Japanese Law presentations (& refreshments) at ASAA conference, 3-5 July 2018

The Australian Network for Japanese Law (ANJeL) is pleased to be coordinating two panels for the biennial conference of the Asian Studies Association of Australia, hosted this time by the University of Sydney. Below are the accepted presentation titles and abstracts.
ANJeL also will host for members some informal drinks and nibbles at the Sydney Law School, level 6, from 6pm on Tuesday 4 July. Members may register by emailing (by 30 June): ana.ubilava@sydney.edu.au

Title: Comparative Law in and for Japan
Author: Luke Nottage – Professor of Comparative and Transnational Business Law, Sydney Law School, the University of Sydney (Australia) and Beatrice Jazulot – Professor of Law and Asian Studies, ENS and Sciences-Po, Lyon (France)
Abstract: Japan has a long and successful history of carefully investigating and adapting foreign laws to build up its own legal system. Japan has also exported its law, through colonisation in North Asia in the first half of the 20th century, and through legal technical assistance especially in Southeast Asia since the 21st century. Japanese law has also impacted on comparative lawyers from abroad, beginning from the 1960s when Japan’s economy boomed, and continuing from the 1990s as economic stagnation engendered a raft of law reforms. This has generated a sophisticated comparative law literature and practice related to Japan, which has also influenced contemporary scholarship on other Asian legal systems.
Comparative law research continues to be a cornerstone for most law reform projects within Japan, with academics playing significant roles, although law reform processes have become more complex over the last two decades. Further challenges for comparative law studies in Japan arise from persistent pressures on legal academia despite – or perhaps because of – major reforms to legal education introduced in 2004, and linked to an ambitious justice system reform program.
Title: The selective reception of uniform law in Japan and Asia.
Author: Souichirou Kozuka, Professor of Law, Gakushuin University (Japan)
Abstract: This paper will give insights into how “uniform law” has been received in Japan and Asia. On the global level, some of the uniform law instruments, such as the CISG and Cape Town Convention, have achieved remarkable success. However, Japan (though it has been one of the earliest “Westernised” state in Asia) joined CISG only as late as 2008 and has not ratified the Cape Town Convention yet. More careful examination about which of these uniform law instruments have enjoyed wider reception globally (in particular in Europe) and which are more popular in Asia reveals the fact that Asian states, including Japan, are more selective about reception of uniform law and that they are more focused on the actual benefits expected from the uniform law. Based on such findings, this paper will also consider such implications as which type of uniform law instruments have better prospects of success, in particular among Asian states, and what can be done with future unification/harmonisation projects.
Title: Should Australia introduce a Japanese style Joint Crediting Mechanism?
Author: Justin Dabner – Associate Professor, Law School, James Cook University (Australia)
Abstract: The Paris Agreement reinvigorated the use of carbon markets as a means to confront climate change. Both domestic and multi-jurisdictional mechanisms directed at carbon credit creation and trading were endorsed. A new measure to replace the clean development mechanism (CDM) (and joint implementation) at the end of the Kyoto Protocol’s second compliance period in 2020 is proposed.
With carbon market measures now increasingly likely to take centre stage Japan’s joint crediting mechanism (JCM) takes on particular interest. A mechanism, whereby Japanese concerns can generate carbon credits from foreign emissions reductions projects, such a measure borrows from the CDM but seeks to address its inadequacies.
Although Australia’s current emissions reduction policy is domestically focused it mightbe expected that cost considerations will necessitate a reconsideration of this policy. The opportunity for Australian entities to instigate cheaper emissions reductions in foreign jurisdictions which might count towards their, and the country’s, reduction obligations might see a policy of replicating Japan’s JCM.
This paper explores the development of the JCM and seeks to assess the suitability, or otherwise, of such a measure in an Australian context. It concludes that if the Australian Government wished to recognize credits from foreign emission reductions projects then it might be able to adapt its Emissions Reduction Fund along the lines of the JCM.
Title: Societal Constitutionalism and Japan’s New Micro-sites of Social Cohesiveness: Searching for a Legal Paradigm
Author: Dr Luca Siliquini-Cinelli – Senior Lecturer in Law Department of Law, Liverpool Hope University (UK)
