{"id":290381,"date":"2026-05-21T16:00:00","date_gmt":"2026-05-21T14:00:00","guid":{"rendered":"https:\/\/dailyjus.com\/?p=290381"},"modified":"2026-05-21T15:40:59","modified_gmt":"2026-05-21T13:40:59","slug":"2025-arbitration-year-in-review-australia","status":"publish","type":"post","link":"https:\/\/dailyjus.com\/index.php\/2026\/05\/21\/2025-arbitration-year-in-review-australia\/","title":{"rendered":"2025 Arbitration Year In Review – Australia"},"content":{"rendered":"\n
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THE AUTHORS:<\/strong>
Michael Neumeier<\/strong>, Associate at Jones Day<\/strong><\/a>
Dominic Carlsen<\/strong>, In-house Legal Counsel at Santos Ltd<\/strong>
Jack McNally<\/strong>, International Lawyer and Research Fellow at University of New South Wales<\/strong><\/p>\n\n\n\n

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This article was featured in Jus Mundi<\/a>‘s 2025 Arbitration Year in Review<\/strong>, an annual publication analyzing arbitration developments across 40+ jurisdictions on 6 continents. This edition brings together young practitioners and senior experts to capture the year’s most significant legislative reforms, enforcement trends, and institutional innovations.<\/p>\n\n\n\n

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Download now<\/a><\/div>\n<\/div>\n<\/blockquote>\n\n\n\n
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Australia<\/a>\u2019s arbitration landscape in 2025 has featured notable developments across both the domestic and international spheres. That year included the resolution of a high profile investment treaty claim in\u00a0the Zeph Investments arbitration, alongside a series of significant decisions shaping the interpretation and enforcement of arbitration agreements and awards. In addition, 2025 marks a milestone for the\u00a0ACICA (Australian Centre for International Commercial Arbitration),<\/a>which celebrated forty years of contribution to the growth and practice of international arbitration in Australia.\u00a0<\/p>\n\n\n\n

We start with a review of several significant Australian legal decisions followed by a reflection on the impact of ACICA over the last 40 years.<\/p>\n\n\n\n

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Significant Australian Decisions <\/strong><\/h2>\n\n\n\n

Australia Defeats Investment Treaty Claim<\/strong><\/h3>\n\n\n\n

In\u00a0Zeph Investments Pte Ltd v Commonwealth of Australia<\/em>, PCA Case No 2023-40<\/a>, the tribunal\u00a0comprised of\u00a0Gabrielle Kaufmann-Kohler<\/a>\u00a0as chair and\u00a0William Kirtley<\/a>\u00a0and\u00a0Donald McRae<\/a>\u00a0as co-arbitrators, issued a jurisdictional award in September dismissing the claims brought by Zeph Investments (\u201cZeph<\/strong>\u201d), a Singaporean holding company owned by Australian mining magnate and former politician Clive Palmer.\u00a0<\/p>\n\n\n\n

The arbitration, brought against the Commonwealth of Australia (\u201cAustralia\u201d<\/strong>), concerned emergency legislation introduced by Western Australia (an Australian State Government) in 2020. That legislation amended the \u201cstate agreement\u201d (by extinguishing the arbitration agreement) between Minerology and Western Australia, thereby removing Minerology\u2019s ability to pursue damages in the arbitration forum. The emergency legislation was introduced to limit Western Australia\u2019s exposure to significant damages (predicted by some experts to potentially reach the State government\u2019s annual budget), following two successful arbitration awards on liability in which Minerology (Zeph\u2019s subsidiary) had established that Western Australia had wrongly refused to assess its mining proposal. <\/p>\n\n\n\n

Following a failed constitutional law claim challenging the emergency legislation, Mr Palmer directed Zeph to commence an investment treaty claim against Australia under the Agreement Establishing the ASEAN – Australia – New Zealand Free Trade Area (2009)<\/a> (\u201cAANZFTA\u201d<\/strong>), claiming US$195 billion. <\/p>\n\n\n\n

The arbitral tribunal declined jurisdiction, finding that Zeph was not an \u201cinvestor\u201d that had made an \u201cinvestment\u201d within the meaning of the AANZFTA. Zeph was consequently ordered to pay Australia\u2019s arbitration costs, which amounted to US$8.9 million.<\/p>\n\n\n\n

