[Vale Richard Nottage] Guest blog: “The Tokyo International Military Tribunal: A Reappraisal”

[Editor’s updated note: My father Richard Nottage, former Secretary of Foreign Affairs and Trade of New Zealand (1991-9) as well as ambassador to Japan, Indonesia and Geneva (UN and WTO), died peacefully in Wellington on 11 October 2025, aged 85. After retirement in 2000 he was Deputy Chair of the Asia New Zealand Foundation and Inaugural Chair of the National Archives Council, as he was keenly interested in history especially in Asia. A full obituary is at https://www.legacy.com/nz/obituaries/thepost-nz/name/richard-nottage-obituary?id=59877600 and a video of Richard discussing the creation of the WTO is at https://www.youtube.com/watch?v=Rbu5Pvjs8SM. I am updating a blog posting below from 2011 in his memory, reproducing from https://www.nzlii.org/nz/journals/NZYbkIntLaw/2010/18.htmla book review we co-authored around then.]

[Original editor’s note: Below is an overview of an intriguing book with this self-explanatory title, reviewed by my colleague specialising in public international law, A/Prof Ben Saul; and a former Research Assistant at our Sydney Centre for International Law, Naomi Hart. Their Review was published in [2010] Australian International Law Journal 295-9. The full PDF version, including footnote references, is downloadable here.

My own Review of this book co-authored by Professor Neil Boister (University of Canterbury) and Robert Cryer (University of Birmingham), appeared in [2010] New Zealand Yearbook of International Law XXX. That Review [also reproduced below] is written with my father, Richard Nottage, who in the 1960s undertook post-graduate research into pre-WW2 Sino-Japanese political and economic history using primarily the full sets of Tokyo War Crimes Trial documentation donated to the University of Canterbury (by the New Zealand Judge on the tribunal) and to Oxford University. A shorter Review written by Richard alone, published in (November-December 2010) New Zealand International Review 27-28, is already downloadable here.]

The Tokyo International Military Tribunal: A Reappraisal

Neil Boister and Robert Cryer
[Oxford: Oxford University Press, 2008, 358pp. ISBN 978-0-19-927852-7 £63.50]

For 60 years there has been relatively little analysis in English of the International Military Tribunal for the Far East, abbreviated by the authors of this book as the “Tokyo IMT” because it conducted its war crimes trial in Tokyo over 1946-1948. This lack of attention to the Tokyo trial is true especially in comparison with its European counterpart, the Nuremberg trials over 1945-1946. There are several reasons for this, as suggested in this important new book (at pp 2 and 301). First, the extensive literature about the trial in Japanese is not well known outside Japan. Secondly, there is a degree of Euro-centrism in the scholarship on international criminal law. Thirdly, and uncomfortably for the Western powers, one Judge on the tribunal – Justice Radhabinod Pal from India – condemned atrocities by the Allies, especially the use of the atomic bomb. This dissension distinguished the Tokyo tribunal from its Nuremberg counterpart, which allocated blame exclusively to the Axis powers.

Given this lacuna in the literature on international criminal law and regarding the Tokyo IMT generally, a short explanation of the main aspects of the Tokyo War trial may assist. As helpfully outlined in chapter 1 of the book, the trial cannot be understood without some knowledge of the domestic politics and constitutional arrangements in pre-war Japan and their impact on Japan’s foreign relations from the 1920s – especially its expansion into Manchuria and China through the 1930s, Indo-China in 1941 and, after Pearl Harbor, into Malaya, Singapore, the Philippines, Indonesia and elsewhere in the Pacific. Atomic bombs were dropped on Hiroshima and Nagasaki on 6 and 9 August 1945 respectively. Russia declared war on Japan on 8 August and took over Manchuria. Japan surrendered on 15 August 1945, leading to the transformative US-led Occupation of Japan under a new Constitution.

The legal foundations for punishing Japanese aggression took on a tangible form when the leaders of the United States, China and the United Kingdom adopted the Potsdam Declaration of 26 July 1945, later adhered to by the Soviet Union.. This provided for the punishment of Japanese ‘war criminals’, but not expressly for the establishment of an international criminal tribunal, nor for the prosecution of crimes against peace. These came six months later through “a time-fractured procedure by which General MacArthur, Supreme Commander for the Allied Powers [SCAP], promulgated the Tokyo International Military Tribunal’s Charter”.. Initially by a Special Proclamation on 19 January 1946, he established the Tokyo IMT for “the trial of persons charged individually or as members of organisations or in both capacities with offences which include crimes against peace, war crimes and crimes against humanity”.

The Tribunal’s Charter provided for the constitution, powers and procedures of the Tribunal itself, based largely on the Nuremberg Charter, as explained in chapter 2 discussing the Tokyo IMT’s ‘nature and jurisdiction’. The bench consisted of eleven members nominated by the respective Allied powers: the United States, Soviet Union, the United Kingdom, China, France, the Netherlands, Canada, Australia (with Justice William Webb of the Supreme Court of Queensland serving as the Tokyo Tribunal’s President), New Zealand, India and the Philippines. A sense of the Judges’ different backgrounds emerges gradually throughout this book, but more clearly in chapter 10 reviewing “the Tokyo IMT and legal philosophy” (at pp 277-291).

Chapter 3 shows how the selection of the 28 defendants was a problematic aspect of the Tribunal’s preparatory work. Boister and Cryer’s view is that the selection was too broad, as Japanese officials were charged merely by virtue of their position without reference to the nature or extent of their individual involvement in the war effort. But it was also insufficiently broad, as many prominent Japanese military, political and industry figures – including the Emperor, as well as individuals who had engaged in biological and chemical warfare – were not charged. The indictment, drawn from the authority of the Potsdam Declaration, Japan’s Instrument of Surrender and the Tokyo IMT Charter, was not well managed and over-ambitious. It revealed the prosecution’s basic conspiracy thesis that Japan – dominated by a militaristic, racist clique – sought, along with Germany and Italy, to rule the world.

