From the Managing Partner's desk
When the international order weakens, complex disputes flow to the jurisdictions that remain stable, predictable and properly equipped. After two weeks across Madrid, London and Guangzhou and roughly fifty meetings with practitioners on three continents, I am more convinced than ever that Australia is one of those jurisdictions. This piece sets out what each leg of the trip suggested, the macro forces driving disputes work today, and the practical tools Australian courts now offer foreign counsel, in-house teams and investors with Australian-side exposure.
Key Takeaways
- The rules-based order is fraying. Force majeure (contractual relief from unforeseen events), sanctions, anti-suit injunctions and AI in the courts are reshaping commercial disputes work and English authority on these issues remains persuasive in Australian courts.
- Australia is increasingly a destination jurisdiction. We have the courts, the toolkit (freezing, search and discovery orders in support of foreign proceedings) and the asset pool that make cross-border resolution and enforcement practical.
- FIRB refusal at the application stage is a live risk. The Cosette / Mayne Pharma sequence is the cautionary tale of 2025 and shifts what foreign bidders in sensitive sectors must plan for.
- Arbitration into an Australian-enforceable forum is a reliable path for Chinese, Asian, US, European and Middle Eastern counterparties. Court judgments – including Mainland Chinese ones can be enforceable in Australia.
Madrid: the macro forces
The IBA Litigation Committee’s annual conference drew about 420 delegates from sixteen jurisdictions. The tone was set early by the immediate past president of the IBA, who described our profession as “merchants of trust” a phrase that has stuck with me. The thread running through almost every panel was the same. When institutions weaken, law becomes the last instrument of stability. That sounds grand. The work that flows from it is not.
A few specific takeaways are worth flagging.
Force majeure is back.
Wars and sharp price movements push parties to look for ways out of contracts, and they reach for force majeure first. The English Supreme Court’s decision in RTI Ltd v MUR Shipping BV [2024] UKSC 18 was discussed at length on the war and global stability panel. It is now the leading authority on whether a reasonable-endeavours obligation can require a party affected by force majeure to accept non-contractual performance. The Court said no. A shipowner served with sanctioned-counterparty risk did not have to accept payment in euros instead of US dollars, even where commercially that would have made no real difference. The decision favours certainty over pragmatism. On the right facts, sanctions, currency restrictions, change-of-circumstance arguments, it can decide a case. Australian-law contracts often borrow English drafting, and English authority of this calibre is persuasive in our courts.
Sanctions are now “the third man in the room.”
That phrase came from a US colleague describing the long-running Venezuelan creditor litigation, where some clients have spent fifteen years pursuing recovery only to be overtaken by sanctions designed to protect the very assets they are chasing. Sanctions reprice time. They reprice uncertainty. They also push enforcement work into jurisdictions where designation regimes are clear and assets are reachable. From an Australian perspective, the point is straightforward. When counterparties find themselves blocked at home, they look for assets and enforcement routes elsewhere. Australia, with a substantial pool of state and private commercial assets, is one of the obvious places to look.
Anti-suit and anti-enforcement injunctions are evolving.
English colleagues described how Russian courts now routinely ignore English anti-suit injunctions, which has driven a rise in anti-enforcement injunctions orders preventing a party from enforcing a foreign judgment elsewhere. These tools have parallels in Australia.
AI in the courts is closer than people think.
A senior Chinese lawyer on one panel described AI-assisted adjudication platforms already operating in Beijing, Shanghai, Shenzhen and Guangzhou saving 20 to 40 per cent of judicial time on standard cases. China’s Supreme People’s Court has issued guidelines on AI use in the judiciary; judges remain responsible for the decision and must record any AI involvement. Australia and the Commonwealth jurisdictions are some ways behind on this, and probably should be. But the direction of travel is clear, and corporate parties looking to compress dispute-resolution cost will push faster than governments will.
London: the toolkit
In London I met with many of my counterparts in disputes – litigation and arbitration, insolvency and restructuring. The work areas overlap heavily with our own: civil fraud, asset recovery, insolvency-driven litigation, multi-claimant proceedings and regulatory work.
A few practical points stood out.