Mr Palmer has said he intends to challenge the award before the Swiss courts. <\/p>\n\n\n\n

Zeph has also brought three further investment treaty claims against Australia that are still pending (PCA Case No 2023-67<\/a>, PCA Case No 2024-23<\/a>, PCA Case No 2024-48<\/a>).<\/p>\n\n\n\n

Significant Decisions by Australian Courts<\/strong><\/h3>\n\n\n\n

It was a busy year of arbitration decisions before the Australian courts, which delivered a substantial and diverse body of case law touching nearly every stage of the arbitral lifecycle. <\/p>\n\n\n\n

In 2025, Australian courts adopted a consistently robust, pro-arbitration posture: compelling parties to honour agreements to arbitrate, respecting the kompetenz-kompetenz<\/em><\/a> principle, and deploying an increasingly sophisticated range of remedies to ensure the effective enforcement of foreign awards. At the same time, the courts reaffirmed the narrow boundaries of permissible judicial intervention, maintaining a high threshold for appeals and set-aside applications and emphasising the centrality of party autonomy and finality. These decisions reinforce Australia\u2019s standing as a dependable, arbitration-supportive jurisdiction and demonstrate that Australia\u2019s courts continue to merit their pro-arbitration reputation. This section provides a snapshot of some of the key decisions issued by Australian courts over the course of the year.<\/p>\n\n\n\n

Stays in Favour of Arbitration<\/strong><\/h3>\n\n\n\n

Australian courts are required by section 7 of the International Arbitration Act 1974 (Cth)<\/a> (\u201cIAA\u201d<\/strong>) to stay proceedings commenced in breach of an arbitration agreement. However, certain matters are not arbitrable under Australian law. This issue of arbitrability arose in the case of Elecnor Australia Pty Ltd v Clough Projects Australia Pty Ltd <\/em>[2025] NSWSC 610<\/a>, which concerned a joint venture for a major energy infrastructure project. After Clough entered administration, Elecnor sought declarations and specific performance concerning a buy-out under the joint venture deed, while Clough and its administrators counterclaimed for contribution to substantial performance security calls. Elecnor sought to refer the counterclaims to arbitration in Singapore. <\/p>\n\n\n\n

The Supreme Court of New South Wales accepted that the arbitration clause was mandatory and broad enough to capture the counterclaims and stayed them accordingly. However, Elecnor\u2019s own claims were not stayed, as they raised matters under the Corporations Act 2001 <\/em>(Cth) and the operation of a deed of company arrangement. The Court considered that these issues were not \u2018capable of settlement by arbitration\u2019, recognising that they involved more than merely the settlement of a private dispute.<\/p>\n\n\n\n

Enforcement Against Sovereign States<\/strong><\/h3>\n\n\n\n

Next, investors are increasingly turning to the Australian courts to seek recognition and enforcement of foreign arbitral awards rendered against sovereign States. <\/p>\n\n\n\n

The Republic of India v CCDM Holdings LLC <\/em>[2025] FCAFC 2<\/a> arose from an award obtained by investors in an ad hoc arbitration against India under the Mauritius\u2013India BIT (1998)<\/a>. India resisted enforcement in Australia on the basis that \u2018a foreign State is immune from the jurisdiction\u2019 under section 9 of the Foreign States Immunities Act 1985 (Cth)<\/a>. <\/p>\n\n\n\n

At first instance<\/a>, the Federal Court of Australia found that a statutory exception to State immunity applied: by signing the New York Convention, India agreed that Australia would recognise arbitral awards within the Convention\u2019s scope, including awards involving India as a party. India\u2019s ratification of the Convention thus constituted a \u2018submission by agreement\u2019 to proceedings in Australia. This finding was overturned by the Full Court of the Federal Court of Australia based on India\u2019s reservation under Article I(3) of the New York Convention. The reservation limits the application of the Convention to legal relationships considered as commercial under Indian law. The Full Court found that: (i) India did not submit to Australian proceedings falling outside that reservation; and (ii) the award did not concern a \u2018commercial\u2019 relationship as it arose from India\u2019s obligations under the relevant BIT. This decision may have broader implications given the number of States that have made similar Article I (3) reservations. An appeal was heard by Australia\u2019s apex court, the High Court of Australia, in early November 2025.  <\/p>\n\n\n\n