Hundreds of individual charges were laid, many duplicatory, for crimes against peace (chapter 5), murder (chapter 6) and war crimes (chapter 7). The majority of the Judges on the Tokyo IMT extended liability to individuals if they shaped or influenced a war of aggression, whereas the Nuremburg Tribunal required individuals to have controlled or directed the war. The Tokyo IMT also took an expansive approach to the count of murder, defined as killing as part of an illegal war, whereas subsequent tribunals have punished for murder only when this amounts to a war crime or crime against humanity. The authors disagree with the Tokyo IMT on both points when discussing its overall ‘legal legacy’ (pp 301-311); but they note that several of the principles it established regarding war crimes were later adopted by international tribunals, such as the liability of a commander if lack of knowledge of a situation was due to negligence. The authors also criticise several views of the Tokyo IMT on ‘general principles of liability and defences’ (chapter 8), especially the (still controversial) notion that mere conspiracy to commit crimes against peace was punishable.

Boister and Cryer support most widespread criticisms of ‘the conduct of the trial’ (chapter 4), including some apparent bias on behalf of some Judges – including President Webb. However, they note that subsequent international war crimes tribunals are “run, like the Tokyo IMT, largely on an adversarial process and also take a non-technical approach to evidence” (p 310). They also warn that experience from the Tokyo Tribunal shows that time and other pressures tend to build up in favour of loosening evidentiary rules once written witness testimony largely replaces oral evidence (p 311).

Lastly, when the Tokyo IMT concluded its deliberations in 1948, sentencing practices were undeveloped and the Tribunal had minimal guidance from its Charter (chapter 9). Of the accused, seven were sentenced to death, sixteen to life imprisonment, one to 20 years and one to seven years imprisonment. In 1958 the surviving parolees were released unconditionally.

The main aim of this book is “to provide a legal analysis of the Tribunal in the hope that it will help renew interest in the Tokyo International Military Tribunal and thus contribute to a fuller understanding of international criminal law”. It revisits “the very jaded view of the proceedings” taken in Victor’s Justice: The Tokyo War Crimes Trial1 by an influential political scientist, Richard Minear (p 1). In our view, the authors of the present work – experts in public international law from the University of Canterbury (Boister) and the University of Birmingham (Cryer) – have convincingly fulfilled their primary objective. Boister and Cryer conclude that the trial undeniably had “weaknesses in a number of areas”, but they succeed in showing that some of “its determinations of law are of continued relevance and worth” (p 2) for contemporary international tribunals and international law more generally.2

The authors also candidly note two limitations of their work, yet the book serves two corresponding and wider purposes. First, Boister and Cryer point out that they do not read or write Japanese and therefore were “unable to engage fully with that scholarship” (p 3) – although they acknowledge the great assistance provided to them by Dr Noboyuki Murai by “investigating, summarizing and discussing” aspects of that literature in Japanese.3 Similarly, the authors do not hold themselves out as scholars of Japanese law or politics. Yet their work is interesting from those disciplinary perspectives as well.

Discussing the ‘political legacy’ of the trial in chapter 11, Boister and Cryer suggest that if indeed a major purpose was to vindicate the Allied cause and condemn Japanese imperialism, then the Allied cause was not well served as “the perception was that justice was not done” (p 322). They acknowledge that some therefore have seen the trial as a political failure that contributed to resurgent nationalism, but suggest that recent literature shows how the trial was used in more complex ways within the Japanese political process. Students of Japanese politics will not be surprised at the latter perspective, as numerous other examples show how government and non-state actors within Japan often have used ‘foreign pressure’ (gaiatsu) to expand or create domestic forces (naiatsu) for achieving their own policy preferences.4

For scholars more interested in Japanese law, the work of Boister and Cryer also offers tantalising new perspectives. Discussing the “didactic function that some of the prosecuting states asserted was the reason for the trial”, they note that early evidence indicated that this was not being achieved – “the trial tended to be watched by the accuseds’ families, law students, and ‘courtroom habitués’, while it took SCAP pressure to ensure coverage in Japanese newspapers” (p 315). Yet the educational objective was not just to instruct Japanese citizens about good and bad forms of political or economic organisation. Presumably, it also aimed to reinforce a broader shift towards ‘Western’ rights-based legal order that commenced in earnest after Japan reopened fully to the world with the Meiji Restoration of 1868. A more targeted program of legal reforms was already well underway during the post-War Occupation, steered by American lawyers within SCAP, beginning with the drafting and enactment of a new Constitution in 1947 that incorporated US-style features such as judicial review of legislation and a Bill of Rights.5

That constitutional reform also continues to generate controversy among historians over the degree to which the outcome was imposed by ‘foreign pressure’, with another parallel debate about the Constitution’s contemporary significance reflected in calls for constitutional amendments.6 A major sticking point nowadays remains the ‘peace clause’ in Article 9. It provides that “the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes”; to that end, “land, sea, and air forces, as well as other war potential, will never be maintained [and] the right of belligerency of the state will not be recognized”. One wonders what reciprocal influence there might or should have been between the drafting of Article 9 and the trial then underway in the Tokyo IMT dealing with Japan’s crimes against peace.

Expansive interpretations of Article 9, resulting in Japan now having one of the largest armed forces (‘Self-Defence Forces’) in the world, began to emerge anyway from the Japanese government, some courts and commentators during the Korean War, and especially from around 1960 when the Japan- US Treaty of Mutual Security and Cooperation replaced the bilateral treaty of 1951.7 This arguably flexible approach to constitutional law interpretation had a major impact on jurists interpreting other legal norms in Japan, especially tort law and other provisions in the Civil Code, where a ‘balancing of interests’ approach to applying the law (rieki koryo-ron) became increasingly influential.8 As a whole, Japanese law remained comparatively open-textured during much of the post-War period. This may have undermined a strict version of the ‘rule of law’, although some argue that it supported community norms – both good and bad – better than in more legalistic societies such as the United States.9 Yet there has also been a strong undercurrent of more formalist or positivist approaches to law among jurists in Japan. A deluge of statutory amendments as well as large-scale reforms to the justice system over the last decade or so may favour that counter-tendency.10 Intriguingly, Boister and Cryer remind us that similar jurisprudential debates were apparent on the international law plane in Japan from the days of the Tokyo War Crimes Trial. The tension existed not only among the Judges on the tribunal, but also among the counsel. The leading American prosecutors adopted an avowedly ‘natural law’ approach, while most defence counsel – especially the Americans – responded with more formalistic arguments (pp 272-277).11