Abstract: Over the past few years, Japan has been witnessing the emergence and spread of micro-relational forms of social cohesiveness in response to the ryūdō-ka shakai and hikikomori phenomena. These terms refer to the crisis of social relations and cooperation which commenced after the collapse of the Japanese economy in the early 1990s. While scholars, particularly sociologists and anthropologists, have inquired consistently into these micro-sites of civic friendship and social cohesion from diverse perspectives of inquiry, their legal status is yet to be ascertained. This article asks whether the paradigm of societal constitutionalism developed by Gunther Teubner can be of any assistance in conducting such an assessment. In particular, it offers a contextualisation of Teubner’s reflections on constitutional pluralism and fragmentation of social functions from the perspective of Kiyoshi Hasegawa’s scholarship on the formation and dynamics of social communities in urban areas. This theoretical effort will, the article maintains, assist scholars in initiating a communal effort from which academic debate on the subject may ultimately benefit.
Title: Prevention of Statelessness in Japanese Law: The Historical Normative Influence of International Law (tentative)
Author: Hajime AKIYAMA, Research Fellow, Japan Society for the Promotion of Science; Doctoral Student, Graduate School of Arts and Sciences, International Christian University, Japan; Teaching Assistant, International Christian University (Japan)
Abstract: The first Japanese Constitution in 1889 covered nationality and the first Nationality Act in Japan was enacted to clarify the scope of the Japanese in 1899. When the 1899 Nationality Act was drafted, not only the household system of Japan but also the international legal principles were referred. One of the international legal principles was the prevention of statelessness. This indicates that there is a possibility that prevention of statelessness in international law has influenced on the Japanese nationality law not only in the drafting process of the 1899 Nationality Act but also that of the 1950 and 1984 Nationality Acts. There are even possibilities that compatibility of the prevention of statelessness in international law and Japanese nationality law has been considered although the text of the nationality law did not change. This possibility is significant to be explored because it clarifies the relationship between international law and Japanese law, which mainly developed after Japan attempted to be “civilised” in the Meiji era. Furthermore, it is a nationality matter, which is regarded as one of the most significant rights of a state, so the role of international law in this matters have implications to the relationship between the sovereign power of Japanese nationals and international law.
This presentation will explore the historical normative influence of prevention of statelessness in international law on Japanese nationality law. This presentation will focus one or several of the following Japanese law: the 1889 Constitution, 1899 Nationality Act, laws in “outland” (colonies) of Japan, the 1947 Constitution, 1950 Nationality Act, 1984 Nationality Act and amendments to the laws above mentioned.
Title: The Law School System at a Turning Point: Current Criticalities and Future Outlook
Author: Giorgio F. COLOMBO, Associate Professor of Law, Nagoya University Graduate School of Law (Japan)
Abstract: In 2004, Japan implemented a seminal reform about the access to the legal professions. The new system created a Law School system broadly modelled on the United States’ equivalent institution, and had the dual purpose of increasing the number of legal professionals in the country and creating a class of jurists as “problem solvers” rather than just “law experts”.
After initial optimism, now it is possible to say that the reform is a failure. The passing rate collapsed, as it did the number of applicants to the Law Schools, and about half of them have announced their incoming shut down.
This paper assesses the reasons behind this situation and formulates some predictions about further developments. It will discuss the reform, using the tools of institutional and cultural comparison, tracing the history of the system and highlighting the discrepancies between a strongly “European” tradition and the present American-inspired model.
Title: Shifting Fees of Civil Litigation and Lawyers’ Fees to Losing Party for Real Justice?
Author: Yoko TAMURA, Professor, Tsukuba Law school (Japan)
Abstract: It is well known that in the U.S., lawyers can make “contingent fee” contracta with their client so that lawyers could get awards only when winning at the court and even in federal civil case, party may get “punitive damages ” as known as “triple damages”, so that winning party would get more enough money than actual damage even after paying to their legal counsels. In England, losing party should pay litigation fees (incl. lawyers’ fees) of the other party. While in Japan, party can demand only actual damages. One usually should pay one’s counsel’s fees by oneself notwithstanding the result of the judgment except rules otherwise. Therefore, in Japan winning party would never be satisfied whole amount of awards actually. Is it, however, real justice for winning party? Losing party never lose everything. Lawyers’ fees definitely does matter for parties in Japan since there also had not been any insurance for covering lawyers’ fees. This paper aims to clarify and examine Japanese system of litigation fees and lawyers’ fees and try to provide new solution regarding litigation fees in Japan.

Author: Luke Nottage

Prof Luke Nottage (BCA, LLB, PhD VUW, LLM LLD Kyoto) is founding co-director of the Australian Network for Japanese Law (ANJeL), Associate Director (Japan) of the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS), and Professor of Comparative and Transnational Business Law at Sydney Law School. He specialises in international dispute resolution, foreign investment law, contract and consumer (product safety) law.