“The Vis Moot in Japan: Tips and Tricks for Participants”

This hybrid-format 14 February 2024 seminar in Tokyo was planned primarily by the “Japan Arbitration Club” formed recently among younger arbitration experts and afficionados, led by Carlotta Bruessel (now with Nishimura & Asahi, Japan’s largest law firm, and previously working in Canberra and Sydney) who also moderated this seminar. My co-panellists included Eriko Kadota, now a managing associate in Tokyo with Linklaters (which co-sponsored the seminar and provided the venue) who competed successfully for ANJeL’s “Team Australia” in the intercollegiate negotiation and arbitration moot competition (INC) while a student at Sydney Law School. Other event supporters were the Australian Network for Japanese Law (ANJeL), the International Chamber of Commerce’s Young Arbitration and ADR Forum (ICC-YAAF, as this year’s Vis Moot applies the ICC Arbitration Rules) and the Moot Alumni Association for the Vis moot. The latter’s Japan members and others have started coordinating a “pre-moot” competition for Japanese university teams before they go to the main Vis Moot held in Vienna or the spin-off Vis East Moot held in Hong Kong.

The main focus of this seminar was to share experiences and ideas especially for Japanese students and coaches about what to expect in the Vis Moots. However, to that end I added some contrasts with the INC, which has also greatly enhanced interest and skills in arbitration among Japanese and other law students over the last two decades.

My first encounters with the Vis Moot dated back to the late 1990s, when I was joined as associate professor at Kyushu University Law Faculty by Hiroo Sono, who had already attended the Vis Moot and eventually became Dean of the Law School at Hokkaido University. (We also ended up co-authoring in 2019 a Kluwer book on Contract Law in Japan.) I took his prescient advice to attend the Sixth Vis Moot in Vienna as a mock arbitrator around Easter in 1999, as he had done in 1997. Then we ran a small courses for the Japanese-language LLM program and then new English-language LLM/LLD program in Kyushu University to coach a team that competed in the Seventh Vis Moot in Vienna in early 2000. Already there had been one Japanese team, from Meiji Gakuin University (competing in the Fifth and Sixth Vis Moots), but there was very little awareness of the competition around that time – or indeed about arbitration – in Japan. Writing articles in Japanese (in 1186 Jurisuto and 67 Hosei Kenkyu / Journal of Law and Politics, in 2000) with Professor Sono and in English (66 Hosei Kenkyu Part I and Part II in 1999) to promote more interest in the Vis Moot, I speculated that its growth already over the 1990s was linked partly to states starting to accede to the UN Sales Convention (CISG, agreed in 1980 and in force from 1988). It was even clearer that the numbers of teams per country were rising, generating critical mass and even by then creating scope for “pre-moots” before the main competition in Vienna – as seen from this Figure 1 reproduced Part II of my 1999 article in Hosei Kenkyu:

Japan acceded in 2008 (as explained in his JJL article here), thanks significantly to the efforts of Professor Sono who was seconded around then to the Ministry of Justice from Hokkaido University to promote understanding and engagement with CISG. This has made the UN Sales Convention directly relevant for Japanese traders and their legal advisors, who also need to assist Japanese subsidiaries and affiliates especially in Asian states that are also increasingly member states of CISG. Another contemporaneous development has been the comparatively belated but (especially since 2017) significantly greater interest in international arbitration among stakeholders in Japan (including now some very large local law firms, as well as branches of Western firms that were allowed full profit-sharing partnerships with Japanese bengoshi lawyers from 2004). This evolving context helps explain why by the 30th Vis Moot in Vienna held in 2023, there were four teams from Japanese universities (out of by then 380 teams in total): Doshisha, Kwansei Gakuin, Waseda and Seinan Gakuin. And for the 20th Vis East Moot in 2023, for example, Nagoya University reached the final eight teams.

These are impressive achievements for teams coming from a country where the native language is not English (the language of the Vis Moots), which helps Australian and other university teams; and not even a Western language, which helps continental European and other teams that have also been frequent and often very successful competitors as well. A further challenge for Japanese teams has been that traditionally the law schools from common law jurisdictions put more emphasis on mooting generally, to build up the oral advocacy skills needed for the court cases that drove the development of the common law. (Already in 1999 I was impressed by the enthusiasm and skills of a team from an Indian law schools, which are also now often top performers in both Vienna and Hong Kong moots.) However, more opportunities for mooting and oral argumentation have grown also within the civil law tradition countries, including Japan – perhaps linked to its postgraduate Law School program inaugurated from 2004, which (with some difficulties) has expanded the numbers and skills of bengoshi lawyers. This gradual transformation in Japanese legal education more generally is arguably also reflected in the growing popularity and skill levels associated with the INC moot held in Tokyo towards the end of each year since 2002.

However, the INC moot differs in several ways from the Vis Moot, so the latter creates extra challenges for Japanese university teams – most of which compete now in both competitions. First, INC has a division or track where (sub)teams compete in Japanese, not just in English, and indeed the aggregate score for each university is reduced if competing only in one of the two languages. More preparations – in research, writing memorandums and the crucial practice moots – can therefore be done in Japanese as a native language. Japanese university teams competing only in English in the Vis Moots therefore need to factor in extra time and confidence-building exercises, perhaps involving more English-speakers as team members and coaches.

Secondly, the INC applies the UNIDROIT Principles of International Commercial Coontracts (first issued in 2004). Although their provisions overlap with CISG considerably, as later and opt-in rules of law (that parties must actively adopt), the UNIDROIT Principles can be more ambitious in their scope. They include provisions, say on regulating contractual unfairness, or allowing for adjustment of contracts in the event of supervening hardship, that are mostly left out of CISG for the applicable national law. The UNIDROIT Principles additionally apply to more complex (services and other) contracts than the international sale of goods, allowing for more arguments emphasising good faith and cooperation among the contracting parties than under CISG. In addition, the UNIDROIT as a restatement of the lex mercatoria are still not accepted by courts in many jurisdictions as governing law even if agreed upon by the parties for their cross-border contracts, unless combined with an international arbitration clause. And because arbitration is mostly confidential, whereas court litigation is mostly public, this means there is now much more publically-available case law on CISG from national courts around the world (and therefore related commentary) than on the UNIDROIT Principles as applied by arbitral tribunals.

The result of these differences is that arguments on contract law applying CISG in the Vis Moot tend to be more neo-classical and based on formal reasoning centred on the parties’ agreement and language used. By contrast, the arguments applying the UNIDROIT Principles in the INC moot can be more open-textured, appealing to wider contextual (moral, economic and other) considerations, although over the last decade or so these arguments have also become more formalised.

Thirdly, the INC is a one-shot competition. Each university only argues once in the arbitration round (and indeed only for one side, as assigned randomly by the organisers), even if the university fields multiple sub-teams competing in parallel. By contrast, the Vis Moot envisages that the higher-scoring teams can progress through to Finals, over many days of mock arbitration hearings. This also makes that competition more amenable to detailed and therefore more formal-reasoning arguments by the teams.

Fourthly, the INC traditionally did not address arbitration law problems, whereas those are often at least as important in the Vis Moot as the contract law problems. Recently, the INC incorporate some arbitration law questions in that round, but a key difference remains that the second day of the INC competition is a mock commercial negotiation seeking to reach agreement on a complex international joint venture. The skills required for successful negotiation, such as asking open-ended questions to try to understand the other side’s underlying interests, are often quite different that the more adversarial advocacy skills expected in international arbitration. Developing the latter is another challenge for Japanese university teams, even if students or coaches have become familiar with the INC moot.

Overall, the Vis Moot is designed to run as a quite formalised procedure, and has become more so as the numbers of teams competing in that competition has continued to grow. (This is true even of the Vis Moot East event, which I attended also in its earlier years when it was still smaller and therefore more like the Vienna moot over the 1990s.) This reflects the fact that the Vis Moots (in Vienna and to a growing extent also in Hong Kong) are also now a premier competition for students, coaches and mock arbitrators to network in order to enhance opportunities to actually practice international arbitration. There has also been resurgent formalisation of international arbitration over the last 10-15 years, including burgeoning costs and delays. Accordingly, Japanese participants in the Vis Moots should not be surprised to find that competition to be more rule-bound and intense even compared to moots like the INC.

Lastly, I share with you some excellent practical tips especially on oral advocacy for the Vis Moot (but also useful for the INC moot), from my colleague Prof Chester Brown. He has been lead coach for the University of Sydney Law School team that has competed very successfully in Vienna for around the last 15 years:

  1. Present clear and simplified arguments
  2. Signpost them (eg “We have three points …[but due to time the main focus will be on … unless the tribunal has particular interest in …]”)
  3. If “respondent” on issues, respond to points made by claimants rather than reverting to written submissions
  4. identify for the tribunal where parties agree or disagree (eg on the legal test)
  5. use evidentiary record and precisely
  6. remember points given for teamwork (eg for keeping to time)
  7. remember one’s own timekeeping (eg if arbitrator questions a lot on an early issue, be ready to present on the second issue in say 1-2 not 6-7 minutes (& then ask for extra minute for both sides).

ANJeL “Team Australia” 2nd again in INC Negotiation & Arbitration Moot!

Congratulations to University of Sydney Law School LLB and JD students Michelle Chen Daniel Hu, Kim Nguyen and Sean Yalcinkaya. They combined with other students mostly from ANU to form “Team Australia”, which again came second in the INC negotiation  and arbitration competition held over 9-10 December 2023 in Japan (this time pipped by UTokyo, with KyotoU coming third).