The second self-confessed limitation of the work by Boister and Cryer is that they are “lawyers, not historians” and that “the history and conduct of Japan in the run-up to and during World War II is highly controversial” (p 1). They do not enter substantively into those controversies. But the book is also valuable for those interested in this history. It draws renewed attention to a voluminous and unique body of documentation of great historical importance that sheds much light on Japan’s domestic politics during 1928-1945 and on its external relations in the Asia-Pacific region (especially with China) and globally. Speculating on the trial’s ‘historical legacy’, the authors observe that “an often overlooked aspect of the Tokyo IMT’s proceedings and their contribution to history is their record of evidence heard, rather than the judgments themselves”.. They also note the irony that “one of the things that the Tokyo IMT has frequently been criticized for, the admission of documentary evidence over live testimony, is one of the reasons its proceedings have historical value” – and indeed some present-day relevance (p 314).12

Indeed, for New Zealanders with a sense of history, the Tokyo IMT proceedings and their documentation have a particular significance. In 1962, as a Charles Upham scholar at Canterbury University, one of the present reviewers (Richard Nottage) wanted to write a thesis towards an MA (Hons) on some aspect of the Pacific War. The professor of history, Neville Phillips, suggested that the IMT papers might provide a basis for this. After the Tokyo IMT trial ended, the New Zealand nominee on the tribunal, Justice Erima Harvey Northcroft, had donated his nearly complete set of trial documents to the then Canterbury University College. In a letter of 27 January 1949 to the chairman of the Canterbury University College Council, conveying his bequest, Justice Northcroft wrote: “these [records of the trial] are not likely to be of value or interest to ordinary degree students, but may be of assistance to research students both in International Law and, more particularly, in History”. The bequest, one of the most complete sets of IMT documents in the world, contains some 380 volumes and 110,000 pages. In 1962, it was housed in several rooms of the old, then unused, Ilam homestead, which is now the University’s staff club.

The late Professor S A M Adshead, who had arrived recently from the UK to take up a lecturership in history, was assigned as thesis tutor to Richard Nottage. C W Collins, the Librarian, made the papers available and provided keys to the homestead. Adshead devoted weeks of his own time assembling the tribunal papers into an orderly form, and provided much valuable guidance and advice as Richard wrestled with a thesis entitled China and Japanese Politics 1934-39. Richard spent several months in 1962 alone in the grand old mansion, and was probably the first student or staff member to utilise this unique archive. Subsequently, in 1963-1965, he used the UK set of IMT documents while a post-graduate scholar at Oxford University, producing a thesis on the establishment of Japanese puppet governments in China (1935-1940) which was supervised by the late Professor Richard Storry. At that time little was known or written about the various ultimately unsuccessful attempts by local Japanese armies in China to establish puppet regimes there. Yet Japan’s political failure in China was a major cause of the Pacific War.

The Northcroft Collection was ‘re-discovered’ in 2005 by the manager of the Macmillan Brown Library, Jill Durney, and Jeff Palmer, the library archivist. They recognised its significance. It was inscribed recently on the Regional (Asia/Pacific) Register of UNESCO’s Memory of the World Programme, the first item from New Zealand to receive such recognition and a testament to the enormous value of the collection. It has also been identified as Canterbury University’s most urgent e-heritage project for archival scanning and full text digitisation.13 This will be of immense benefit for scholars and others in New Zealand, the Asia-Pacific region and beyond, as they seek to understand the on-going historical debates as well as the divisions and ambiguities in Japan about its culpability in the war. Fortunately the original Collection has survived the devastating earthquake that struck Christchurch on 22 February 2011.

Researchers in the history of international law should also note that there is a small selection of Tokyo IMT and related papers published in New Zealand in 1982.14 Of special interest amongst these is a paper assessing the Tokyo Tribunal dated 8 April 1949 written by the assistant to Justice Northcroft at the Tokyo trial, the late Quentin Quentin-Baxter. (He later served as a New Zealand diplomat, including a posting back to Tokyo; as professor of international and constitutional law at Victoria University of Wellington; and on the UN International Law Commission.15) Quentin-Baxter’s paper is a more succinct version of the lengthy report Justice Northcroft sent to New Zealand’s Prime Minister in March 1949, in which, amongst other things, he advocated the establishment of a permanent international criminal court. Quentin-Baxter wrote:

It is, therefore, one of the most important results achieved by setting up the Tokyo Tribunal that it conducted an historical enquiry into the actions of Japan and ascertained the proximate causes of those actions. There is set upon its findings a seal of authority and impartiality which cannot attend the work of any historian of recent events; for the Tribunal’s decision was reached upon all the available evidence and after the fullest opportunity had been afforded for the presentation of opposing views.

Readers of The Tokyo International Tribunal: A Reappraisal will be able to come to their own judgments on this particular conclusion. Overall, this meticulously well-researched, well-structured and generally well-written book certainly deserves a wide readership – not just among its primary target audience of international lawyers, but also among students of Japanese history, politics and law.

Richard Nottage CNZM; Deputy Chairman, Asia New Zealand Foundation; Chairman, Archives Council; former New Zealand Ambassador to Japan and Secretary of the Ministry of Foreign Affairs and Trade

Luke Nottage Associate Professor, Sydney Law School; Comparative and Global Law program coordinator, Sydney Centre for International Law (SCIL); Director, Centre for Asian and Pacific Law at the University of Sydney (CAPLUS);
Co-Director, Australian Network for Japanese Law (ANJeL)

This review draws partly on a shorter book review by Richard Nottage published in (November-December 2010) New Zealand International Review 27-28.

Continue reading “[Vale Richard Nottage] Guest blog: “The Tokyo International Military Tribunal: A Reappraisal””

Pursuing legal careers in Japan

[Update of 25 October 2025: the videorecording (and transcript) of this event can be found here or via the Sydney Law School youtube channel]

In this lunchtime seminar at Sydney Law School on 6 August, organised by the Australian Network for Japanese Law (ANJeL) with light lunch provided by CAPLUS, Japanese legal professionals will speak about their experiences, and discuss possible avenues to pursue a legal career in Japan.

ANJeL Visiting Judge Hiroyoshi Kimura will explain how law students become lawyers and judges in Japan.

