Australian Arbitration Week 2025

This article was co-authored with Ashleigh Giles, Ananya Mitra, Kate Andersson, and Eibhlin Murrant.

Australian Arbitration Week 2025 was held in Sydney during the week of 13 October. Norton Rose Fulbright was pleased to host two panel discussions on topical issues impacting international arbitration. In this update, our team sets out some key insights from our events during the week.

On 15 October 2025, Norton Rose Fulbright hosted a breakfast panel titled, ‘Breaking bread: slicing through the “inherent tension” between cross-border insolvency and arbitration in the Asia-Pacific’. The panel was moderated by Ananya Mitra, Senior Associate at Norton Rose Fulbright, and comprised the Honourable James Allsop AC, Scott Atkins, Partner and Global Head of Restructuring at Norton Rose Fulbright, Kei-Jin Chew, Managing Director at Ascendant Legal LLC (in alliance with Norton Rose Fulbright in Singapore), and Emily Tillett, Vice President at Burford Capital, with opening and closing remarks from Daniel Allman, Partner at Norton Rose Fulbright. Key takeaways from the panel included:

• Insolvency and arbitration are often perceived as being in tension, because insolvency frameworks are creatures of domestic legal systems which facilitate distribution of assets pari passu between creditors. In contrast, arbitration clauses are premised on the autonomy of contracting parties.
• Different jurisdictions have approached this tension by formulating different tests for when insolvency-related disputes can and should be resolved by arbitration. This question is becoming more pressing in the context of global commerce, with insolvencies increasingly frequent in recent years.
• Courts in Singapore and the United Kingdom have provided important guidance on the relevant factors when deciding whether to allow arbitrations to proceed in an insolvency context.
• The Singapore International Arbitration Centre (SIAC) has also recently published a first-of-its-kind Restructuring and Insolvency Arbitration Protocol to facilitate the resolution of insolvency-related disputes by arbitration. The UNCITRAL Working Group V is also developing a choice of law instrument, in order to enable insolvency-related disputes to be resolved by arbitration.
• The panel was of the view that, notwithstanding their traditional incongruity, there is significant potential for the use of arbitration for insolvency-related disputes. The panel remarked that arbitration provides a means for creditors to select a restructuring friendly governing law for their claims; can encourage hold-out creditors to participate constructively; offers certainty as awards can be recognised and enforced globally under the New York Convention; and strengthens and facilitates genuine pre-insolvency rescue-oriented negotiation processes in legal systems with weaker rescue culture.

Later in the week, on 16 October 2025, Norton Rose Fulbright had the pleasure of hosting an afternoon event titled, ‘Just Admit it: Jurisdiction and Admissibility After CBI Constructors v Chevron’.

The panel was moderated by Tamlyn Mills, Partner at Norton Rose Fulbright. Tamlyn was joined by Callista Harris, Barrister at 7 Wentworth Selborne Chambers, Daisy Mallett, Legal Counsel and Independent Arbitrator at Mallett Law, Kent Phillips, Partner at Norton Rose Fulbright, and Alan de Rochefort-Reynolds, Senior Associate at Norton Rose Fulbright.

Our panellists provided valuable insights on the evolving boundaries between ‘jurisdiction’ and ‘admissibility’, and the usefulness of recognising the distinction in international commercial arbitration, following the High Court of Australia’s decision in CBI Constructors Pty Ltd & Anor v Chevron Australia Pty Ltd. In summary:

• The jurisdiction-admissibility distinction, which has its roots in ICJ jurisprudence, has been transposed into domestic jurisprudence through, initially, the enforcement of investment awards and, later, of commercial awards.
• The distinction and the related tribunal versus claim test may be a convenient shorthand, but its practical application has been called into question by several commentators and practitioners in the arbitral community.
• What is clear is that many modern arbitral rules increasingly support early intervention by a tribunal or sole arbitrator, with interim decisions being used to streamline proceedings and reduce time and cost. Familiarity with these provisions can help practitioners advocate for efficient case management and achieve desired results for clients.
• If parties choose to go down the path of bifurcation, interim decisions must be clearly ring-fenced and drafted to ensure the issues being dealt with are capable of being finally disposed of. Precision here protects enforceability and procedural integrity.