CLIENT ADVISORY MEMORANDUM
Subject: Key International Arbitration, ADR and Dispute‑Resolution Developments
For: Corporations, Sovereign Entities, Investors, Legal Counsel, and Risk Advisers
Prepared by: Senior Counsel (with long experience in cross‑border law and arbitration)
OVERVIEW
September 2025 saw several important rulings and developments in arbitration and cross‑border dispute resolution. Key trends include: enforcement of arbitral awards against sovereign states, refining of recognition/enforcement procedures in insolvency contexts, national courts clarifying enforceability of arbitration agreements even if contracts are unsigned, and institutional developments in ADR cooperation. The cases below are among the most significant for global investors and counsel.
I. Enforcement of ICSID Awards Against a State in a Non‑EU, Non‑Seat Jurisdiction: Blasket Renewable Investments LLC v Kingdom of Spain
A. Facts and Procedural History
On 29 August 2025 the Federal Court of Australia (FCA) delivered judgment in favor of Blasket Renewable Investments LLC, enforcing a set of ICSID awards against the Kingdom of Spain. The awards arose from earlier arbitration under the International Centre for Settlement of Investment Disputes (ICSID) regime, in which investors had challenged Spain’s retrospective reduction of renewable electricity tariffs under the Energy Charter Treaty (ECT). The combined value of the awards was approximately €470 million. The investor sought recognition and enforcement in Australia. (ciarb.net.au)
Spain raised arguments based on sovereign immunity, challenges to the validity of assignments of the awards, and incompatibility with EU law (given that Spain is an EU Member State). The court rejected all of those objections and held that the ICSID Convention’s obligations required recognition and enforcement in Australia. It concluded that the ICSID framework, once invoked, must be respected by contracting states, regardless of domestic or regional legal developments. (ciarb.net.au)
B. Legal Reasoning and Holding
The FCA held that:
- Spain, by virtue of ratifying the ICSID Convention, waived immunity from recognition and enforcement actions under the Convention in Australia. (ciarb.net.au)
- The court’s role was limited to verifying the existence of a valid, certified award; it was not permitted to re‑examine the merits of the arbitration or to impose substantive judicial review inconsistent with the ICSID regime. (ciarb.net.au)
- Assignment of the awards from the original claimants to Blasket was compatible with Australian domestic law; the assignee was treated as a valid bearer of the right to enforce the award. (ciarb.net.au)
C. Significance and Implications for Clients
This is a landmark reinforcement that ICSID awards remain enforceable globally, even in jurisdictions far from the seat or respondent’s home state.
For investors holding treaty-based awards, especially against EU states, this judgment demonstrates the practical value of third‑party enforcement jurisdictions. Australia, as a non‑EU, non‑seat state, may serve as a viable forum when direct enforcement in Europe is complicated by EU‑law issues or state resistance.
For sovereign states, the decision underscores that treaty obligations under ICSID can impose long‑term exposure across multiple jurisdictions. Regulatory or policy shifts that trigger arbitration must be evaluated against global enforcement risks.
D. Risks and Considerations
Enforcement remains subject to discovery of state assets in enforceable jurisdictions. Even after recognition, actual execution may be obstructed politically or practically. States may resort to asset relocation or commingling to frustrate enforcement.
Investors should anticipate extended enforcement proceedings, potentially involving multiple jurisdictions, asset tracing, and cross‑border litigation or collection strategies.
II. French Court Clarifies Enforcement of Arbitral Awards Against Insolvent Debtors: Astaris v Georgian Roads Department (Paris Court of Appeal, 9 September 2025)
A. Facts and Procedural History
An Italian construction company, Astaris, was undergoing insolvency proceedings (concordato preventivo) in Italy. A dispute arose with the Georgian Roads Department (a state or state‑owned body) under a highway construction contract. An ICC tribunal had issued an arbitral award in favor of Astaris.
Astaris sought annulment of the award before the Court of Appeal of Paris, arguing that enforcing the award would violate the principle of equality among creditors under the Italian insolvency proceedings, thus constituting a breach of international public policy. (Mondaq)
On 9 September 2025 the Court rejected this claim. It held that the determination of payment modalities under insolvency law is distinct from the validity of the award itself, which remains enforceable. The Court found no manifest conflict with French international public policy. (Mondaq)
B. Legal Reasoning and Holding
The Court considered that the arbitral tribunal’s mandate concerns the merits of the dispute and not the procedural or domestic insolvency framework of the debtor. The insolvency laws of the debtor’s home jurisdiction govern the modality of payment, not the tribunal. Therefore, enforcement is not barred merely because the debtor is insolvent. (Mondaq)
C. Significance and Implications for Clients
This decision reaffirms that insolvency of a debtor does not automatically prevent enforcement of foreign arbitral awards. For creditors and award‑holders, this is a strong signal that insolvency proceedings are unlikely to nullify their rights under arbitration.
For companies contracting with state‑linked or state‑owned counterparties in projects, the risk of delayed or partial payment due to state insolvency or restructuring cannot be used as a shield against enforcement.
Legal counsel can advise clients with greater confidence that award enforcement remains viable even in complex debtor insolvency scenarios.
D. Risks and Considerations
While enforcement is permitted, actual recovery may still be delayed or partial. Insolvent debtors may have limited assets, or be subject to claims by multiple creditors, reducing the practical value of an award. Creditors should assess the debtor’s asset position and engage early in asset‑tracing or security strategies.
III. Indian Supreme Court Upholds Arbitration Agreement Despite Lack of Formal Signature: Glencore International AG v. M/s. Shree Ganesh Metals & Another (25 August 2025)
A. Facts and Procedural History
In a commercial dispute involving an international sales contract, the buyer attempted to avoid arbitration by arguing that the underlying contract was unsigned and therefore no valid arbitration agreement existed under the Indian Arbitration Act.