Nagoya University Professor Tomoko Ishikawa will outline her experiences also as a judge and foreign ministry legal expert, plus student exchange opportunities and experiences

Mori Hamada & Matsumoto partner Naoki Ishikawa will explain how Australian law graduates have worked in his large law firm

ANJeL co-director Prof Luke Nottage will provide a Zoom interview of Inpex Senior Legal Counsel Joel Rheuben (USydney LLB/BA then uTokyo LLM graduate, who competed in Japanese in Tokyo’s INC negotiation and arbitration moot competition “Team Australia” that won two decades ago).

Wednesday 6 August 2025, Time: 12.45-1.45pm (Light lunch to be provided 15 minutes prior)

Venue: Boardroom, Level 4, New Law Building, Eastern Avenue, University of Sydney, Camperdown campus

Please register via: https://www.eventbrite.com.au/e/pursuing-legal-careers-in-japan-tickets-1426116636249

Rising and misleading electricity bills

So far in 2025, Japan has seen minor increases in electricity prices from April (partly after comparatively small subsidies were suspended) and minor decreases from July (as they are reinstated). But Australia will see yet another much higher hike as its new financial year begins from July. The ABC, Australia’s equivalent of NHK, ran a segment on this for a news report on its 730 TV news show on 30 June 2025. The broadcast incorporated parts of an interview with me at home (plus some nice drone footage), including my recommendation that an energy supplier should automatically put their customers on any better plan – as I discussed a year ago here.

The news report also mentioned that I had complained through Choice (Australia’s peak NGO for consumers) to the consumer regulator about my electricity bills. That triggered Choice’s empirical inquiry uncovering widespread allegedly misleading bills being issued by Australian electricity suppliers, contrary to s18 of the Australian Consumer Law. Choice has filed its first-ever “designated complaint” requiring the ACCC to investigate further and notify publically whether or not it will pursue suppliers for such violations. Here, via Choice’s announcement, are some more details of the problem:

“… Luke, an academic specialising in consumer law, had a similar experience with EnergyAustralia. He received a bill that was 31% higher than the same quarterly billing period a year earlier, even though his energy usage hadn’t changed. 

The bill said he could save $617 a year if he switched to the ‘Flexi Plan (Home)’ offer, which was the name of his current plan. Apparently he should have switched to this new version of the plan earlier. 

“Eventually I got through to someone at EnergyAustralia and discovered they had a new plan with the same name but better terms,” Luke says. “I couldn’t resist telling them I think their bill’s wording is misleading.” 

Asian International Investment Agreements (IIAs) and Arbitration

Two of my recent articles in this area are now freely available in Open Access. The first below develops with Nobumichi Teramura an empirical argument comparing corruption-related provisions in IIAs across Asian states, including Japan as a very interesting case, building on our co-edited 2024 book. The other looks at wider regional developments around dispute resolution mechanisms in such agreements, including more focus on Australia. Both states have an opportunity to show regional and indeed global leadership for such mechanisms.

  1. Nobumichi Teramura, Luke Nottage, Corruption-related provisions in East and South Asian investment agreements: an empirical analysis, Journal of International Economic Law, 2025; jgaf013, https://doi.org/10.1093/jiel/jgaf013

This article analyses two types of provisions relevant to corruption in Asian international investment agreements (IIAs): clauses requiring (host) states to enforce anti-corruption laws and clauses that protect foreign investments made in accordance with host state laws. It tests whether IIA drafters act rationally regarding such clauses, or instead show status quo or other biases. This is complex first because rational strategies should depend on whether the state is a net exporter of foreign direct investment (FDI) or a net importer, but we explain how determining this status may be difficult. Secondly, rational strategies should depend on the relative extent of corruption in each state and, somewhat relatedly, the extent of inbound FDI claims. Despite such complexities and some instances of more ‘bounded’ rationality, overall states seem to be drafting both types of clauses rationally—even, and indeed especially, the net-FDI-importing states that tend to be transitioning economies. Adding to that empirical result from a more normative perspective, the article helps identify factors that could or should be considered by future IIA drafters, international bodies, or others tracking the trajectories of IIAs and corruption in Asia and beyond.

2. Luke Nottage, Australia’s Ambivalence Again Around Investor-State Arbitration: Comparisons with Europe and Implications for Asia, ICSID Review – Foreign Investment Law Journal, Volume 39, Issue 2, Spring 2024, Pages 320–346, https://doi.org/10.1093/icsidreview/siae029

In late 2022 Australia’s new Labor government declared that it would no longer agree to investor-State dispute settlement (ISDS) in future international investment agreements (IIAs). Section I reviews its previous anti-ISDS stance (governing with the Greens over 2011 to 2013) inspired by more articulated policy rationales but also the first claim against Australia, over tobacco plain packaging legislation. Then followed the centre-right coalition government’s return to including ISDS on a case-by-case assessment (2014–21) drawing partly on different arguments and evidence. Section II suggests that a new factor behind the latest policy shift comprises a second set of significant ISDS arbitration claims against Australia, from the Singaporean subsidiary of an Australian mining magnate and right-wing political leader. Section III draws parallels with the European Union (EU), whose developed economy member States reacted to inbound ISDS claims by replacing traditional ISDS from 2015 with an ‘investment court’ hybrid process, then influencing multilateral ISDS reform negotiations. Intra-EU ISDS claims are also being precluded by the Court of Justice of the EU, but in the context of European law and institutions providing an alternative pathway for European investors to hold other member States to account. Section IV considers the implications of Australia’s anti-ISDS stance for ongoing and potential IIA (re)negotiations with the EU and Asian States, including the feasibility of moving towards an EU-style investment court approach in Asia-Pacific IIAs. Section V concludes by linking these developments to ongoing debates about reforms to ISDS—locally, regionally and globally—as well as about incomplete investment IIAs.

“The Promises and Pitfalls of International Commercial Arbitration”

[This the abstract for my judicial training lecture organised by the Legal Training and Research Institute, kindly invited by the Supreme Court of Japan, delivered on 5 March 2025 at the Tokyo Facilities for Arbitration Hearings. Powerpoints are available in English and translated into Japanese. An edited, updated and footnoted version of the transcript is forthcoming in the Japan Commercial Arbitration Journal (2025).]