Importantly and deservedly, Team Australia won the ANJeL-sponsored prize for best (marks in) Teamwork. That was particularly impressive as the students have to cooperate cross-institutionally, and focus on moot preparations over the tense exam period. The students were also able to have a special tour of the apex Supreme Court, helped by ANJeL’s longstanding support for judicial visitors from Japan.

Special thanks to the lead coach and ANU law lecturer, James C. Fisher (and in past years Profs Kent Anderson and Veronica L. Taylor, ANJeL Advisors) as well as CAPLUS affiliate Nobumichi Teramura and Inma Conde for practice arbitrations. We are also grateful for support from DFAT (New Colombo Plan scholarships), Dean Simon Bronitt, Mitsui Matsushima and many past Moot alumni – including Ben Hines  and Irene Ma (both in the 2022 Team that also came second) and Eriko Kadota (now with Linklaters in Tokyo). For more details about this and past Teams see here.

Arbitration and Sports Law (Baseball) Dispute Resolution in Australia and Japan

As part of the Japanaroo suite of events, ANJeL is delighted to coordinate at Sydney Law School the two free public seminars below, both including a strong comparative focus on Japan and Australia, and involving a former Chief Justice of Victoria. One on Thursday 21 September compares arbitration’s historical trajectory (hybrid-format seminar, including two ANJeL program convenors based abroad – register via https://law-events.sydney.edu.au/events/intarbitrationaujp). The second on Friday 22 September compares sports law and dispute resolution (generally and with baseball as a major case study; in-person only, chaired by another ANJeL convenor Micah Burch – register via https://law-events.sydney.edu.au/events/globalsports-767).

1. Comparative History of International Arbitration: Australia, Japan and Beyond

This hybrid-format webinar compares the historical trajectory of international arbitration law and practice in Australia and Japan in regional and global contexts. An aim is to explore the evolving images and contours of arbitration and scope for cross-border collaboration in promoting this popular but sometimes contested form of dispute resolution.

Speakers

Commentator: Prof Luke Nottage (University of Sydney)(Drawing on the concluding chapter in his 2021 book: https://japaneselaw.sydney.edu.au/2020/08/book-in-press-with-elgar/ and his Encyclopedia entry on ACICA (with Prof Richard Garnett) at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4431276 )

Thursday 21 September

Time: 4-5.30pm

Location: The University of Sydney, Common Room, Level 4, New Law Building (F10), Eastern Avenue, Camperdown

Cost: Free, but registration is essential. Please select your attendance type during registration.

CPD points: 1.5 points

This event is being held an online and in-person at Sydney Law School. Please indicate your viewing preference when registering.

This event is proudly co-presented by the Centre for Asian and Pacific Law, the Resolution Institute and the Australian Network for Japanese Law at the University of Sydney Law School.

2. 2nd Annual Global Sports Law Symposium: Dispute Resolution

In-person event

This symposium brings together luminary experts and practitioners in sports law to discuss dispute resolution in the world of sports (it follows on from ANJeL’s seminar on international arbitration). The symposium’s first panel will feature two giants of the Australian sports law world reflecting on their careers in jurisprudence and sports administration resolving disputes in the sports area. The second panel will be a case study focusing on dispute resolution in baseball with two experts on both Japanese and Australian baseball.

About the Speakers

A. Dispute Resolution in Sports: Expert Reflections

Professor Deborah Healey (University of New South Wales)

Deborah Healey is the Director of the Herbert Smith Freehills China International Business and Economic Law (CIBEL) Centre and the Editor of the Sports Law Journal. She has more than 30 years of experience serving on the boards of major sports governance organizations and serves on the National Sports Tribunal.

Professor the Hon Marilyn Warren AC KC (Monash University)

Marilyn Warren is a Vice Chancellor’s Professorial Fellow of Monash University and is the former Chief Justice of Victoria. She practices as a commercial arbitrator and teaches law as a Professor at Monash’s Law Faculty.

B. Dispute Resolution in Sports: Baseball Case Study

Mr. Mark Marino (CEO, Baseball NSW)

Mark Marino has been the CEO of Baseball NSW since 2014 and is an Executive Committee Member of the Australian Baseball Players Alumni Association. Mark played collegiate and professional baseball in the United States and was the CEO of the Sydney Blue Sox 2014-2018.

Dr. Matt Nichol (Lecturer, Central Queensland University, (Melbourne))

Matt Nichol is a lecturer and sports law academic at the School of Business and Law at Central Queensland University and a board member of Baseball Victoria. His research uses approaches to labour law and regulatory theory to understand the regulation of labour in professional team sports.

Moderator: Mr. Micah Burch, Senior Lecturer, Sydney Law School.

Hosts: Sydney Law School, Australian Network for Japanese Law, Australia New Zealand Sports Law Association

Date: Friday, 22 September 2023

Time: 4.00-5.30pm

Location: Common Room, Level 4, New Law Building (F10), The University of Sydney

Please follow directional signage on arrival.

CPD Points: 1.5

This event is proudly co-presented by The University of Sydney Law School, the Australian Network for Japanese Law and the Australia New Zealand Sports Law Association.

Vote of thanks for Chief Justice Bell’s launch of “Comparing Online Legal Education” (& Foreword by James Douglas KC)

[From book launch on 3 August 2023]

I am very grateful for NSW Chief Justice Andrew Bell [pictured, above on left] for taking time from his busy schedule to launch this book [video-recording here or via the Sydney Law School podcasts on Youtube]. Perhaps I should have asked instead for such a favour for my next volume just into press, on Corruption and Asian Investment Arbitration, given His Honour’s longstanding shared interest in cross-border dispute resolution. But the Chief Justice also was a valued lecturer for Sydney Law School over many years, and I was struck by the remarks made about online legal education in another book launch following the annual Winterton lecture in the Banco Court a few months ago. Thank you very much for sharing some further ideas and kind words, reminding us of the history of technological developments in the research and teaching of law over our lifetimes, in the context of this volume.

I also acknowledge the Foreword [reproduced below] kindly contributed by former Queensland Supreme Court Justice James Douglas, here today [pictured, 2nd from right] and a longstanding elected member of the International Academy of Comparative Law. I also appreciate that Academy and then Secretary-General Prof Diego Fernández Arroyo for inviting me in early 2020 to become the General Reporter comparing developments world-wide related to online legal education. That became of course a very hot topic due to the COVID-19 pandemic, which unfortunately meant not all nominated national reporters ended up producing chapters for this book. But I think it nonetheless achieved a fairly representative mix of jurisdictions to draw wider comparative conclusions – jurisdictions from common law, civil law and mixed traditions, more or less democratic states, large and small states, developed and developing economies.

I thank all the contributors to this book, especially my co-editor Seijo University Prof Makoto Ibusuki, ANJeL-in-Japan program convenor and frequent visitor to Australia (and many parts of the world). I particularly valued some early zoom discussions over 2020, comparing different challenges and reactions in Australia and Japan. We and this book also benefited from an excellent chapter co-authored by ANJeL Advisor and Newcastle DVC, Prof Kent Anderson here tonight, comparing different “gatekeepers” across jurisdictions that regulate entry to the legal profession: lawyers, governments, universities and the market. The book’s summary general report plus the jurisdictional reports consider how each model, along with other factors such as ICT infrastructure and funding for universities as well as the extent of COVID-19 impact, can influence the trajectories of in-person and then online legal education.

I thank also Rebecca Moffat and the very professional team at Intersentia, which has become the publisher for the book series from the Academy’s four-yearly major comparative law congresses. (I only hope they bring down the price for the e-book version.) I am especially grateful to Intersentia and the Academy for adapting for the book cover an abstract artwork provided by my daughter Erica Kobayashi Nottage of Enso Circulation, finishing off at the National Art School this year, and for the rest of my immediate family for joining us for the book launch.

For hosting tonight, I thank Dean Simon Bronitt [pictured in photo above, right] and Sydney Law School (including its Centre for Asian and Pacific Law, the cross-institutional Australian Network for Japanese Law, and Carla and Ashleigh from our terrific Events Team). Further editorial and research assistance for the book was kindly provided through the University of Wollongong’s Transnational Law and Policy Centre, where I enjoy an honorary affiliation. I am also glad for the support of Assoc Prof Markus Wagner, leading that Centre, and his Dean Trish Mundy kindly co-authored an insightful chapter on online legal education in Australia.

Thank you again for the insightful remarks on launching this book, Chief Justice, and for all my colleagues, family, friends and others who attended to support this event.

***

Book’s Foreword, by the Hon James Douglas KC:

A long time ago I experienced the mixed joys of both undergraduate and postgraduate law lectures and tutorials delivered directly in the classroom among fellow students. In my final undergraduate year in 1973, however, I studied part-time entirely remotely by reading lecture notes with references to the relevant texts and cases. Luckily, I had access to an excellent law library and was the associate of a judge in a final appellate court where there were other such judges with associates who were recent graduates. I could bounce ideas off them and learn from the cases argued before the court. I hate to think what that experience of remote learning would have been like had I not had that environment around me. I admire greatly those lawyers who have successfully educated themselves solely through distance or online education. 

I recognise the advantages that modern technology can provide to remote learning not only through video-conferencing of lectures and tutorials but by direct access to relevant primary materials online. That early experience, however, has biased me in favour of live teaching in a class full of students actually present. As the authors recognise in their introduction, even interactive video-conferencing makes it more difficult for remote students ‘to engage in classroom discussions … where picking up on nuances can be harder than in physical interactions, even for native speakers’. Common experience of video-conferencing outside the academic environment backs up those conclusions. 

