Australian Arbitration Week 2024

This article was co-authored with Besma Grifat-Spackman and Victoria Thomson.

Australian Arbitration Week took place between 13 – 18 October 2024 in Brisbane. Norton Rose Fulbright was pleased to host two panel discussions that showcased global trends in arbitration, and the legal and practical issues currently faced by arbitration practitioners in Australia. In this update, our team canvas some key takeaways from the events held during Australian Arbitration Week.

Throughout the week, topical concerns such as the future of AI, the energy transition and sustainability were discussed. A panel discussion titled ‘Powering tomorrow: challenges and solutions for the energy transition’ highlighted the challenges faced by companies at the forefront of the energy transition. Another event, ‘Energy transition and climate disputes’, considered difficulties arising from sustainability disclosure obligations around infrastructure projects, related delays and impacts on costs.

Norton Rose Fulbright held an event titled ‘Hot cakes and hot takes: trends and developments in Asia’s energy sector’. The panel, moderated by Dylan McKimmie and including Katie Chung and Ananya Mitra, considered the status of conventional energy disputes and how arbitration is playing an increasingly valuable role in this space, particularly in relation to LNG price reviews. Key takeaways from the panel discussion included:

• Upstream oil and gas activities and decommissioning disputes are expected to increase.
• Environmental and cultural protection disputes are on the rise.
• An anticipated rise in disputes is one reason for energy companies to act proactively, rather than reactively, to manage these risks.

At another event held by Norton Rose Fulbright, ‘Once BIT-en, twice shy: managing political risks and optimising value in foreign investments during turbulent times’, a panel moderated by Besma Grifat-Spackman and including Jo Feldman provided insights into the issues investors must be aware of when investing in a foreign country. Key takeaways included:

• A good due diligence exercise at the outset of an investment is essential, and so is setting out alternative plans in the event the investment becomes threatened.
• Investment treaty planning is key to ensuring optimal treaty protection, which can offer leverage and legal recourse in the event an investment is threatened or adversely affected.
• Contractual provisions, such as stabilisation clauses, waivers of sovereign immunities, governing law and arbitration agreements can play an important role in managing risk and optimising value.
• Political risk insurance, where available and feasible, offers another risk management and mitigation tool to complement investment treaty protection.

A panel on ‘Global trends and developments in international arbitration’, hosted by Level Twenty Seven Chambers, provided insights into the recently amended IBA Guidelines on Conflicts of Interest in International Arbitration, discussed the impact of sanctions on international arbitration (drawing on recent UK decisions), and Tamlyn Mills considered recent cases on the enforcement of investor-State awards in Australia, the United States and the United Kingdom.

Discussion around the recently amended IBA Guidelines also featured during an event organised by Resolution Institute and hosted by Norton Rose Fulbright, titled ‘Choosing, schmoozing, recusing and losing arbitrators’. Key takeaways from this event involving Tamlyn Mills and Daniel Allman included:

• The importance for parties to undertake their own due diligence to identify potential conflicts of interest and raise them at the earliest opportunity.
• Difficulties may arise from ‘schmoozing’, i.e. communications, entertainment or personal relationships that create a risk of real or perceived conflicts of interest for arbitrators.
• Examples of applications for recusal or challenges to awards on the basis of bias continue and outcomes can be difficult to predict.
• Arbitral tribunals must be careful to clearly demarcate the issues to be determined when bifurcating proceedings, particularly where issues of liability and quantum may be intertwined.

Finally, multicultural ethics was the topic of discussion at the annual lecture of the Chartered Institute of Arbitrators (Ciarb) Australia, which was also hosted by Norton Rose Fulbright. Jo Feldman introduced this year’s address by Walter Sofronoff KC, who considered whether inconsistent ethical rules across jurisdictions can produce an unfair advantage in arbitrations involving lawyers from different countries.

We thank those of you who attended these events and look forward to seeing many of you again next year, in Sydney for the 2025 Australian Arbitration Week, which will mark the 40th anniversary of the Australian Centre for International Commercial Arbitration.