Survey and other evidence typically identify many advantages of international commercial arbitration (ICA) over cross-border litigation. This explains why ICA is overwhelmingly the most preferred dispute resolution mechanism included in international commercial contracts (and even investment treaties). Yet ICA faces growing problems.

Enforceability of arbitration agreements and awards is challenged by new Hague Conventions for enforcement of judgments, and by the 2018 Singapore Convention for enforcing mediated settlements, although these instruments still have few ratifications. Neutrality and related expertise of arbitrators encounter rising challenges to arbitrators and the emergence of international commercial courts, notably in Singapore. Confidentiality in arbitration is not uniform and anyway can increase unpredictability, as well as making it harder for users to assess if arbitrators and lawyers provide good value for their services. Limited discovery of documentary evidence and other flexibility in arbitration procedures is offset by the proliferation and hardening of “soft law” instruments and standardised practices. The lack of appeal for error of law promises finality in awards but arbitration overall is not much quicker, cheaper or more amicable than litigation of commercial disputes.

This lecture elaborates such promises and pitfalls of ICA nowadays. It considers what could be done to improve the environment for ICA generally, enhancing traditional advantages while reducing costs and delays, in the context of countries like Australia and Japan that have struggled to attract ICA cases.

Related reading:

Redesigning Consumer Law for the E-Commerce Era: Insights from Comparing Australia and Japan

Written by: Luke Nottage (University of Sydney) and Souichirou Kozuka (Gakushuin University, ANJeL-in-Japan program co-convenor)

Leading up to Australia’s federal election due by May 2025, the Commonwealth Treasury has (re-)initiated public consultations into reforms to the Australian Consumer Law (ACL), partly responding to the growth of e-commerce especially since the COVID-19 pandemic. Two main consultations in fields outlined below, compared to regimes in Japan, highlight some intriguing features for policy debate – extending also into the wider Asia-Pacific region.

First, unlike consumer laws in most jurisdictions across Asia, the ACL has already come to apply to many business-to-business (B2B) transactions. A typical economic argument is that this levels the playing field so businesses compete transparently and consumers have more trust in the market. However, there is a risk of individual consumers cross-subsidising through higher overall prices the businesses gaining similar protections. An additional political dynamic may be that Australia has often closely-fought elections, and many small businesses pressing for the same protection as individual consumers.

Secondly, the federal consumer affairs regulator, the Australian Competition and Consumer Commission (ACCC) and State or Territory regulators also have comparatively strong enforcement powers. Thirdly, the ACL and some proposed reforms highlight whether consumer law can and should rely on generally worded standards, more specific rules, or both.

Australia’s Treasury last year renewed a consultation into whether the ACL should add further prohibitions on unfair commercial practices, to address burgeoning concerns such as ‘subscription traps’ (suppliers making it much harder to cancel subscriptions than to sign up). Such practices are not easily covered by the ACL’s prohibition on misleading conduct by any suppliers ‘in trade’ (hence also B2B, since the 1970s). Nor do they usually fall within the broadly worded prohibition on unconscionable conduct, taking advantage of particular vulnerable groups (gradually extended to B2B since the 1990s).

The latest Treasury-led proposal sought further views on adding both a general prohibition on unfair practices (for example as in the EU, but there limited to business-to-consumer or B2C transactions, ie involving an individual transacting with a supplier for a non-commercial purpose). It also discussed specific prohibitions (as with legislation recently added in Germany, the UK and the USA against subscription traps). Regulators like the ACCC would enforce such new prohibitions in both B2B and B2C situations, including through injunctions, as for unconscionable or misleading conduct and specific types of prohibited misrepresentations.

Japan’s comparable regime instead regulates only B2C transactions and has come to preference specific prohibitions. The Consumer Contracts Act 2000 allows consumers to cancel contracts arising from some types of misrepresentations, plus various very specific situations of unconscionable advantage-taking. Business associations argue that a broader general provision would be very hard to comply with.

Extra challenges for consumers arise because injunctions against suppliers’ bad advertising and practices leading into contracts can only be brought through government-certified consumer NGOs. This system was inspired by German law but Japan’s NGOs are very small and under-resourced. Further, because the Consumer Contracts Act applies only B2C, it is hard to generate sufficient momentum among claimants, and hence case law.

The Consumer Affairs Agency, when established independently in 2009, assumed jurisdiction from the Japan Fair Trade Commission (the competition regulator) only to enforce the Act against Unjustifiable Premiums and Misleading Representations that prohibits representations promoting the quality of goods or services as ‘significantly superior’ or describing trade terms as ‘significantly more advantageous’ than they actually are.  Particular bad practices are also regulated by the Designated Commercial Transactions Act (as it was renamed from the Door-to door Sales Act in 2000), for example allowing ‘cooling off’ (withdrawal rights) for consumers in high-pressure situations like door-to-door selling or buying. Besides administrative orders now issued by the Agency, criminal penalties can be imposed for not providing contracts in writing or alerting consumers to such rights.

A second major Treasury consultation in Australia from 2024 asks for further views on whether regulators should be able to issue civil fines on suppliers failing to give ACL remedies for minimum performance standards in contracts (‘consumer guarantees’, as in New Zealand and Malaysia, but extending to some B2B situations). These require goods to be of ‘acceptable quality’ and services to be provided with due care. Since 2023, Australian regulators already have such a power to fine for first-time use of unfair terms in standard-form contracts. From 2016, regulation of such terms was extended to contracts with  ‘small business’, including now some medium-sized ones.

Adding such civil pecuniary penalties was seen as more effective than relying on injunctions to stop misuse of unfair terms, and/or consumers proving they are unfair so are void. This innovation, adding public sanctions, is despite Australia gradually introducing from the 1990s a US-style ‘opt-out’ class action system. That was premised on lawyers (perhaps with third-party litigation funders, allowed since 2006) might efficiently aggregate smaller value claims (such as excessive and therefore unfair bank fees). Yet even this regime seems to have been insufficient to prevent the spread of unfair terms, including in online businesses.

Japan’s Consumer Contracts Act similarly voids a few specific types of unfair terms. It does have also a general provision voiding others where contrary to good faith (ie unreasonable, compared to general Civil Code default provisions for contracts). However, business associations are opposed to listing in the Act even a ‘grey list’ of further contract terms that may be unfair, as in the ACL (and the EU law on unfair terms that influenced Australia, as well as partly Japan).