There is so much to be learned also in informal discussion with lecturers and other students and from an environment where the social interaction and physical facilities are focused on what you are studying. As the authors say about the experience of online education in Macao, ‘law is rooted in human interactions, benefiting not only from direct student–teacher contact but also from student learning among peers, through classroom teaching but also other personal contacts on campus’. This personal contact is recognised as a continuing advantage particularly in aspects of courses where students need to learn practical or ‘soft’ skills.

The period leading up to the International Academy of Comparative Law’s 2022 Congress in Paraguay coincided with the spread of the COVID-19 virus and the curtailment of normal legal education in very many jurisdictions. So the decision to examine the topic of online legal education at the Congress proved to be very ‘timely’, as Professors Nottage and Ibusuki say in their General Report. Suddenly online legal education had become frighteningly necessary and common. It can also provide access to courses otherwise practically too expensive or unavailable to less privileged students. What, therefore, may be the consequences of greater use of online legal education for the future of the profession and the teaching of law around the world?

This useful volume examines those issues relevant to online legal education in 13 jurisdictions representative of the major common law and civilian traditions as well as some hybrid jurisdictions. It makes some tentative predictions for the future of such education. The examples also carry the advantage of having been drawn from countries with widely varying economies, unequal access to technology for online teaching and differing traditions in the teaching of law. 

The authors link legal education to the legal profession and main legal traditions of each jurisdiction covered, and include pre- and post-admission education for law graduates. The focus is mostly on university-level legal education but practical professional training in some jurisdictions is also addressed. Online education for such practical training can be more effective than may be the case for young undergraduates. It is also notable that the topic shows the typical tensions between continuity and change often found in comparative studies. 

Some of the main general conclusions reached are that developments in online legal education in the 13 jurisdictions examined should be influenced by the nature of the jurisdiction’s legal tradition and legal profession, its level of public funding for universities, its level of economic development, including its infrastructure for information and communications technology, and the particular impact of the COVID-19 pandemic. The work as a whole will be especially useful for those considering how to deploy online legal education in a particular jurisdiction, using that analysis, with a view to setting up a properly nuanced regime for that style of education for that jurisdiction. 

Those charged with these significant responsibilities in jurisdictions and universities around the world will derive great benefit from studying the insights contained in this volume. 

Japanese Imperial Decoration for former NSW Chief Justice Bathurst

ANJeL is delighted to join in congratulating its member and longstanding supporter the Hon Tom Bathurst AC KC, former Chief Justice of New South Wales and now King’s Counsel with 6 Selbourne Wentworth Chambers, for being awarded recently this year a very high Honour from the Emperor on the advice of the Japanese Government. Very few jurists have been accorded this Honour, but among them are French law reform advisor and professor Gustave Emile Boissonade (1825–1910) and former High Court of Australia justice the Hon Michael Kirby AC CMG (awarded in 2017).

Photos from the conferment ceremony, attended also by the immediate past President (now NSW governor) and current President of the NSW Court of Appeal as well as ANJeL visiting Judge Kohei Sasaki and others, can be found here along with the Consulate-General’s further explanation:

“On 29 April, Mr Tom Bathurst was announced as a recipient of The Order of the Rising Sun, Gold and Silver Star, in the 2023 Spring Imperial Decorations, in recognition of his contribution to strengthening ties between Japan and Australia and the promotion of mutual understanding in the judicial field.

On 6 July, at his official residence, Consul-General Tokuda presented the Order of the Rising Sun, Gold and Silver Star to Mr Bathurst, former Chief Justice of the Supreme Court of New South Wales and former Chair of the Judicial Section of the Law Association for Asia and the Pacific (LAWASIA). During the ceremony, a video message from Japan’s Chief Justice TOKURA Saburo was played to Mr Bathurst and assembled guests.”

ANJeL is also very grateful for support over the last two decades from the current NSW Chief Justice, the Hon Andrew Bell (launching on 3 August Luke Nottage’s book co-edited with Prof Makoto Ibusuki, comparing online legal education) and Mr Bathurst’s predecessor, the Hon J J Spigelman who first collaborated with ANJeL in its formal judicial exchange program with the Supreme Court of Japan. ANJeL also thanks Mr Shuichi Tokuda and his predecessors as Consul-General of Japan in Sydney, who have assisted with this program and other ANJeL activities while serving on its Advisory Board.

Comparing “Consumer Law in New Zealand”

[This is a draft of a Review Essay of a new edition textbook, comparing mainly developments in Australia. The Trans-Tasman developments in consumer law can be usefully compared to those in Asia including Japan, which Prof Souichirou Kozuka and I recently compared with Australia.]

Kate Tokeley and Victoria Stace (eds) Consumer Law in New Zealand

(3rd ed 2022, LexisNexis NZ Ltd, Wellington) lxxii + 769pp

This rich and authoritative textbook deserves a wide readership among researchers, practitioners and policy-makers also beyond New Zealand, especially in Australia – but potentially too across Asia, for example, where consumer law is similarly developing apace.[1] This review essay gives a taste of the book’s scope and points of comparative interest, particularly from a trans-Tasman perspective.[2] Overall, it highlights how New Zealand’s consumer law has long been influenced by Australia and sometimes in turn impacted the latter, but has arguably provided less protection, although NZ has introduced some similar reforms in recent years. Various reasons for this disparity are proposed briefly by way of conclusion below, but this textbook provides an excellent basis to explore that theoretical question as well as for readers seeking more specific practical analysis of consumer law in NZ.

The pioneering first edition of this textbook (2000, Butterworths) was written by Kate Tokeley of Victoria University of Wellington (VUW), who then authored parts and edited the lengthier second edition (2014, LexisNexis, 543pp) with seven other consumer law experts. For this even more detailed third edition, she was joined as co-editor by Victoria Stace (also now at VUW) and three contributors to the previous edition as well as three new authors.

This book is divided neatly into seven parts: (1) introduction and general themes (comprising Tokeley’s chapters 1 and 2 on consumer law history and, very interestingly, rationales); (2) defective goods and services (Tokeley’s chapter 3 on pre-sale product safety rules and chapters 4-6 on the coverage, rights and remedies under the Consumer Guarantees Act 1993 or CGA); (3) consumer education (chapters 7-9 by Canterbury University’s Debra Wilson, expert on the Fair Trading Act 1986 [FTA] and some more specific enactment regulating advertising and labelling); (4) unfairness and unconscionability (chapters 10-12 respectively on unfair terms by Alex Sims from the University of Auckland, unconscionable conduct in trade by Stace, and unfairness in particular selling methods by Wilson); (5) financial consumer protection (chapters 13-14 by Stace providing an overview and then focusing on the retail investment market, chapters 15-16 by Barry Allan on consumer credit); (6) consumers and technology (chapter 17 on contract formation and chapter 18 on data collection, privacy and consumer manipulation by Colin Gavaghan and Simon Connell, being much expanded of course compared to the second edition); and (7) dispute resolution (chapter 19 generally on “access to justice for consumers” by Bridgette Toy-Cronin, and Sims’ chapter 20 detailing the “industry-specific dispute resolution schemes”).

Defective Good and Services

On pre-sale product safety rules, hearkening back to her chapter 2 on consumer law rationales, Tokeley begins by highlighting that these rules “are paternalistic in nature in that they limit consumers’ freedom to choose what are deemed to be unsafe products”, although there are “strong arguments that overall consumer welfare is improved if we are protected from products that pose a real danger of causing injury or death” (p51). She notes that the OECD has called for a general consumer right to safe products, yet New Zealand’s FTA only sets six mandatory product safety standards for general consumer (mostly children’s) products, compared to over 40 under the Australian Consumer Law (ACL, p53).

Tokeley asks whether New Zealand should add a general safety provision (GSP) requiring all consumer products to be safe before being put on the market, especially as no claims for personal injury caused by unsafe products can be brought (since the introduction of a state-run no-fault compensation scheme in the early 1970s). She notes that this requirement has operated in the EU for over 20 years (in fact, since a 1992 Directive) and similarly enacted in Canada in 2010 and (in fact, not as extensively) in Singapore in 2011. We could add that a GSP also applies in former colonies Hong Kong and Macau, Malaysia and (since 2019) Thailand, and enactment in Australia has been long discussed including through a (stalled) Regulatory Impact Statement consultation in 2019.[3]

Tokeley observes that determining whether a GSP would be a good idea in New Zealand “would require a debate about how to balance safety interests against consumer freedom of choice and increases in enforcement and monitoring costs” (p54). Such a debate would seem timely, given extensive arguments and evidence now from comparable economies, and the very high value that the government in New Zealand (and to a lesser extent Australia) was prepared to put on saving lives during the COVID-19 pandemic. Introducing a GSP would also seems more advantageous in New Zealand as there have only been three “product safety policy statements” issued seeking voluntary compliance by suppliers, since 2013 amendments to the FTA (ss 30A and 30B, p56). Furthermore, a duty on suppliers to notify voluntary recalls was only added in 2013 (long after Australia), but New Zealand still lacks a duty to report serious product related accidents (added in the ACL since 2010) and other risks (as in the EU and Canada, for example).