First, how aggressively the English courts have moved on crypto-related fraud. The English bench has treated crypto as a species of property, allowed service by NFT, granted disclosure orders against persons unknown, and in one matter ordered an exchange to undertake something which was described to be as ‘a counter-hack against a thief’s wallet’. The judiciary’s willingness to engage creatively with new asset classes is striking. Australian courts have been less audacious, but I think will follow. We have already issued worldwide freezing orders and Norwich Pharmacal-style discovery orders to trace into crypto wallets. The precedent base is growing.
Secondly, the enduring usefulness of the worldwide freezing order as the opening move in cross-border fraud. English courts will grant standalone freezing orders in aid of foreign proceedings, meaning the substantive litigation can run in another jurisdiction while England preserves the assets. Australia has the same toolkit.
Thirdly, a cultural point. Several of the firms I met operate as boutique disputes practices, free from the conflicts that come with full-service work. That is the model Ironbridge Legal has chosen too, and it is increasingly the model that institutional clients prefer for high-stakes matters. The conflicts position alone is often decisive.
Guangzhou: where the work lands
Guangzhou was the last leg. The city has cultivated itself for forty years as the world’s manufacturing hub. The volume of trade and investment between Guangdong and Australia is substantial: total two-way Australia-China trade sits at around AUD 309 billion, and roughly two-thirds of Chinese inward and outward foreign direct investment passes through Hong Kong, with Australia among the top destinations.
I gave a presentation to several Chinese law firms focused on two structural issues any Chinese investor or counterparty needs to understand about Australia.
FIRB: the Cosette / Mayne Pharma warning
The Foreign Investment Review Board reviews significant foreign acquisitions against the national interest. For most material transactions, FIRB approval is required before completion. The recent Cosette Pharmaceuticals / Mayne Pharma matter is the cautionary tale of the year, and one we walked the room through in detail.
In February 2025, Cosette agreed to acquire ASX-listed Mayne Pharma for AUD 672 million by way of a scheme of arrangement. FIRB approval was a condition precedent. Cosette lodged its application on 25 February 2025. Just under three months later, on 17 May 2025 and only two days after the first court hearing at which it had supported the scheme, Cosette served a Material Adverse Change notice and tried to walk away. The two grounds were Mayne’s Q3 FY25 sales underperformance against an internal earnings forecast, and an “untitled letter” from the US FDA dated 28 April 2025 concerning promotional claims for Mayne’s oral contraceptive Nextstellis. Subsequent termination notices added alleged breaches of warranty around due-diligence materials, continuous-disclosure failures, and misleading and deceptive conduct.
Mayne sued in the NSW Supreme Court. On 15 October 2025, Justice Black handed down a 200-page judgment in Mayne Pharma Group Limited [2025] NSWSC 1204. The Court found that the Q3 EBITDA shortfall was AUD 8.618 million, short of the contractually agreed MAC threshold of AUD 10.76 million that the FDA letter did not by itself or in combination meet the threshold, and that Cosette had in any event affirmed the contract by entering an amended SID, executing the scheme deed poll, and participating in the first court hearing without reservation. Every termination ground failed.
What happened next is the part of the story most worth flagging for foreign investors. After losing on MAC, Cosette signalled to Treasury that it might dispose of or close Mayne’s Salisbury manufacturing facility in South Australia – one plant, about 200 jobs, recently modernised. That was a sharp departure from the intentions Cosette had originally disclosed in the Scheme Booklet and in the FIRB application itself, which spoke of continuing Mayne’s operations “largely in the same manner” and retaining its employees. On 19 November 2025 the Takeovers Panel made a declaration of unacceptable circumstances and ordered Cosette to accept any FIRB conditions reasonably required by the Treasurer in connection with the Salisbury site, “including conditions reasonably restraining its closure.” Two days later, on 21 November 2025, the Treasurer refused the FIRB application outright, on the basis that no conditions could adequately mitigate the national-interest risks to the supply of critical medicines, local jobs, and Australia’s pharmaceutical manufacturing capability.
A few points worth pulling out for clients.
First, this was a refusal of the original FIRB application, not a revocation of an existing approval. FIRB approval had never been granted. Foreign bidders need to plan for refusal at the application stage in sensitive sectors – pharmaceuticals, critical minerals, agriculture, data infrastructure, defence-adjacent technology – not just for compliance after the fact.