Furthermore, Japan’s Act again applies only B2C, although there is also some weak regulation of standard form terms extending to B2B under Civil Code amendments for contracts concluded after 2020. Injunctions to prevent misuse of unfair terms are only possible through certified NGOs, not consumer regulators, and the latter cannot issue fines. A class action regime introduced in 2013 also requires coordination through certified NGOs (not eg a law firm), and inefficiently requires individual consumers to opt-in to claim damages if and when a court finds liability for a class. Unsurprisingly, few claims have been made so far.

Despite these comparative limitations on consumer protection law in Japan, the practical outcomes in Australia may not be so different until recently, thanks to better customer service and reputational effects in Japan. However, the explosion in e-commerce and new types of marketing or practices, as well as possible transplantation of unfair terms into online contracts, may lead to a stronger message being sent to Japan (and Asian countries like Singapore, similarly lacking a broad unfair practices prohibition). This could be achieved by law reforms extending protections to some B2B situations, beefing up generally worded and/or specific prohibitions, expanding powers of regulators (for injunctions and even fines), and/or moving to a US-style opt-out class action system. However, the compliance costs and chilling effects on business innovation also need to be weighed carefully.

Regulating ‘subscription traps’ and other unfair commercial practices

Happy New Year of the Snake!

In my presentation on 5 December 2024 at the annual Australasian Consumer Law Roundtable, hosted by Deakin U in Melbourne’s CBD, presented an updated version of my 2024 CCLJ article with Prof Souichirou Kozuka comparing consumer law administration, contracts and product safety. I mentioned my Submissions (linked below) to three recent federal Treasury-led public consultations (perhaps prompted by a general election due by May 2025!) into (i) facilitating the Australian government adopting foreign standards for minimum safety of specific goods, (ii) adding civil pecuniary penalties for consumer guarantee remedies not provided by suppliers (including regarding safety, as an aspect of “acceptable quality” for goods), and (iii) a generic unfair commercial practices prohibition. Japanese consumer law has none of these features, but each raises interesting issues.

Relatedly on 6 January 2025, perhaps a slow day for the news (after the excitement of Australia winning a test cricket series against India!), I was quoted in an ABC article focusing specifically on Subscription Traps, whereby suppliers make it easy for consumers to sign up (sometimes including “free trials”) but hard to cancel subscriptions. This led to a 3AW radio morning interview (7-minute recording here) with Tony Jones in Melbourne, where I talked about the trap experienced with The Economist (elaborated in my Submission available here for the first Treasury-led consultation in 2023 on adding a general unfair trading prohibition to the Australian Consumer Law, and in this 21 August 2024 interview with SBS Radio: podcast and transcript here). And then an ABC Radio interview (14-minute recording here) with Lisa Pelligrino in Sydney, where I talked in a spirit of bilateral fairness about the trap experienced more recently with The Japan Times.

Momentum seems to be building for ACL amendments to regulate generally against unfair trading practices, and specific practices such as subscription traps, adding to the chorus of concern expressed also eg at the annual Consumer Law Congress in mid-2024.

UNCITRAL RCAP Symposium: Navigating transparency and confidentiality in international arbitration

Guest blog written by: Keona Febrian (CAPLUS research Intern, 2024)

The University of Sydney Law School was honoured to host the UNCITRAL RCAP Symposium: Navigating Transparency and Confidentiality in International Arbitration [podcast here] alongside UNCITRAL Regional Centre for Asia and the Pacific (RCAP), in collaboration with UNCITRAL National Coordination Committee for Australia (UNCCA), the Sydney Centre for International Law (SCIL), and the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS).

The symposium provided new insights into the obstacles and advantages transparency and confidentiality in international arbitration. Organised in collaboration with UNCITRAL, the event featured Ms. Athita Komindr, Head of UNCITRAL RCAP, along with renowned scholars and practitioners Prof. Luke Nottage, Dr. Caroline Kenny KC, and Mr. Nick Gallus to share their expertise. Associate professor Jeanne Huang offered expert commentary, providing her perspective on how these developments shape the rising growth of arbitration a digital era. Moderated by Ms. Inma Conde, the Secretary of UNCCA, the symposium delved into the complexities, challenges and benefits of this evolving legal field.

Ms.Athita Komindr, the head of UNCITRAL, started with a short introduction on the event itself. This symposium was part of a global event to highlight the significance of emerging legal instruments in creating favourable environments in resolving cross-border disputes. Ms.Athita continues with discussing UNCITRAL transparency standards and how it was the first successful endeavour to reform investor and state disputes. These standards focus on providing transparency in disputes while balancing it with the need for confidentiality in private matters to increase participation overall.  The UNCITRAL arbitration rules has recently adopted a new article 1(4)  in relation to its application. Ms.Athitha discusses how together, the UNCITRAL rules on transparency and the Mauritius Convention on Transparency, takes into account both the public interest in investor-state dispute settlements. Following the adoption of the standards, there is an increase in transparency in disputes.

Professor Luke Nottage discussed the tensions of transparency in arbitration, highlighting Australia and Japan specifically (selecting key Powerpoints here). He addressed the expectations of transparency, particularly in Asian international commercial arbitration. International commercial arbitration is still the preferred method of resolving disputes over litigation due to its confidentiality, transparency and speed advantages. However, this confidentiality can be a double-edged sword, decreasing cost and delays but potentially contributing to an information-asymmetry.  He discussed the Mauritius convention, starting with the struggles of getting it ratified in Asia. He highlighted that the regime may be perceived as not being complementary to the more authoritarian regimes in Asia and that because of how much time had already passed, the convention may cover less treaties now – suggesting the need for a new Protocol. He also provided a short case study on Zeph’s Investment Treaty arbitrations between Clive Palmer’s Singapore-incorporated company and the Government of Australia where it showed that transparency can benefit efficiency

Next, Dr Caroline Kenny spoke about balancing confidentiality and transparency in international arbitration. Kenny noted how the confidentially and transparency are often viewed as mutually exclusive and that confidentiality and privacy are often merged as one concept. The vast majority of jurisdictions  do not implement transparency as part of the arbitration, withholding the publication of the final result of such resolutions. She continues by explaining how transparency is especially sought after in Investor-state arbitrations because of how it deals with the wrongful behaviour of states.  The session featured the importance of having modern law address confidentiality and transparency , but how the law struggles with this as it is a modern reproduction of the 1976 arbitration laws which was silent on  confidentiality and how confidentiality was viewed as an implied practice in arbitration due to its nature of being a confidential process. Modern law has failed to address confidentiality due to a lack of uniformity across national and arbitration rules on the matter. Jurisdictions such as England and Singapore view confidentiality as a fundamental aspect of arbitration, while Sweden views it as important but not legally binding.