This textbook’s discussion of the 1993 CGA is also very useful for Australian consumer law experts. The ACL in 2010 largely slotted in the CGA regime (including especially its set of statutory remedies for the supply of defective goods or services) in lieu of the mandatory statutory warranties introduced by the ACL’s predecessor Trade Practices Act (Cth) 1974. The CGA was also influenced by some Canadian legislation, and it is also largely adopted by Malaysia’s Consumer Protection Act 1999. Tokeley’s discussion of New Zealand (and some Canadian) case law and academic commentary is therefore very relevant for Australian experts. Interestingly, for example, a District Court in New Zealand had ruled already in Cooper v Ashley & Johnson Motors Ltd [1997] DCR 170 that accumulated minor defects can add up to a substantial (or major) failure, justifying extra CGA remedies such as a refund rather than merely repair or replacement. Tokeley also notes a similar approach taken by some Saskatchewan courts (pp 145-6). We could add that this wheel had to be reinvented by tribunals and lawmakers in Australia, but the ACL was recently amended to clarify this possibility (s260), partly given the persistent problem of “lemon” vehicles in Australia.[4]

Also interesting from a Trans-Tasman perspective is the narrower scope of application of the CGA. It only applies to “consumers” as defined in s2(1) as those (a) acquiring goods and services (objectively) of a kind “ordinarily acquired for personal, domestic, or household use or consumption”, plus (b) not for the (subjective) purpose of resupply in trade or consuming them for production etc. The ACL (s3) tries to add certainty to the first limb (a) by extending the scope of “consumer” guarantee coverage to all purchases under a monetary threshold (recently increased to A$100,000), albeit still subject to the second limb (b) exclusions. This means that more business-to-business (B2B) transactions are probably covered by the mandatory guarantees in Australia.

New Zealand also allows more contracting out than in Australia, in that CGA s43 (modified in 2013 in line with an FTA insertion) allows parties both in trade to agree in writing to exclude the mandatory “consumer” guarantees provided this is “fair and reasonable” (as elaborated in a new s43(2A), p94). By contrast, the ACL only allows parties to agree on terms specifying more limited liability (excluding consequential damages etc.) if the goods or services are not ordinarily for personal use (s64A).

New Zealand may also allow more scope for parties, especially perhaps in B2B transactions, to exclude the application of the CGA regime altogether by expressly agreeing on a foreign law to govern all disputes related to their contract. Tokeley notes that under traditional private international law principles, the threshold for overriding the parties’ express choice of law based on a “public policy exception is exceptionally high” (p104). She adds that the CGA does not contain any express provision dealing with this issue that could be construed as an overriding mandatory statutory provision preventing parties from choosing a foreign governing law, contrasting ACL s67 as interpreted (perhaps in a rather strained way) in Valve Corporation v ACCC [2017] FCAFC 224. However, Tokeley indicates that New Zealand courts might not apply either traditional private international law approach to determine this possibility of parties choosing a foreign law. They might instead adopt an “ordinary statutory interpretation approach” – divining what the legislator intended from its text and purpose – as applied in the cross-border employment dispute of Brown v New Zealand Basing Ltd [2017] NZSC 139, even though the outcome of such an approach “applied to the [CGA] is difficult to predict” (p106).

In my view, her subsequent brief analysis suggests that it might result in consumers in a narrower (EU-style) sense, namely individuals contracting for non-business purposes, but not necessarily businesses being protected against at least some foreign governing law clauses. After all, earlier Tokeley notes that a new s1A added in 2013 to the CGA (again, mirroring that added to the FTA) clarifies that the legislative purpose is “consumer protection but that this is also balanced against businesses being able to compete effectively and participate int the market with confidence” (p69). This unresolved issue certainly deserves public consultation by policy-makers, both in New Zealand and Australia, especially as an agreed foreign law clause can be combined with a clause providing for exclusive jurisdiction of a foreign court or arbitral tribunal[5] – although Sims later remarks that the latter type of clause may be void as unfair (p315).

Misleading and Unconscionable Conduct

Chapter 8, where Wilson sets out the “general rules on misleading and deceptive conduct and misrepresentations”, is also interesting because the FTA statutory prohibitions and then New Zealand case law were heavily influenced by Australian law. However, it seems that the Supreme Court in Red Eagle Corp Ltd v Ellis [2010] NZSC 20 has developed a simpler one-step approach to determining misleading conduct in at least some situations (pp192-3). More unusual for Australian consumer law experts will be the helpful discussion of the Contract and Commercial Law Act 2017. That subsumed the Contractual Remedies Act 1979, which had adjusted common law rules on misrepresentations and termination of contracts. Again, the 2017 legislation retained the capacity for parties to agree on “ouster” clauses preventing investigation into whether pre-contractual statements were made or relied on, for example, but provided these were “fair and reasonable” (e.g. between commercial parties of equal bargaining power advised by lawyers, pp 241-3).

Chapter 11 by Stace contains even more extensive (and well-argued) analysis of the complex and evolving Australian case law on statutory “unconscionable conduct in trade”, which is informed but not limited by equitable doctrines (pp 349-70).[6] This is justified because New Zealand only added such a prohibition to its FTA (s7) with effect from 16 August 2022. Stace explains how the New Zealand Commerce Commission (enforcing the FTA) favoured adopting the ACL’s approach, which had developed legislatively since 1986 and especially 1992, when in 2018 a consultation paper was released by New Zealand’s Ministry of Business Innovation and Enterprise (MBIE, which had subsumed the Ministry of Consumer Affairs). To address survey and other evidence about gaps in the legislative framework and poor practices by businesses, towards consumers but also other businesses, MBIE had instead favoured the option of enacting a prohibition against “oppressive” conduct (centred on the  “reasonable standard of commercial practice” test) modelled on consumer credit contract law. Neither government entity favoured the option of prohibiting unfair practices along EU Directive lines, with MBIE assessing this option as “the most complex and uncertain” (p336) although it has long been operating in the EU, United Kingdom and for example Singapore.

However, Stace later notes (p370) that in the wake of the ACCC’s Digital Practices Inquiry Final Report (June 2019), for example: “There is some regulatory support for the introduction of a more general prohibition on unfair conduct in trade in Australia. It is likely that the New Zealand government would have to consider something similar in New Zealand, if such a prohibition were introduced in Australia, in the interests of harmonisation of business law between the two countries” (p370). Since the book was published, pressure towards adding this wider prohibition has kept growing in Australia.[7] This is partially caused by growing awareness and concern, especially given the expansion of e-commerce particularly during the pandemic, about the use of “dark patterns” to manipulate consumer behaviour (helpfully summarised by Gavaghan and Connell at pp641-9) through business systems that are not readily impugned as misleading or unconscionable.

Unfair Contract Terms

Australian experts will also find familiar and useful the discussion by Sims of “unfair contract terms” regulation in chapter 10, as this too was added to the FTA in 2013 (with effect from 2015) “modelled on Australia’s law, albeit there are significant differences” (p288). The most important distinction in the ACL regime applied nationwide since 2010, based on Victorian state legislation enacted a decade earlier based on a 1993 EU Directive (and supplemented by the Contracts (Review) Act 1980 still curiously in effect in New South Wales), is that unfair terms in Australia can be asserted by consumers as void.

By contrast, New Zealand’s regime since 2015 requires the Commerce Commission to bring proceedings for Court declarations that the term is void. A concern underlying this narrow standing requirement, not found either across Europe or many other jurisdictions enacting similar unfair contract terms rules for consumers, was reportedly that allowing consumers directly to challenge unfair terms (as urged in 2010 by the then Ministry of Consumer Affairs) would mean more transaction costs for traders (p289). Sims notes that her prediction in the second edition textbook, that the limited standing and resources for the Commerce Commission would mean few declarations being sought, has been borne out: only three applications had been made when she wrote for this third edition (December 2021), despite significant evidence that unfair terms are widespread (p290). Unsurprisingly, therefore, too, the chapter by Sims includes many more references to Australian case law on unfair terms than the few New Zealand court judgments.

A second significant Trans-Tasman difference is the scope of the main regime voiding unfair terms. Under the ACL, it applies to individual consumers transacting for non-business purposes (s23). In New Zealand, this is similar for dealings in land. However, for goods and services its unfair terms regime adopts the same definition as for the CGA as mentioned above (ordinarily for personal use etc., but not for resupply etc.: p293). In addition, the ACL added protections for “small business contracts” already in 2016, defined by setting a maximum contract amount plus number of employees. ACL amendments in November 2022 (in force from a year later) remove the contract amount threshold, and extend protection if at least one party employs fewer than 100 (rather than 20) employees. By contrast, the FTA was amended with effect again only from 22 August 2022 and protects against unfairness in “small trade contracts” defined solely by reference to a maximum contract amount (p288).

A third difference, not evident from this textbook because it was published after the ACL November 2022 amendments, is that an initial use of a term found unfair will attract civil penalties. Under the prior scheme (still found in New Zealand), penalties only applied for continuing to use a term declared unfair by a court.[8] (Australian penalties are also significantly higher than for contravention of the consumer protection provisions in New Zealand’s FTA and CGA, as noted already in some other parts of this book.) The November 2022 ACL amendments also clarify that Australian courts can make orders applying to any existing contract entered into by a respondent containing a substantially similar term to one the court has declared to be unfair, and/or which prevents a term from being included in future contracts. This too could be a useful way to make the New Zealand regime more effective. Its present FTA only provides that once the court declares the term void (if challenged by the Commerce Commission), this “automatically extends to the trader’s contracts with other consumers. The trader would therefore be unable to enforce that term against other customers who had entered into the same standard form contract” (p304).

It should also now be added that from November 2021 the federal Treasury began consulting about allowing ACL regulators also to impose civil penalties on suppliers that do not provide consumers remedies for at least major failures under the consumer guarantees regime, perhaps only for goods or services that are causing more problems (such as lemon vehicles).[9] The proposal parallels a recommendation from the Productivity Commission’s Right to Repair report, made public on 1 December 2021.[10] Such a reform would supplement the ACL regulators’ powers to bring representative actions for violations of consumer guarantees if consumers opt-in, which the regulators however have been curiously loath to use. New Zealand regulators lack even the latter power (cf p697), and policy-makers in that country could consider whether the Treasury’s more recent initiative would significantly reduce problems uncovered by evidence cited in this textbook regarding unfair terms and practices more generally.