Blasket Renewable Investments LLC v Kingdom of Spain<\/em> <\/strong>[2025] FCA 1028<\/a> concerned the recognition of four ICSID awards handed down against Spain under intra-EU BITs following Spain\u2019s repeal of certain renewable energy subsidies. Spain argued unsuccessfully that it had not waived foreign State immunity in acceding to the ICSID Convention, and further contended that the High Court\u2019s decision in Kingdom of Spain v Infrastructure Services Luxembourg S\u00e0rl<\/em> [2023] HCA 11<\/a> was wrongly decided. Spain provided that any immunity it waived in acceding to the ICSID Convention could only extend to awards that are binding. Relying on the Achmea v. Slovakia<\/em><\/a> <\/em>and <\/em>Komstroy v. Moldova<\/em><\/a> <\/em>decisions, Spain argued that the four awards were not binding as they were inconsistent with EU foundational treaties. The Federal Court rejected these arguments and found in favour of the award creditors, dismissing Spain\u2019s EU law-based objections and State immunity defences.<\/p>\n\n\n\n

Set Aside Applications<\/strong><\/h3>\n\n\n\n

Consistent with the supportive approach to the enforcement of awards, Australian courts have required applicants to meet a high threshold before they will intervene to set aside arbitration awards. It is only in clear situations of procedural unfairness or a manifest legal error that the courts traditionally intervene. <\/p>\n\n\n\n

In Clarke Energy (Australia) Pty Ltd v Power Generation Corporation (Trading as Territory Generation) and Robert Holt KC <\/em>[2025] QSC 6<\/a>, Clarke sought to set aside a partial award on public policy grounds, alleging denial of procedural fairness. The Supreme Court of Queensland rejected the application, finding that the allegedly overlooked issue  was neither properly pleaded nor squarely within the arbitrator\u2019s remit and, in any event, had been considered. The Court emphasised that an arbitrator is not required to expressly navigate all submissions advanced by the parties; an issue can be implicitly resolved within the reasoning of the award. The application to set aside was therefore dismissed. The key takeaway is that arbitral awards will not be set aside for procedural imperfections unless they result in a fundamental denial of justice.<\/p>\n\n\n\n

This standard was found to be met by the Supreme Court of Western Australia in\u00a0Fremantle Port Authority v Martin<\/em> [2025] WASC 301<\/a>. The arbitrator, who was not legally qualified, adopted a valuation methodology not advanced by either party. The Court held that the arbitrator\u2019s approach deprived Fremantle Port of a reasonable opportunity to present its case and resulted in a real risk of a materially different outcome. Accordingly, this amounted to a material denial of procedural fairness. The Court also held that the arbitrator had exceeded the scope of their authority. The referral to arbitration gave the arbitrator the authority to decide points of difference between the valuers appointed by the parties.\u00a0\u00a0It did not provide the arbitrator with the jurisdiction to develop their own valuation methodology. This decision demonstrates that while the threshold for intervention is high, Australian courts will intervene where the arbitral process falls short of minimum standards of fairness and fails to provide reasoned consideration of the parties\u2019 positions.<\/p>\n\n\n\n

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ACICA at 40: Four Decades of Shaping International Arbitration in Australia <\/strong><\/h2>\n\n\n\n

Going beyond the national courts, another significant milestone was achieved this year. The ACICA<\/a> marked its 40th anniversary in 2025, a milestone solidifying its role in positioning Australia as a trusted seat and arbitration-friendly jurisdiction. Initially formed in 1985 as a non-profit public company, ACICA began with a modest remit, primarily appointing arbitrators under the UNCITRAL Rules. Its evolution accelerated in 2005 with the launch of the ACICA Arbitration Rules, cementing its status as a fully-fledged arbitral institution. Subsequent revisions to the Rules in 2011, 2016, and 2021 introduced a range of innovations, including emergency arbitrator provisions and expedited procedures. ACICA is currently preparing its 4th revision to its Arbitration Rules, to be published in 2026. <\/p>\n\n\n\n