Secondly, what a foreign bidder says in its FIRB submissions and in scheme documents about its post-completion intentions can be held against it. Cosette’s pivot on Salisbury was, on the face of the public record, the trigger that turned an approvable transaction into one the Treasurer felt could not be saved by conditions. The Takeovers Panel intervention is a useful new precedent for Australian targets – bidders can now expect to be held to their stated intentions through the regulatory process, not just under the Scheme Implementation Deed.
Thirdly, the consequences of getting FIRB wrong are serious. Civil penalties run up to AUD 825 million, and criminal penalties up to ten years. Engaging Australian-admitted advisers from the outset, and managing the regulator-facing narrative carefully, is not optional. It is essential.
The deal is dead. The litigation is not a separate dispute over break fees and damages.
Enforcement: arbitral awards yes, court judgments different
The second issue we covered was enforcement. The news for Chinese counterparties, and others, is good and workable.
Arbitral awards from CIETAC, HKIAC, ICC, SIAC and the like are enforceable in the Federal Court of Australia under the International Arbitration Act 1974 (Cth), which gives effect to the New York Convention. Both China and Hong Kong are signatories. Beyond the narrow Article V grounds, Australian courts have very limited residual discretion to refuse enforcement.
For ICSID awards against States, the leading authority is the High Court of Australia’s 2023 decision in Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. [2023] HCA 11. The High Court held unanimously that Spain’s entry into the ICSID Convention amounted to a waiver of foreign-state immunity from the recognition and enforcement of ICSID awards under the Foreign States Immunities Act 1985 (Cth). State immunity from execution against assets under Article 55 of the ICSID Convention is preserved, which means a creditor still needs to identify commercial property to execute against. The decision has since been followed by the English High Court and Court of Appeal, the latter describing the High Court of Australia’s reasoning as “plainly right.” For investors holding ICSID awards against States with assets in Australia and there are many the Kingdom of Spain line of authority is now the standard playbook.
Mainland Chinese court judgments are a different matter. There is no bilateral treaty for reciprocal enforcement. But Australian common law will recognise a final and binding Chinese judgment for a fixed sum of money against identified parties, subject to the usual conditions. For Chinese counterparties, however, the practical message is the one any cross-border lawyer would give. Build an arbitration clause into the contract. The path from a CIETAC or HKIAC award to Australian enforcement is significantly shorter than the path from a Chinese court judgment to Australian recognition.
Australia as an interim-relief jurisdiction
What also drew interest from the Chinese firms was the suite of interim relief that Australian courts will grant in support of foreign proceedings: freezing orders, search orders and discovery orders. Where assets are at risk of dissipation, or where a Chinese party has identified an Australian-based defendant or asset, Australian courts can move quickly. That is genuinely valuable, and most foreign counsel underuse it.
Why it lands in Australia
There is a thread running through all of this. Whether the issue is a sanctioned counterparty, a vanished crypto wallet, a state-owned debtor with assets onshore, an investor whose FIRB approval is in trouble, or a maritime dispute arising from disrupted shipping in the Strait of Hormuz or the South China Sea, the practical question is the same. Where can the dispute be resolved? Where can the award or judgment be enforced? Whose courts will move quickly enough to preserve the position?
Australia answers those questions well. We have a strong common-law system, a small but world-class commercial bar and bench, broad statutory powers to support foreign proceedings, accession to the New York Convention and the ICSID Convention, a leading-edge insolvency regime, and for inbound Chinese, Asian, US, European and Middle Eastern work – a meaningful pool of assets sitting on our shores. We also have the unfashionable virtue of stability. In a fragmenting world, that matters more than it used to.
In a fragmenting world, stability is no longer a soft virtue. It is a competitive advantage.
Ironbridge Legal’s positioning has been consistent with that picture for some time. We are a disputes-only firm. We act for institutional clients, liquidators, foreign investors, and overseas firms whose clients have an Australian dimension to their problem. The trip has confirmed that the demand for that profile is growing, not shrinking.
If you have a matter with an Australian dimension, I would welcome a confidential initial conversation. I lead Ironbridge Legal’s commercial disputes and cross-border enforcement practice and can be reached at trevor.withane@ironbridgelegal.com.au. For the chapter-length treatment of foreign-judgment and arbitral-award enforcement in Australia, see my latest chapter in Lexology Panoramic: Foreign Judgments Enforcement.