Access to Justice for Consumers

In New Zealand, therefore, prospects for “public enforcement” of consumer rights have been more restricted than in Australia. More reliance therefore must be placed on New Zealand consumers knowing about and then enforcing their rights themselves. Yet Toy-Cronin remarks in chapter 19 that a “2020 survey found that almost all consumers were aware that laws exist in New Zealand to protect their consumer rights, but detailed knowledge of those rights was less widespread … only 26 per cent of consumers answered at least six of the ten scenarios about consumer problems correctly” (p672). Incidentally, such more specific questions would be useful to pose to Australian consumers, in multiple national surveys and recently one just for Victorian consumers.[11]

Her chapter on “access to justice for consumers” shows that there is significantly less available first through the courts, in that there is still no US-style opt-out class action regime to efficiently aggregate small claims (as in Australian federal courts since 1992, and various states starting with Victoria from 2000). However, Toy-Cronin notes that the New Zealand Law Commission was investigating this possibility (pp 690-1). We can add now that in June 2022 it issued a Final Report recommending enactment of a scheme quite similar to Australia’s class action regime, as well as recommendations about third-party litigation funding, which has become a major part of Australia’s civil litigation landscape since 2007. She also notes that New Zealand lacks a regime for pure contingency fees, where lawyers agree with clients to fund litigation themselves in exchange for a percentage of damages obtained (pp687-9). Plaintiff lawyers and some other groups pressed strongly to allow this in Victoria, with reforms in effect from 1 July 2020 for class actions.[12]

As for what Toy-Cronin’s chapter 19 outlines as “self-help” options for consumer access to justice, some of the concerns about disputes tribunals seem similar to those raised for Australian counterparts. These include some formalisation of proceedings, challenges in enforcing tribunal rulings, and concerns about whether “the current balance is right” between procedural fairness and expeditious dispute resolution given that the same adjudicator also has a preliminary role in encouraging settlement (p679). She adds that a 2008 response by the Government to a Law Commission inquiry into Disputes and other tribunals, aiming to reduce ad hoc elements and duplication of resources through a more uniform regime, has not progressed (p683). This contrasts with reforms combining administrative and consumer tribunals in Victoria and New South Wales, for example, which seem to have been fairly successful.[13] There also seem to be fewer developments to expand online dispute resolution (p675), compared to Australia where the Digital Platforms inquiry has kept this more firmly on the agenda.[14] Another development that New Zealand might consider copying is a UK-style “super complaints” procedure, expected to be enacted this year, whereby peak consumer groups can provide evidence of widespread harm, to regulators who then need to respond publically within a specific timeframe.[15]

Conclusions

In sum, this is an excellent textbook detailing all elements of consumer law in New Zealand, deftly combining legislative analysis, case law, illuminating further examples, academic commentaries and recent developments, which should be on the shelves or computers of all Australian consumer law experts. The many comparisons made with Australia, and some of the additional ones added in this review of the book, also leaves a wider question. Why is it that the protection for consumers seems nonetheless to remain less extensive in New Zealand, despite a long history of Trans-Tasman business law harmonisation and other close legal cooperation?[16] The evidence presented in this textbook suggests that the answer is not that New Zealand traders are much better behaved than Australian counterparts.

One possible explanation from political history is that the Labour Governments in New Zealand (1984-1990) pursued a more extensive deregulatory agenda than the Hawke/Keating Labor Governments in Australia, and this more laissez-faire mentality perhaps carried over into subsequent Governments (largely equally split between Labour and National Governments). New Zealand has also not seen the same phenomenon of small and even large businesses pressing ministers in Australia to add protections for ever more B2B transactions, not just protections for consumers in the narrower (EU-style) sense. Federal and state ministers have often been open to such entreaties, for better or worse, perhaps because many smaller businesses are sole traders who also therefore vote in elections.

A more socio-economic factor could be that although New Zealand has a higher proportion of indigenous and Pacific Island background consumers, Australia has long had a higher intake per capita of humanitarian and other immigrants.[17] Those have included many whose native language is not English and can therefore be seen as in further need of consumer law protections. A more institutional explanation might be that Australian consumer law regulators have developed more critical mass, not only for enforcing laws but advocating for further reforms, benefitting also from multiple reports from the influential Productivity Commission (with an analogue operating in New Zealand only since 2011). A political economy aspect may be that Australia’s federal system has generated more of a “California effect” (or “trading up” to stronger regulator standards),[18] rather than a deregulatory “Delaware effect”. Another possible explanation from comparative legal history or philosophy is that New Zealand contract law and supporting legal institutions have favoured more formal rather than substantive reasoning, at least traditionally.[19]

Such broader speculations, and therefore prospects for further convergence or divergence between New Zealand and Australia, merit further investigation. For such theoretical as well as practical purposes, by offering a comprehensive and deep understanding of New Zealand consumer law, this textbook provides an excellent basis to assess similarities and differences compared to Australia, and potentially other jurisdictions particularly around the Asia-Pacific region.


[1] See generally eg Nottage, Luke R. and Paterson, Jeannie Marie, Consumer Contracts and Product Safety Law in Southeast Asia: Partly Trading Up? (June 25, 2019). in Hsieh, Pasha L.; Mercurio, Bryan (eds), “ASEAN Law in the New Regional Economic Order: Global Trends and Shifting Paradigms”, Cambridge University Press, 2019, Sydney Law School Research Paper No. #19/37, Available at SSRN: https://ssrn.com/abstract=3409602; and Howells et al (eds) Consumer Protection in Asia (Hart, 2022) https://www.bloomsbury.com/au/consumer-protection-in-asia-9781509957545/

[2] For some earlier comparisons, see also Nottage, Luke R. and Riefa, Christine and Tokeley, Kate, Comparative Consumer Law Reform and Economic Integration (2013). CONSUMER LAW AND POLICY IN AUSTRALIA AND NEW ZEALAND, J. Malbon and L. Nottage, eds, Federation Press, Australia, 2013, Sydney Law School Research Paper No. 15/77, Victoria University of Wellington Legal Research Paper No. 15/2016, Available at SSRN: https://ssrn.com/abstract=2662295

[3] Nottage, Luke R., Improving the Effectiveness of the Consumer Product Safety System: Australian Law Reform in Asia-Pacific Context (February 3, 2020). Journal of Consumer Policy (2020) 43:829-850, also at https://ssrn.com/abstract=3530671

[4] For an analysis of divergent Australian tribunal decisions, arguably influencing the ACL amendment, see Jeannie Paterson “The Consumer Guarantee Remedial Regime: Some Uncertainties and the Role of Common Law Analogy” 33 Journal of Contract Law (2006) 210 at 221-3.

[5] Compare also generally Garnett, Richard, “Arbitration of Cross-Border Consumer Transactions in Australia: A Way Forward?” (2017) 39(4) Sydney Law Review 569, also at http://classic.austlii.edu.au/au/journals/SydLawRw/2017/23.html; Teramura, Nobumichi and Nottage, Luke R. and Morrison, James, International Commercial Arbitration in Australia: Judicial Control over Arbitral Awards, in “The Cambridge Handbook of Judicial Control of Arbitral Awards”, edited by Larry A. DiMatteo, Marta Infantino and Nathalie M-P Potin, Cambridge University Press, 2020, pp. 175 – 197, also at https://ssrn.com/abstract=3379494

[6] For an early comparison of unconscionability and other doctrines, including undue influence (touched on at pp647-8 in this textbook’s discussion of “dark patterns”), see also Nottage, Luke R., Form and Substance in US, English, New Zealand and Japanese Law: A Framework for Better Comparisons of Developments in the Law of Unfair Contracts. Victoria University of Wellington Law Review, Vol. 26, pp. 247-292, 1996, also at https://ssrn.com/abstract=842684

[7] See Nottage, Luke R. and Kozuka, Souichirou, Consumer Law Redress and Administration, Product Safety Regulation and Contracts in Japan and Australia (May 26, 2023), manuscript at https://ssrn.com/abstract=4459890

[8] For an assessment of this reform, combined with the expansion of protections to more B2B transactions, see Jeannie Paterson and Hal Bolitho, “Unfair terms and legitimate business interests in standard form small business contracts” (2023) 30 CCLJ 19.

[9] https://treasury.gov.au/consultation/c2021-224294

[10] https://www.pc.gov.au/inquiries/completed/repair#report

[11] See https://consumer.gov.au/consultations-and-reviews/australian-consumer-survey and https://cprc.org.au/vic-consumers/

[12] See eg https://www.ibanet.org/contingency-fee-revolution-in-australia.

[13] Compare eg Nottage, Luke R., Consumer ADR and the Proposed ‘Consumer Law’ in Australia: Room for Improvement (March 29, 2009). QUT Law and Justice Journal, Vol. 9, No. 2, February 2010, pp 176-97, Sydney Law School Research Paper No. 09/10, Available at SSRN: https://ssrn.com/abstract=1370106; and Productivity Commission, Consumer Law Enforcement and Administration – Final Report (12 April 2017) https://www.pc.gov.au/inquiries/completed/consumer-law.

[14] See eg the ACCC’s Interim Report (September 2022) https://www.accc.gov.au/about-us/publications/serial-publications/digital-platform-services-inquiry-2020-2025/digital-platform-services-inquiry-september-2022-interim-report-regulatory-reform

[15] Nottage and Kozuka, op cit (with further references).