Nick Gallus covered the topic on confidentiality and transparency in contractual arbitration involving the State, proposing that in these matters confidentiality is not neglected. He started with echoing Professor Luke Nottage’s discussion of the Zeph’s arbitration and talked about how this arbitration originated from a prior contractual arbitration. He continued by discussing his personal experience facing a party that had used confidentiality in arbitration as a sword by restarting the same case with the same parties in a different arbitration court, citing that Res judicata was not triggered because the first arbitration was confidential. Gallus explained how the origin of developing the Mauritius Convention was based on significant public policy considerations that could potentially lead to large monetary liabilities for public treasuries, citing these as reasons often given for transparency in investment treaty arbitrations. These factors are also applicable to contractual arbitrations.

 Associate Professor Jeanne Huang closed the symposium with a talk on transparency and confidentiality in the National Administration along with a summary of the key takeaways. She focused on a consensual approach vs mandatory law approach in implementing transparency and confidentiality. Further, she established that the issues surrounding transparency and confidentiality goes beyond the disputing parties’ interests, it revolves around the actual jurisdiction’s legal, government systems and public concerns. Professor Jeanne Huang added to the topic her own expertise in privacy, which means personal information protection, connecting it to the main topic as explaining that arbitrations and dispute resolution as a place to process and understand information.

The symposium was an insightful discussion on how transparency and confidentiality can work together to create an efficient and pleasant environment for arbitrations, both government and private arbitrations. It focused on key challenges in being implemented in more jurisdictions and the potential ways to get around it. Public policy implications and accountability seem to be a major factor in transparency for investor-state arbitrations. Each speaker stressed that transparency requirements should be tailored to each jurisdiction and that collaboration is required to promote larger legal discourse surrounding this topic. It concluded with an hopeful view of the future developments in arbitration.

A recording of the session can be found at: https://www.sydney.edu.au/law/news-and-events/podcasts.html

Guest Blog: “A new explanation of China’s patenting phenomenon with a focus on the patenting of traditional medical knowledge”

Written by: Corinna Chen (CAPLUS research assistant, 2024)

On 2 September 2024, Melbourne Law School lecturer and researcher Dr Ben Hopper presented a thought-provoking seminar on the patenting of traditional medical knowledge in China and its contribution towards China’s patent boom phenomenon. The event was hosted by Sydney Law School’s Centre for Asian and Pacific Law (CAPLUS) as part of its ongoing PhD/Early Career Researcher presentation series. Dr Hopper’s thesis offered a fresh perspective on the broader motivations and societal trends behind the growing number of patent applications for traditional medical practices, particularly in China’s southwestern province of Guizhou, challenging more conventional explanations based on strengthened patent laws, state subsidisation, research and development intensification and increases in foreign direct investment.

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Dr Hopper began by outlining the historical development of China’s patent laws, from early attempts during the Qing Dynasty to the establishment of the country’s first modern patent law in 1984. He highlighted how China’s unique legal landscape, influenced by Marxist economics and socialist characteristics, has shaped the evolution of its patent system. This paved way for the ensuing discussion on the “patent boom” that has seen China become the world’s leading filer of patents, with an extraordinary level of growth occurring from the late 2000s into the early 2010s.  

The core of Dr Hopper’s research thesis lies in his claim that traditional explanations for China’s patent boom – such as research and development (R&D) intensification, foreign direct investment (FDI), and patent subsidies – are incomplete. He argues that the epistemological shift in individual perspectives, led by the intense commoditisation of the economy, is a critical yet often overlooked factor. He further hypothesises that there exists a positive correlation between an individual’s marketisation (that is, how market-oriented a person is) and their ‘patent grip’ index (the likelihood of engaging with the patent system and complying with patent laws), with the individual’s proximity to the State being an enhancing factor.

Using original fieldwork data from 53 traditional medical practitioners in Guizhou, Dr Hopper found statistically significant results in support of his hypothesis that more market-oriented individuals are more likely to be subject to the patent grip. In particular, the case study focused on how traditional medicine practitioners in Guizhou, many of whom belong to ethnic minorities, navigated the patent landscape. Dr Hopper’s mixed-methods research, combining surveys and qualitative interviews, revealed that market exposure influences how these practitioners increasingly view their traditional knowledge as commodities that can be protected, sold, or licensed. This shift in perspective aligns with a broader trend towards the commodification of knowledge in China’s rapidly evolving market economy.

Dr Hopper’s findings challenge assumptions that traditional medical knowledge is inherently resistant to patenting due to cultural norms of secrecy and communal ownership; instead, they suggest that even within the realm of traditional knowledge, market forces and closer relationships with the state play a vital role in driving patenting activity.

At the end of the presentation, Dr Olugbenga Olatunji from Sydney Law School offered insightful commentary on the unique nature of China’s patent phenomenon compared to other developing countries such as India, where similar population levels and much stronger patent legislation have not produced comparable results in terms of the ‘boom’ observed in China. Dr Olatunji also raised interesting questions about how traditional knowledge is protected, shared and commercialised in China, pointing to inherent conflicts between customary practices in the field and the more stringent legal requirements of full disclosure in patent applications.

The session concluded with a lively discussion on the broader policy implications and potential transferability of the Chinese model in other countries navigating through similar issues, with one example raised being the approach towards traditional and Indigenous knowledge in Australia.

