules mandating transparency.

Audience verdict: Monica Chong Wan Yee won for confidentiality.

Debate 5: Diversity in arbitration

The motion for the fifth debate was “this house believes that Asia-Pacific arbitration is more diverse in practice than in perception”. Thomas Fearis, ICC YAAF Representative for North Asia and Head of Business Development and Client Services – APAC at Berkeley Research Group, Hong Kong, argued in the affirmative. Abang Iwawan, ICC YAAF Representative for South Asia and Founding Partner of Abang & Co, Kuala Lumpur, argued in the negative.

Mr Fearis noted that diversity in arbitration includes gender diversity as well as geographical, legal and cultural diversity. In each of these aspects, Asia-Pacific arbitration was increasingly diverse in practice, with improving gender diversity, a diverse mix of common, civil and shariah law systems in Asia, and an embrace of multi-lingual proceedings in jurisdictions like Singapore.

Mr Iwawan, by contrast, argued that the perception of progress masks structural and epistemic bias. Many institutions still reflect colonial legacies, with power centred in Western norms and practices. True diversity, he said, is about outcomes, not optics or tokenism.

Audience verdict: Abang Iwawan won, highlighting more work to be done in practice.

Young Arbitration Lunchtime Roundtable

Hosts: Young ITA, Young ICCA, Young International Arbitration Group (YIAB), ACICA45

Venue Host: Ashurst

Rapporteur: Jordon He, Ashurst

Speakers:

• Luke Carbon, Partner, Ashurst
• James Allsop, Partner, HSF Kramer
• Ryan Cable, Senior Associate at Clayton Utz
• Matt Lee, Partner at Lindsay, Francis & Mangan
• Deborah Tomkinson, Director of Corporate Strategy & Counsel at Peter & Kim
• Erika Williams, Independent Arbitrator
• Caroline Swartz-Zern, In-house counsel (Disputes & Investigations) at SMEC
• Alexandra Einfeld, Independent Tribunal Secretary

Event report:

On the last day of Australian Arbitration Week, an engaging lunchtime roundtable for mid-level arbitration practitioners took place at Ashurst, collaboratively organised by various young arbitration groups around the world.  The speakers, with roles spanning from solicitors in private practice to in-house counsel at corporations to arbitral tribunal members, shared their stories as to how they got into their current roles.

The two central topics for the session, sandwiching an hour of feasting on a luxurious buffet catered by Ashurst, were:

1. career strategies for arbitration practitioners in Australia; and
2. practical tips for efficiency in arbitration.

There were many highlights from the session.

James Allsop

James spoke about his experience moving from a commercial litigation role into international arbitration.  His advice was that enthusiasm is key, and “you should just let others know that you are interested“.

James said that he put his hand up for an international secondment, which allowed him to move from London to Tokyo, where he practised solely international arbitration.

He now practises international arbitration as a partner at HSF Kramer’s Melbourne office, establishing a practice that has grown significantly in the last few years.

Luke Carbon

Luke Carbon spoke of his career journey, moving from Perth to Sydney, before moving to London and later back to Sydney.

He now practices international arbitration across the Asia-Pacific region as a partner at Ashurst’s Sydney office. His career journey and connections in other offices mean that he is well-placed to help clients leverage the Ashurst network when working on international arbitrations.

Luke said that it is normal for one’s priorities to change, and gave the tip that, while lawyers early in their careers should have a general plan, they should also expect and plan for that plan to change over time.

Matt Lee

Matt also spoke of his career journey, from being a lawyer in the United States to returning to Australia.

Matt said that it is good to have a general idea of the direction you want to head in.  At the end of the day, you are the only one who is fully invested in your career.

Matt emphasised that relationships really matter if you want to enter the international arbitration space.

Deb Tomkinson

Deb shared her story of her very diverse pathway to her current position.

Her advice to younger lawyers is to follow your instincts and ask yourself what gets you excited.  Deb stated: “You make your own luck sometimes.”

Caroline Swartz-Zern

Caroline gave a very intriguing account of how she ended up in her current role, from attending law school in both the United States and Paris, to later aiming to become an arbitrator and moving to Australia.

She said that her ultimate goal at the time was to become an arbitrator, and she took every step to achieve that goal along her career pathway.

Caroline gave the tip that junior lawyers should become known as the arbitration lawyer in a firm, so that others may come to you with specific questions or work related to arbitration.

Caroline also said that it is important to have a great community of people around you with whom you can brainstorm and bounce around ideas.

Alexandra Einfeld

Alex spoke of her journey entering her current role as an independent tribunal secretary and provided insights into what the role entails.

The tribunal secretary role is not on the traditional pathway of “law student doing clerkships then becoming a graduate before settling into a team as a solicitor”.  However, Alex outlined the benefits of being a tribunal secretary, including that it is a flexible role with far better hours, which suits the lifestyle of people who seek work-life balance and flexibility because of personal circumstances.  Alex also said that some people seek tribunal secretary roles and use that as a segue to becoming an arbitrator.

Erika Williams

Erika was the only speaker at the roundtable who is an independent arbitrator, and she shared her story of how she transitioned from a solicitor in private practice to becoming an arbitrator.

Erika gave insights and tips from the perspective of someone who sits as an arbitrator.

Erika also shared a quote that resonated with her: “Luck is when preparation meets opportunity”.

In addition to career tips for junior practitioners, the speakers also discussed common issues affecting tribunal efficiency.  They spoke of the importance of developing and maintaining good habits over the course of the arbitral process, and also balancing the commercial interests of the client from a costs perspective with the necessity of “winning” the arbitration.

All in all, it was a very interesting discussion that gave many junior practitioners a lot of food for thought.