[16] See generally Nottage, Luke R., Asia-Pacific Regional Architecture and Consumer Product Safety Regulation for a Post-FTA Era, in Meredith Kolsky Lewis and Susy Frankel (eds) Trade Agreements at the Crossroads(London: Routledge, 2014) 114-38, earlier version also at https://ssrn.com/abstract=1509810

[17] See eg https://theconversation.com/new-zealand-has-one-of-the-lowest-numbers-of-refugees-per-capita-in-the-world-there-is-room-for-many-more-162663

[18] Compare also generally Nottage and Paterson op cit

[19] See generally eg Nottage (1996 VUWLR) op cit, and Nottage, Luke R., Tracing Trajectories in Contract Law Theory: Form in Anglo-New Zealand Law, Substance in Japan and the United States, Yonsei Law Journal, Vol. 4, No. 2, pp. 175-271, 2013, Sydney Law School Research Paper No. 13/37, also at https://ssrn.com/abstract=2270889

Investment Arbitration, Corruption and Illegality: Korea

Guest blog by: Prof Joongi Kim (Yonsei University)

[Ed. note by Luke Nottage: Below is the Abstract for Prof Kim’s chapter on Korea for Teramura, Nottage and Jetin (eds) Corruption and Illegality in Asian Investment Arbitration (forthcoming in Springer’s Asia in Transition series), presented at the UBD conference on 29 May 2023 supported by CAPLUS. There are interesting parallels with the chapter on Japan, but also some significant differences, notably more inbound (and outbound) treaty-based investor-state dispute settlement (ISDS) arbitration cases, fewer treaty provisions expressly urging host states to implement anti-corruption laws, and more / consistent express legality requirements for investments to be covered under Korea’s treaties. Below is also an extract from Prof Kim’s chapter outlining two important linked inbound ISDS cases that were still pending as of 29 May 2023, alleging damages due to bribes under a criminal scheme perpetrated by Korean public officials, including then President Park Geun-Hye (impeached in 2017 and later jailed). Further updates may be provided on this webpage for some of the disputes mentioned below.]

Abstract: This chapter provides an overview of Korea’s investment treaty regime and its provisions and practice concerning corruption and illegality. It further analyzes how these issues have featured in cases related to Korea and Korean investors. Korea has become a leading exporter and significant importer of foreign direct investment (FDI). To protect and promote inbound and outbound investment, Korea has established one of the most wide-ranging and extensive regime of international investment agreements in the world, primarily through an array of bilateral investment treaties and free trade agreements with investment chapters. However, their provisions related to corruption and illegality are generally not developed. For instance, most Korea’s treaties do not include an explicit requirement for the host states to take measures against corruption. Korean treaties also vary in terms of how they require foreign investments to be made in accordance with host state laws. Korea’s passivity regarding such provisions seems unaffected by foreign investors increasingly commencing arbitrations against Korea recently and Korean investors also becoming more active in bringing outbound claims. While the extent that corruption or illegality features in cases brought by Korean investors remain largely unknown, some of the cases against Korea have corruption and illegality related elements. There is no indication that Korea may become more proactive in terms of corruption provisions, but some signs it is pursuing more and clearer legality provisions. Nevertheless, it is foreseeable that Korea might become more proactive in promoting both types of provisions in future treaties as part of its commitment to transparency.

Mason and Elliott

In 2018, two large U.S. institutional investors of Samsung C&T, a very large listed construction and engineering company, each brought claims against Korea for breach of investment protections under the Korea-US FTA.[1] Both cases did not involve more traditional examples such as where a foreign investor allegedly engaged in corruption or illegal behaviour and State cited the illicit acts as a defence against the claims. The case was also not an example of a State soliciting or extorting bribes from the investor. While corruption was a prominent fact that served as a key factor in the claimants’ claims, corruption was not an issue that was directly associated with the investors themselves. The investors instead based their claims on the harm that they allegedly suffered as a result of corruption between the controlling shareholder and senior government officials. On 30 June 2023, a final award was rendered in Elliott v. Korea whereas an award remains pending for Mason v. Korea where post-hearing briefs were filed in April 2022.[2] According to the Korean Ministry of Justice, out of the USD 770 million that was claimed, the Elliott v. Korea tribunal found Korea liable for USD 54 million plus interest and the claimant’s legal costs.

Both cases arose out of the merger between Samsung C&T and Cheil, at the time, both affiliates within the prominent Samsung Group. Shareholders approved the merger in July 2015. With a stake of 11.21 %, NPS was the largest shareholder of Samsung C&T and, according to the claimants, provided the decisive vote in favour of the merger despite the opposition of various shareholders. Mason held 2.18% and Elliott 7.12 %.

The two foreign shareholders, Mason and Elliott, claimed that they suffered damages due to bribes under a criminal scheme that was perpetrated by Korean public officials, including the then President, the Minister of Health and Welfare, and the Chief Investment Officer of the National Pension Service (NPS). The President was sentenced to 20 years of prison for bribery and other charges.[3] Elliott sought USD 539.8 million, and Mason sought USD 191.4 million in damages plus interest and other relief.

A key part of the case concerned whether the President provided ‘decisive assistance’ to approve the merger as a quid pro quo for receiving bribes from the controlling shareholder of the Samsung Group. The claimants contended that the President received the bribes in exchange for her assistance in getting NPS to approve the merger. The claimants asserted that the President requested the bribe in the form of sponsorship of certain sports organizations and that there was a common understanding that the economic support was in exchange for the President’s help for the controlling shareholder’s succession plan through the merger. 

As a result, the claimants asserted a breach of the minimum standard of treatment because, among other things, Korea’s actions were arbitrary, grossly unfair, unjust, discriminatory, in disregard of due process and proper procedure, and lacked transparency. They argued that Korea’s action violated the International Court of Justice’s Neer judgment standard and that ‘Korea’s corruption, bribery, overt discrimination, and flaunting of its own laws was outrageous’.[4] According to them, Korea had no legitimate interest to vote in favour of the merger.

In reply, Korea argued that the ‘High Court did not find that President provided any assistance to the Merger, let alone that she gave instructions to implement any measures against Mason or any foreign hedge fund’.[5] Korea stressed that the courts held that any quid pro quo relationship and payment of bribes occurred after the President met the controlling shareholder on 25 July 2015, which was after the NPS’s Investment Committee’s decision on 10 July 2015 and the shareholders meeting on 17 July 2015, both to approve merger. Korea asserted that there was no evidence that the bribes were connected with the merger and could have been intended to induce its approval. The claimants also lacked a legally significant connection between Korea’s alleged measures and their investments.[6]

Korea also stated that NPS did have a legitimate interest in supporting the merger because supporting the Samsung Group’s succession process was in the interest of the Korean economy. It did not have as a purpose the expropriation or extraction of value from SC&T’s shareholders. They cited that High Court did not conclude that the merger ‘extracted value from SC&T’s shareholders, much less that the Korean government intended to extract value’.[7] According to Korea, the goal was to instead support the succession process and stabilize the Samsung Group.

The Elliott tribunal found that the NPS’s merger vote was the result of the improper influence by the Blue House and the Ministry of Health and Welfare and not of its own independent, professional judgment. More specifically, the Tribunal found that the NPS “did not take its decision independently, based on the commercial merits of the Merger, but acted under the direction and instructions of the MHW and thus effectively as an instrument of the MHW in the implementation of a government policy”.[8] Quoting from Waste Management v Mexico,the State’s conduct was deemed to be “unjust” and amounted to a “will neglect of…duties” and “a pronounced degree of improper action” that breached the minimum standard of treatment required. [9]

Both cases did not involve a situation of a failure to prosecute as was raised in such cases as World Duty Free v. Kenya[10] and Wena v. Egypt.[11] Instead, the claimants relied extensively on the prosecution’s cases and the resulting court awards against the former Korean government officials. The Tribunal even noted the State’s diligent prosecution of those involved and described that “the action taken by the Korean State in this regard is commendable and demonstrates its commitment to the rule of law”.[12]


[1] Mason Capital L.P. and Mason Management LLC v. The Republic of Korea, PCA Case N° 2018-55 (“Mason v. Korea”); Elliott Associates, L.P. v. The Republic of Korea, PCA Case N° 2018-51 (“Elliott v. Korea”).

[2] Mason v. Korea, https://pca-cpa.org/en/cases/198/; Elliott v. Korea, https://pca-cpa.org/en/cases/197/. Pursuant to KORUS FTA, the memorials of the parties are available on the PCA’s website, but the factual exhibits, legal authorities, witness statements, and expert reports are not. For updates, see Kim 2023.

[3] The controlling shareholder was also found guilty of bribery. Notably, no evidence existed that the President, Minister or CIO personally benefitted from the payments and the only direct beneficiary was a close confidante of the President. Furthermore, the senior government officials were not found guilty of bribery and the Minster was sentenced to two and a half years for abuse of power and perjury and the CIO was sentenced for two and a half years for occupational breach of trust.

[4] Mason v. Korea, Claimant’s Request for Arbitration and Statement of Claim, para. 73.

[5] Mason v. Korea, Respondent’s Post Hearing Brief, para. 20.

[6] Korea argued, among other things, that the actions of NPS did not have a legally significant connection with the claimants because (i) in exercising its shareholder right to vote on the merger, NPS did not owe any duty to the claimants, (ii) the NPS exercised its shareholder voting rights in the same way as any other Samsung C&T shareholder; (iii) the merger did not impair or expropriate Mason’s rights as an Samsung C&T shareholder; (iv) there was no evidence that Korea and the NPS intended to extract value from Samsung C&T’s shareholders through the merger. Mason v. Korea, Respondent, Post-Hearing Brief, para. 11; Elliott v. Korea, Respondent, Statement of Defense, para. 541.