Guest Blog – Corruption and Investment Arbitration in Asia: New Frontiers

Written by: Corinna Chen (CAPLUS research assistant, 2024)

On 1 August 2024, the University of Sydney Law School hosted an insightful seminar jointly presented by its Centre for Asian and Pacific Law (CAPLUS) and the Australian Network for Japanese Law (ANJeL). The event featured the local re-launch of a new book titled Corruption and Illegality in Asian Investment Arbitration (Teramura, Nottage and Jetin eds, published in Open Access in Springer’s Asia in Transition series in April 2024) as well as discussions on the latest research in the field.

Professor Simon Bronitt, immediate past Dean of Sydney Law School with personal research interests in criminal law and Indonesia, opened the session with a brief welcome and address. Assistant Professor Nobumichi Teramura from Universiti Brunei Darussalam – lead co-editor of the new book – then presented an overview of the book’s aims, research questions and key findings (also summarised in a recent piece here and in the East Asia Forum). Professor Luke Nottage from the University of Sydney, also co-editor, complemented this by sharing empirical results from his recent research on corruption-related provisions in international investment agreements (IIAs).

Various other contributing authors also spoke on their areas of focus within the book. These included Professor Vivienne Bath from the University of Sydney discussing China and the Hong Kong SAR, Professor Simon Butt from the University of Sydney and Antony Crockett from Herbert Smith Freehills (Hong Kong) discussing Indonesia, as well as additional commentary from Dr Amokura Kawharu, President of the New Zealand Law Commission. The seminar concluded with closing remarks from the Honourable Wayne Martin AC KC, former Chief Justice of Western Australia, who officiated the book re-launch.

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Despite avid efforts to combat corruption through international treaties and domestic legislation, corruption and illegality in foreign direct investment (FDI) remains prevalent across many Asian countries. Associate Professor Teramura highlighted this as the key motivation behind the project, emphasising the book’s focus on illustrating ‘Asian’ perspectives towards corruption in investment arbitration and exploring the potential for significant Asian states to become ‘rule makers’ rather than ‘rule takers’ in this field (PDF of Powerpoints here). 

The research examines the practical impacts of corruption on FDI and local economies in Asia, as well as how illegality in foreign investment projects and disputes have been dealt with across various Asian jurisdictions such as China, Hong Kong, India, Japan, Lao Republic, the Philippines, the Republic of Korea and Thailand. Associate Professor Teramura noted that while some ‘Asian approaches’ are emerging, they are still far from establishing a uniform stance across the region.

The book concludes by proposing a roadmap for developing a more cohesive Asian approach. This includes establishing a regional forum for discussing FDI-related corruption, developing unified rules for handling corruption in investment arbitration, and considering the creation of an independent institution or permanent court to address allegations of corruption in Asian investment disputes.

Following this, Professor Luke Nottage presented compelling insights from his recent paper co-authored with Associate Professor Teramura: “Corruption-related Provisions in East and South Asian Investment Agreements: An Empirical Analysis” (PDF of Powerpoints here). The study revealed a nuanced and often rational approach by Asian countries in negotiating bilateral investment treaties, particularly in their treatment of anti-corruption provisions and legality clauses. 

The research found that net FDI-exporting countries like Japan tend to prefer anti-corruption provisions (59%) over direct legality clauses (16%) in their IIAs, aligning with the aim to reduce corruption in investment destinations and protect their outbound investors. Conversely, net FDI-importing countries such as China are more likely to include legality clauses (95%) and almost no anti-corruption provisions, as the former can be invoked to protect their government and domestic taxpayers from inbound ISDS claims. Overall, the empirical analysis found largely rational treaty drafting practices around these two types of provisions across most countries, based on their FDI status. 

However, Professor Nottage noted some curious exceptions to this rationality, particularly in the case of Singapore. Despite being virtually corruption free, Singapore rarely includes anti-corruption provisions in its IIAs (only 4%) but retains many legality clauses (61%). This apparent irrationality might be related to Singapore’s outbound FDI often coming from government-linked companies. Such instances of “bounded rationality” or status quo bias provide valuable insights for policymakers and IIA drafters, emphasising the need to consider these complex dynamics when addressing corruption and illegality in international investment frameworks. He concluded with the observation that although most countries appear to be acting rationally with regard to their national interests, such approaches may not be entirely conducive towards addressing the overall prevalence of corruption in the Asian region. 

Professor Vivienne Bath then presented insights on China and Hong Kong, based on her chapter with former student Dr Tianqi Gu. In particular, she highlighted several inconsistencies in China’s stance towards eliminating corruption. While China has increasingly sought to tackle these issues through extensive regulations, anti-corruption campaigns and signing the UNCAC, there is a notable lack of transparency with investigations and details of cases, both domestically and in investor-state dispute settlement proceedings. Official Chinese court databases feature very few corruption cases relating to foreign investors or FDIs. Professor Bath also pointed out the absence of legislation addressing corruption by companies and officials outside China, raising this as an important area for future development. 

Antony Crockett and Professor Simon Butt spoke on Indonesia, which is infamous for having high levels of corruption across its numerous levels of government. The pervasiveness of corruption in the Indonesian government was illustrated by reference to the three high-profile cases of Churchill / Planet Mining, Al Warraq and Rafat. They noted that judicial corruption dramatically increases the attractiveness of international commercial arbitration, as commercial parties lack confidence in the judiciary and therefore refuse to settle disputes locally. An in-depth analysis of corruption in Indonesian courts can be found in Professor Butt’s recent book, Judicial Dysfunction in Indonesia. This details 30 trials involving allegations of corruption against judges from the supreme court, constitutional court, administrative court, and most disconcertingly, the anti-corruption court itself.

Finally, Dr Amokura Kawharu, who wrote the foreword to the book, briefly discussed the perspective of New Zealand, currently ranked the third least corrupt country in the world. Despite this, New Zealand only ratified the UNCAC and enacted anti-corruption legislation in 2015. This, according to Dr Kawharu, might be explained by the difficulty policymakers face in competing for space on the legislative agenda, an issue compounded by the country’s short 3-year parliamentary terms.

The Hon Wayne Martin AC KC concluded the evening’s discussions with his perspective on the importance of continued efforts to tackle corruption and illegality, which strike at the heart of the rule of law. He added some caution towards the idea of establishing a permanent international court, citing practical challenges such as the inability to attract strong candidates for the bench as well as the customary process of state appointments giving rise to further risks of nepotism.