On 25 August 2025 the Supreme Court of India held that even where a contract is unsigned, an arbitration agreement may still be binding so long as the parties’ conduct and context demonstrate sufficient agreement to arbitrate. The Court applied principles under section 7 of the Arbitration Act to confirm validity of the agreement for international arbitration. (dentonslinklegal.com)
B. Legal Reasoning and Holding
The Court recognized that insisting on formal signature for international arbitration agreements would be contrary to the pro‑arbitration and facilitative objectives of the Arbitration Act and India’s obligations under the New York Convention. It held that other evidence — intent, performance, communications, ratifications — may suffice to demonstrate an arbitration agreement in writing. (dentonslinklegal.com)
C. Significance and Implications for Clients
This ruling strengthens arbitration as a viable dispute resolution mechanism in India, even in the absence of formal signatures. For multinational contracts — especially where parties are located in different jurisdictions — it reduces the risk that an unsigned agreement will be invalidated.
Investors, traders, and corporations entering into cross‑border agreements should be comforted that arbitration clauses may remain enforceable even under imperfect contract execution circumstances.
For parties resisting arbitration, this decision raises the bar for objections based purely on formalities.
D. Risks and Considerations
Parties must still ensure clarity in communications and conduct consistent with agreement to arbitrate. Evidence of intent, consistent performance or ratification will be critical. In disputes with tight evidentiary margins, parties should anticipate challenges on formality grounds, although success is now less likely after this ruling.
IV. Institutional ADR Cooperation: Signature of Cooperation Agreement between Forum for International Conciliation and Arbitration (FICA) and Indonesia Dispute Board (IDB) (16 September 2025)
A. Background and Event
On 16 September 2025 in Brussels, FICA and IDB executed a cooperation agreement to enhance cross‑border dispute resolution mechanisms in infrastructure and construction projects across jurisdictions. The agreement aims to harmonize mediation, arbitration and dispute‑board procedures, allowing for coordinated use of ADR in international contracts. (fica-disputeresolution.com)
B. Significance
The agreement represents growing institutional collaboration aimed at reducing dispute resolution costs and improving enforceability and reliability of ADR mechanisms. For cross‑border infrastructure and construction contracts — especially in emerging markets, such frameworks may offer faster, more flexible dispute resolution and reduce reliance on traditional litigation or arbitration alone.
C. Client Implications and Strategic Opportunity
Parties engaged in infrastructure, energy, construction, or long-term multi‑jurisdictional projects may benefit from incorporating ADR‑board clauses or mediation/arbitration hybrid clauses under the new cooperation framework.
Investors or contractors operating across Southeast Asia and beyond should monitor the implementation of the FICA‑IDB cooperation to leverage new ADR pathways, potentially reducing exposure to high-cost, high‑delay international arbitration.
D. Risks and Considerations
As with any new framework, the practical effectiveness depends on implementation, acceptance by local courts or authorities, and enforceability of ADR‑board decisions. Parties should carefully draft contracts to ensure clarity on governance, applicable rules, enforceability, and fallback to arbitration or litigation when needed.
V. Broader Trends Observed in September 2025
- Global enforceability of investment arbitration awards continues to strengthen, even against sovereign states, through third‑country courts (Australia) and foreign creditors.
- National courts are reducing reliance on formalities (such as contract signatures) and adopting a pro‑arbitration bias, particularly for international commerce.
- Insolvency or debtor‑insolvency status is increasingly treated as a domestic/ procedural matter, not a ground to invalidate or refuse enforcement of international arbitral awards.
- Institutional ADR cooperation is gaining momentum, offering additional dispute‑resolution alternatives for large infrastructure and cross‑border deals.
VI. Strategic Recommendations for Clients and Counsel
- For Investors and Creditors
- Where possible, anticipate enforcement challenges in multiple jurisdictions. Diversify enforcement venues beyond seat or home states, consider non‑seat, third‑country jurisdictions with creditor‑friendly regimes (e.g. Australia).
- In cross‑border contracts, ensure arbitration clauses are clearly documented; but also appreciate that even informal or unsigned contracts may suffice under favourable jurisdictions (e.g. India).
- For Companies Contracting with Potentially Insolvent Counterparties
- Don’t assume insolvency protects debtors from award enforcement. Use enforceable arbitration and legal documentation to secure claims.
- Consider incorporating security, guarantees or escrow mechanisms to support recoverability.
- For Projects in Infrastructure / Construction / Energy in Emerging Markets
- Consider including ADR‑board or mediation/arbitration hybrid clauses, particularly in jurisdictions where institutional cooperation (e.g. FICA‑IDB) is being developed.
- Factor dispute‑resolution structure and enforcement strategy into contract negotiation and risk assessment.
- For Legal Advisors and Arbitrators
- Advocate for clear, streamlined arbitration agreements. Counsel clients in maintaining documentary evidence of agreement, even where execution formalities lag.
- Monitor and adapt to evolving ADR frameworks and third‑jurisdiction enforcement trends when advising on structuring investments or negotiating with sovereign or state‑linked entities.
VII. Conclusion
September 2025 confirms that international arbitration and ADR remain robust and adaptative tools for cross‑border dispute resolution. Key developments reinforce enforceability of awards, even against sovereign debtors or insolvent parties, and limit invalidation on formalistic grounds. At the same time, the growing institutionalisation of ADR cooperation suggests an expanding ecosystem beyond traditional arbitration and litigation.
For investors, corporates, and states, the month underscores the importance of strategic planning, from contract drafting to enforcement strategy. For counsel and risk advisers, the landscape demands agility, foresight, and careful structuring of dispute‑resolution and enforcement plans.
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