[7] Mason v. Korea, Respondent, Post-Hearing Brief, para. 14.c).

[8] Elliott v. Korea, Award, para. 623.

[9] Elliott v. Korea, Award, para. 603.

[10] World Duty Free v. Kenya, ICSID Case No. ARB/00/7. [[See further Chapter 4 by Reyes et al, in this volume.]]

[11] Wena Hotels Ltd v. Arab Republic of Egypt, ICSID Case No. ARB/98/4, Award on Merits (8 Dec. 2000), paras. 82–84.

[12] Elliott v. Korea, Award, para. 604.

History of International Arbitration in Japan

[This is the Introduction to a draft chapter written with ANJeL-in-ASEAN Convenor Asst Prof Nobumichi Teramura, for a book being edited by Lars Markert et al on International Arbitration in Japan]

Arbitration has had quite a long modern history in Japan, including a fascinating inter-state dispute that arose in 1872 (Part 2 below). The first arbitration legislation, modelled on German law, was enacted in 1890 and survived for over a century (Part 3).

In 1961, Japan also became one of the first states in Asia, indeed world-wide, to ratify the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC). A few years after the 1985 release of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration (ML), a group comprising mostly academics proposed new legislation based on that emerging global standard. However, the concept was only enacted 15 years later as the Arbitration Act (Law No 138 of 2003),[1] as part of the government’s broader package of reforms into justice system reforms. Instead, in 1996, legislation was amended to allow “fly-in” foreign lawyers (in addition to “foreign law solicitors” registered in Japan under legislation since 1986) to represent clients in international arbitrations in Japan. Their scope of permitted practice was somewhat expanded in 2021, as part of the government’s initiatives from 2018 to have Japan catch up with larger regional hubs for international arbitration. As another part of that program, the first amendments to the Arbitration Act were approved in 2023 (Part 4).

Despite this rather slow development of cutting-edge legislation for international arbitration in Japan, the courts have been comparatively consistent in rendering pro-arbitration decisions complying with the NYC and ML as international instruments (Part 5). Japan’s two main arbitration institutions, The Tokyo Maritime Arbitration Commission (TOMAC, established in 1926) and the Japan Commercial Arbitration Association (JCAA, established in 1953), have also helped keep arbitration practices updated by periodically revising their Arbitration Rules. The government’s push since 2017 to promote Japan more actively as a seat has led to further new Rules as well as new arbitral institutions, including for sports and intellectual property disputes (Part 6).

Japan has also become a comparatively active proponent of investor-state dispute settlement (ISDS) arbitration provisions in international investment agreements, although again after a slow start. Japan has seen few outbound and even fewer inbound ISDS arbitration claims. However, this means that arbitration generally may not attract as many negative associations with the general public as in other states experiencing more and/or high-profile ISDS arbitration claims from foreign investors (Part 7).

Despite such positive developments, arbitration has not yet captured the imagination in Japan. The general public remained quite unfamiliar with it, although awareness nowadays may be improving. Indeed, one colloquial understanding or definition of arbitration (chusai) was closer to mediation (chotei), even though the latter does not involve imposition of a binding decision by the agreed third-party neutral.[2] This confusion may have persisted from the Tokugawa era (1603-1867),[3] when notions of judiciable rights were comparatively weak and mediation was actively practiced to resolve civil disputes.[4]

As for awareness among Japanese firms in the modern era, the larger ones have long been quite familiar with the advantages of including arbitration clauses especially in maritime matters and other cross-border commercial contexts. Accordingly, some have got involved in some arbitrations and even some high-profile related court proceedings particularly abroad. In addition, sustained efforts by arbitral institutions and business associations since World War II have made smaller and medium sized enterprises more likely to include arbitration clauses in their own growing cross-border trade and then investment contracts, although many probably remain quite unfamiliar with arbitration. Furthermore, as a whole, Japanese firms have been more willing to agree to arbitration clauses specifying a seat outside Japan. In addition, they have appeared more reluctant actually to proceed with arbitration claims even under such clauses, or locally when the seat is agreed to be in Japan, compared to companies from other states in Asia and beyond.[5]

The result has been that Japan’s major arbitration institutions have not yet seen the significant growth in international case filings evident in several states in the region. Arbitration is also still used infrequently to resolve domestic commercial disputes. As with Japan’s still comparatively low per capita civil litigation rate, the reasons may be related to (general, organisational or legal) culture or institutional barriers (including comparatively few lawyers, experts, arbitrators and institutions pro-actively specialising in the field, at least until recently). These questions, and therefore the prospects for expanding arbitration services in Japan, are explored further in the Conclusions (Part 7).


[1] For a semi-official translation, see Japan Ministry of Justice, ‘Arbitration Act (Act No. 138 of 2003)’ (Japanese Law Translation) https://www.japaneselawtranslation.go.jp/en/laws/view/2784 accessed 14 April 2023.

[2] Tatsuya Nakamura, Chusaiho Gaisetsu [Outline of Arbitration Law] (Seibundo Shinkosha 2022) 1.

[3] Yoshihisa Hayakawa, ‘Nihon ni okeru Chusai no Rekishiteki Isou [Historical Phases of Arbitration in Japan]’ (2015) 87 Horitsu Jiho 19, 19-20.

[4] Nonetheless, some litigants did actively press their rights even during this pre-modern era, when Japan largely closed itself off from the wider world: see e.g., Herman Ooms, Tokugawa Village Practice: Class, Status, Power, Law (University of California Press 1996).

[5] Compare generally [[X-ref to Chapter 3 (Japan as seat) in this volume].

Japan’s International Investment, Evolving Treaty Practice and Arbitration Related to Corruption and Illegality

Written by: Luke Nottage and Nobumichi Teramura#

Abstract: This article forthcoming in 55 Journal of Japanese Law (mid-2023), part of an interdisciplinary book project on Corruption, Illegality and Asian Investment Arbitration [including a conference held in Brunei on 29 May 2023 (booklet here) supported by ANJeL and CAPLUS], addresses for Japan the difficult practical and policy question facing arbitration tribunals when a foreign investor claims mistreatment by a host state but the latter alleges that the investment was tainted by corruption or other similar serious illegality. By way of background, Japan emerged from the 1980s as a leading exporter of foreign direct investment (FDI). Yet it has low inbound FDI despite some significant growth since the late 1990s (Part II). This is despite Japan having comparatively very little corruption, which is often problematic for foreign investors (Part III).

To protect and promote outbound FDI after a hesitant start, over the last two decades, Japan has accelerated ratifications of standalone bilateral investment treaties (BITs) as well as investment chapters in free trade agreements (FTAs). Almost all allow foreign investors from the home state to directly initiate investor-state dispute settlement (ISDS) arbitration against host states to get relief from violations of substantive treaty commitments, such as non-discrimination or compensation for expropriation (Part IV.1).

Japan’s investment treaty practice on corruption and illegality is comparatively interesting for two reasons (Part IV.2). First, from around 2007, its treaties have often required host states to take measures against corruption. This should help Japan’s outbound investors, but these obligations are generally weakly phrased. Secondly, Japan’s treaties have been less consistent in expressly limiting their protections to foreign investments made in accordance with host state laws (including against corruption). This may be due to treaty drafters from Japan and counterparty states being less aware of the significance of such express legality provisions, which will often lead tribunals to decline jurisdiction if corruption is established, thus leaving foreign investors without treaty protections. Such outcomes may also incentivise host states to ensure a bribe is taken, to use as a treaty defence if foreign investors ever launch treaty claims, whereas other outcomes for tribunals are possible if there is no express legality provision. Another possibility is that this drafting is deliberate, again to benefit Japanese outbound investors as claimants because the absence of a legality provision renders more difficult defences from host states, which typically have more corruption than in Japan.

Japan may adopt more and clearer legality provisions if it becomes subject to more inbound ISDS arbitration claims, and/or if claims by Japanese outbound investors are mostly against well-governed host states with little scope for corruption. Yet both types of claims remain few (Part V). The shift may therefore come more from other counterparty states pushing for such legality provisions and Japan agreeing in its future treaties to demonstrate its overall commitment to combatting corruption, and to preserve the legitimacy of the ISDS arbitration system (Part VI).


# Respectively: Professor, University of Sydney Law School; Assistant Professor, Institute of Asian Studies, Universiti Brunei Darussalam.

Consumer Protection Administration, Product Safety Regulation and Contracts in Japan: Contemporary Comparisons with Australia and Beyond

Written by: Souichirou Kozuka and Luke Nottage (c) 2023

[On 19 January 2023 I interviewed Gakushuin University Professor Souchirou Kozuka about consumer law and policy developments in Japan (here on Youtube). He has been appointed to the Consumer Safety Investigation Commission within Japan’s Consumer Affairs Agency, and has co-authored papers with me on consumer credit regulation, Civil Code reform and corporate governance as well as sole-authoring several articles on consumer law in the Journal of Japanese Law, and serves as an ANJeL-in-Japan program convenor. We have summarised and expanded somewhat our conversation as below, aiming to develop a joint paper for a law journal (now in draft on SSRN).]