ACICA\u2019s caseload reflects both the scale and diversity of ACICA governed arbitrations. In 2024, ACICA administered 54 matters with a combined quantified case value exceeding AUD 3.315 billion, up 57.9% from 2023. Of note, 46% of new arbitrations in 2024 involved at least one non-Australian party, reinforcing ACICA\u2019s international reach. These matters spanned sectors including energy, construction, and technology. Diversity remains a core priority; institutional appointments in 2024 achieved gender parity (50% female), and early 2025 data suggest this trend is continuing. ACICA also reported strong engagement with its digital innovations and sustainability initiatives, including enhanced online case management tools and the launch of its Sustainability Protocol, for which it received the Campaign for Greener Arbitrations Award at the 2025 GAR Awards. <\/p>\n\n\n\n

The 40th anniversary was celebrated at a record-breaking Australian Arbitration Week<\/a> in Sydney (12\u201317 October 2025). The week commenced with a Welcome Reception at Corrs Chambers Westgarth overlooking Sydney Harbour, attended by over 180 guests. <\/p>\n\n\n\n

Yvonne Weldon AM, Sydney City Councillor, commenced the formalities with an inspiring Welcome to Country, followed by welcoming remarks from Joshua Paffey (Corrs Chambers Westgarth and ACICA Vice-President). Judith Levine<\/a> (Independent Arbitrator and ACICA President) then introduced Her Excellency the Honourable Margaret Beazley AC KC, Governor of New South Wales, who delivered thoughtful opening remarks about the importance of institutions and the rule of law. Diana Bowman<\/a> (ACICA Secretary General) thanked Her Excellency and introduced the Honourable Stephen Gageler AC, Chief Justice of the High Court of Australia, who delivered remarks about the positive relationship between ACICA and the judiciary, including the combined effort to promote the harmonisation of approaches to arbitration-related court proceedings. <\/p>\n\n\n\n

The formalities concluded with a Life Fellow Membership Ceremony, during which Judith Levine awarded Life Fellowships to three former ACICA Presidents, Dr Michael Pryles AM PBM (President from 2002\u20132008), PAC Member Professor Doug Jones AO (President from 2008\u20132015) and Ms Georgia Quick (President from 2021\u20132024), for their outstanding contributions to ACICA, with the certificates being presented by Her Excellency the Honourable Margaret Beazley AC KC. <\/p>\n\n\n\n

The flagship International Arbitration Conference, the following day, themed \u2018Revolutions and Solutions: Future-Proofing Arbitration<\/em><\/a>\u2019, drew more than 300 delegates from 18 countries. <\/p>\n\n\n\n

Following a Welcome to Country delivered by Melissa Stubbings (Merana Aboriginal Community Association Inc.), Judith Levine set the tone for the day with an engaging Opening Address, with the Honourable Andrew Bell, Chief Justice of the Supreme Court of New South Wales, then delivering a thought-provoking and insightful Keynote Address on \u2018AI in International Arbitration\u2019. This was followed by seven panel sessions examining the evolving role of arbitration in an era of global change. <\/p>\n\n\n\n

As ACICA looks ahead, its commitment to innovation, diversity, and global engagement ensures that the next 40 years will be as transformative as the last. <\/p>\n\n\n\n

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Discover more insights into the latest developments in arbitration in 2025 from around the world now<\/p>\n\n\n\n

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ABOUT THE AUTHOR<\/strong> <\/p>\n\n\n\n

Michael Neumeier<\/strong> is a lawyer in Jones Day<\/strong><\/a>\u2019s global disputes practice based in Brisbane, Australia, where he represents major corporations, primarily in the Energy and Resources sectors, before state courts and arbitral tribunals. Prior to joining Jones Day in 2023, Michael was a Deputy Counsel at the International Chamber of Commerce (\u201cICC<\/strong>\u201d)<\/a> in Paris, France. He administered hundreds of disputes originating from the DACH (Germany, Austria, and Switzerland), BENELUX (Belgium, Netherlands, and Luxembourg), and Scandinavian regions, where the language of arbitration was either English or German.
*Any views expressed by Michael in this paper are his own private views and are not attributable to Jones Day.<\/em><\/p>\n\n\n\n

Dominic Carlsen<\/strong> is an experienced in-house legal counsel within the oil and gas sector, specialising in claims management and all forms of dispute resolution. Dominic provides \u2018project counsel\u2019, working closely with major project teams to provide strategic advice on contractual and risk-related issues as they arise.<\/p>\n\n\n\n

Jack McNally<\/strong> is international lawyer and researcher specialising in international arbitration and cross-border disputes, international trade and investment law, public international law and private international law.<\/p>\n\n\n\n

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*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.<\/em><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

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