  1. Consumer Administration
    • Since 2009: Consumer Commission (independent members) supervising Consumer Affairs Agency (law reform plus enforcement)
      • Cf Productivity Commission (occasionally requested by federal Treasurer, eg 2008 Inquiry Report recommending harmonisation through ACL from 2010; 2017 Inquiry Report into consumer admin and enforcement, parallel to first five-yearly review into other ACL operations), but mostly Ministers (federal Assistant Treasurer with Treasury officials and state/territory consumer affairs ministers) deciding policy and law reform) ostensibly separated from law enforcement (federal ACCC, plus state/territory consumer affairs regulators) …[1] but latter sometime develop reform proposals for ministers and staff sometimes seconded eg from ACCC to Treasury
      CCA subsumed enforcement of Unjustified Premiums and Misreps Act from JFTC competition regulator, but not enforcement of Anti-Monopoly Law unfair trade practices “abuse of superior market provision”
      • Latter has some similarities with ACL prohibition on unconscionable conduct, former with misleading conduct (and other specific unfair trade practices) prohibitions, all enforced instead by combined ACCC (combining competition and consumer law enforcement from its established in 1970s as Trade Practices Commission – inspired by US law) and state/territory consumer regulatorsPerhaps because JFTC older (Allied Occupation), wouldn’t want to merge with newer, less-resourced CCA?
      CCA and other govt departments: Shares with METI jurisdiction over law reform for Designated Commercial Transactions Act (door-stop selling, distance selling etc: cooling off rights etc), and [see 2. Below] METI retains primary jurisdiction to set mandatory safety standards for types of (industrial) consumer products – like MHW does for foods and medical devices/services, and Transport Ministry does for cars etc
      • Cf Australian consumer affairs ministers/regulators have sole jurisdiction over such unfair trade practices, and minimum safety standards as well as bans/recalls for foods etc although have MoU with sectoral regulators and usually defer to them (but eg no power until recently to order recalls of cars – amended after Takata airbag recall problem[2])Shared or primary jurisdiction for other ministries because they are even older, more resourced (and losing jurisdiction means losing budget!)? Similar to problems with newer regulators in most (SE)Asian countries?[3]
      CCA and other stakeholders: CCA cannot seek injunctions eg to stop misrepresentations or use of unfair terms by suppliers under the Consumer Contracts Act 2000, or bring representative actions (under Brazil inspired two-stage law 2013, amended 2022), instead those via govt certified consumer NGOs (German approach, Singapore too through CASE until injunction power shifted to competition regulator now with consumer protection aspects so renamed SCCC from 2018)
      • Cf ACCC and state/territory regulators have full jurisdiction / powers for injunctions, opt-in representative actions (where individual consumers consent to regulator lawsuit) for damages – but rare, etc. But they (or consumer NGOs) don’t bring opt-out US-style class actions – instead individual/representative plaintiffs, and active law firms including (since 2006) third party litigation funders.
    CCA separate from consumer financial services regulators

Also in Australia, but eg ACCC and federal ASIC (no state laws/regulators for securites/corp law, consumer credit under shared national scheme) exchange some personnel, have some similar substantive laws (eg against unconscionable conduct and unfair terms) and if one gets greater powers/sanctions then the other usually soon asks for them too!

2. Product Safety Regulation

  • CPSA 1973 set limited pre-market controls (eg METI sets mandatory safety standards for manufactured products), but more expansive post-market controls (bans and – albeit like Australia rare – mandatory recalls) that can allow CCA to “encourage” line ministries to set mandatory safety standards.
    • ACCC and (temporarily) state/territory regulators can both ban and advise Minister to set mandatory safety performance or information/warning standards (hence covering more types of products than Japan? Although latter also encourages a voluntary product liability insurance scheme), including eg foods (konjac jelly stacks must not be smaller than 45mm in diameter, to reduce choking risks – no bans or standards set in Japan![4])Australia initiated a consultation on adding an EU-style General Safety Provision (as in EU, then Malaysia, HK, Macau and 2010 Canada, partially Singapore from 2011, and Thailand in 2019) but no progress; no discussion in Japan perhaps because CAA doesn’t even have yet powers to set mandatory safety standards for specific types of consumer goods?[5]
    CPSA amendment in 2006 (inspired by EU) requiring suppliers to report deaths or serious (hospitalised) injuries, as well as some risks (by Regulation: carbon monoxide emissions eg from gas fan heaters, and fires), to regulators; 2007 amendment also required notices to consumers to get some appliances (heaters) checked periodically
    • ACL introduced mandatory accident (but not risks) reporting in ACL 2010, but reports kept confidential to ACCC (and State/territory regulators)[6]
Consumer Safety Act 2009: channel accident reports (to local/central govt consumer centres, other depts, etc) to CAA, recalls etc if products found unsafe and not subject to other department laws (eg konjac jelly snacks!) but not to set mandatory safety standards (instead can eg urge other ministries to seek law changes to expand their jurisdiction and set standards). Also established Consumer Safety Investigation Commission under CAA, to (a) investigate causes of product-related injuries, (b) recommend actions (eg law reforms) but not liability (so like Japan Transport Safety Board)

Similarities of latter Commission with (ad hoc and semi-judicial) coronial inquiries in Australia (eg into Takata airbag deaths, op cit) or even (Royal) Commissions of Inquiry (under parliamentary supervision, so larger-scale problems)?

3. Consumer Contracts

Consumer Contracts Act 2000 inspired by EU: (a) pre-contract rules allowing broader termination rights than under the Civil Code (cf what became the 2005 EU Unfair Commercial Practices Directive – NB includes black list of worse practices), (b) regulations voiding unfair terms – some exclusion clauses, otherwise one-sided contrary to good faith principle (cf 1993 EU Unfair Terms Directive, but that has grey list of possibly unfair terms, unlike 2000 Act). Interestingly, several amendments re (a) specifying quite detailed types of transactions of concern (eg salespeople trying to use romantic infatuations or scaremongering about religion to secure contracts), but not re (b) where statute remains broad. Former maybe because higher profile and obvious or bigger problems (infecting entire contracts), making it easier for consumers / groups / CAA to mobilise, while (especially majority good) businesses prefer clarity.

  • Former NSW CJ Bathurst extra-judicially also noted that having some such guidance re (a) from legislators may also make it easier for courts to intervene to set aside contracts.[7]
    • But instead quite a push to add a new ACL prohibition on unfair practices generally (potentially wider than unconscionable or misleading conduct prohibitions)! Triggered partly by growth of e-commerce and use of “dark patterns” etc digitally[8]
Australian legislators (starting initially with Digital Services inquiries by PC etc) have enacted in 2022 comparatively unique powers of regulators to issue infringement notices and (larger) civil penalties if they think terms are unfair (and extended further 2016 amendment making terms unfair in many B2B transactions) and are consulting now about doing the same for mandatory performance standards in consumer contracts (also applicable to many B2B transactions, perhaps for political reasons), as relying on consumers enforcing ACL rights seems to have been insufficient.
  • Also likely to enact a super-complaints mechanism allowing certified consumer groups to get nominated regulators (eg ACCC, maybe also ASIC) to respond to evidence of serious / emerging consumer problems.[9]
    • Unlikely in Japan as consumer groups mostly smaller / less resources and regulators (even CAA) stronger even than in Australia in maintaining discretion, including over budget / resourcing?

ACCC latest report on digital platforms recommends they be required to have an external Ombudsman scheme free to consumers but with determinations only binding on the seller and platform[10] (like Banking and financial services or telecoms schemes, cf weaker scheme introduced more recently in Japan) which could also improve internal DR between users and the platforms

Unlikely in Japan but it has meanwhile new laws regulating some aspects of relationship between platforms and retailers, and requiring big platforms to take down products considered unsafe (inspired by laws on liability of platforms for defamation etc, and maybe new EU laws)


[1] https://consumer.gov.au/australian-consumer-law/consumer-policy-australia

[2] https://japaneselaw.sydney.edu.au/2022/05/the-interface-of-inquests-and-consumer-law-and-policy/

[3] Nottage, Luke R., ASEAN Consumer Product Safety Law: Fragmented Regulation and Emergent Product Liability Regimes in Southeast Asia (March 10, 2020). “ASEAN Consumer Law Harmonisation and Cooperation: Achievements and Challenges”, Cambridge University Press (2019), Sydney Law School Research Paper No. 20/13, Available at SSRN: https://ssrn.com/abstract=3551793

[4] Kawawa, Noriko, Jelly Mini-Cups Containing Konjac: Is a Warning Enough to Protect Vulnerable Consumers? (March 4, 2013). Australian Journal of Asian Law, 2013, Vol 13 No 2, Article 2: 135-152, Available at SSRN: https://ssrn.com/abstract=2228461

[5] Nottage, Luke R., Improving the Effectiveness of the Consumer Product Safety System: Australian Law Reform in Asia-Pacific Context (February 3, 2020). Journal of Consumer Policy (2020) 43:829-850, Sydney Law School Research Paper No. 20/05, Available at SSRN: https://ssrn.com/abstract=3530671

[6] Nottage, Luke R., Suppliers’ Duties to Report Product-Related Accidents under the New ‘Australian Consumer Law’: A Comparative Critique (May 4, 2010). Commercial Law Quarterly, Vol. 25, No. 2, pp. 3-14, 2011, Sydney Law School Research Paper No. 10/41, Available at SSRN: https://ssrn.com/abstract=1600502

[7] https://japaneselaw.sydney.edu.au/2019/11/guest-blog-launch-by-bathurst-cj-of-asian-law-books/

[8] See https://www.accc.gov.au/publications/serial-publications/digital-platform-services-inquiry-2020-2025/digital-platform-services-inquiry-september-2022-interim-report-regulatory-reform

[9] https://medium.com/@PhilipCullum/up-up-and-away-what-australia-can-learn-from-two-decades-of-uk-super-complaints-848e4469a748

[10] Ibid at https://www.accc.gov.au/publications/serial-publications/digital-platform-services-inquiry-2020-2025/digital-platform-services-inquiry-september-2022-interim-report-regulatory-reform