Corporate behaviour, dispute resolution and Japanese law: JSAA conference session (3 July 2019)

This is the title of a panel for the next Japanese Studies Association of Australia (JSAA) conference, to be held 1-4 July at Monash University in Melbourne. The panel will be facilitated by ANJeL and chaired by its ANU-based co-director, A/Prof Heather Roberts. The panel session (5:5) has been set for Weds 3 July 9-10.30am.
Proposed presenters are:
• Prof James Claxton, Kobe University, Prof Luke Nottage, University of Sydney (contact person), & Dr Nobumichi Teramura, UNSW
• A/Prof Leon Wolff, Queensland University of Technology
• Prof Veronica Taylor, Australian National University
• A/Prof Stacey Steele, Melbourne Law School
The four-paper panel will examine how leadership in Japanese firms is evolving (or not), in the context of recent regulatory developments in insolvency law, labour law and corporate governance. It will also consider how this may correlate with attempts to encourage firms in Japan as well as from abroad to make more use of new international arbitration and mediation facilities being developed or proposed recently for Japan.

Presentation 1 Title

“Japan as a Regional Hub for International Dispute Resolution: Dream Come True or Day Dream?”

The Japanese government, supported by various stakeholders, has recently been attempting to develop Japan as another regional hub for international business dispute resolution services. Tracking this development is important for both theoretical and practical reasons. How it unfolds should reveal which of various theories for explaining Japanese firms’ law-related behaviour have more traction nowadays. Assessing the new initiatives is also important for legal practitioners and others interested in the practical question of where to arbitrate or mediate cross-border business disputes. This paper therefore reports on the recent establishment of the Japan International Mediation – Kyoto, as well as current attempts to promote existing and new international arbitration centres in Japan, albeit in the context of intensifying competition from other regional venues for dispute resolution services.
Dr Luke Nottage is Professor of Comparative and Transnational Business Law at Sydney Law School, specialising in arbitration, contract law, consumer product safety law and corporate governance, with a particular interest in Japan. He is founding Co-Director of the Australian Network for Japanese Law (ANJeL) and Associate Director of the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS). Luke’s 15 books include Product Safety and Liability Law in Japan (Routledge, 2004), Corporate Governance in the 21st Century: Japan’s Gradual Transformation (eds, Elgar 2008), Foreign Investment and Dispute Resolution Law and Practice in Asia (eds, Routledge 2011), Asia-Pacific Disaster Management (eds, Springer 2014), Who Rules Japan? Popular Participation in the Japanese Legal Process (eds, Elgar 2015), Independent Directors in Asia (eds, Cambridge UP 2017), International Investment Treaties and Arbitration Across Asia (eds, Brill 2018) and Contract Law in Japan (Kluwer 2019, with Hiroo Sono et al).
James Claxton is Professor of Law at Kobe University since 2015, having previously worked as counsel in the International Centre for the Settlement of Investment Disputes (ICSID) and leading US law firms.
Dr Nobumichi Teramura is Assistant at the University of Sydney Law School, having recently completed (with an Excellence Prize) a PhD in Law at the University of New South Wales, with a thesis entitled “Ex Aequo et Bono as a Response to the ‘Over-Judicialisation’ of International Commercial Arbitration”.
Presentation 2 Title
“#MeToo in Japan: A Socio-Legal History of Sexual Harassment in Japan”
Japan’s #MeToo moment happened 30 years ago – pre-Twitter. In 1989, a team of feminist lawyers filed a lawsuit on behalf of an editor at a publishing house in the Fukuoka District Court. The fascination with that case was equivalent to the Harvey Weinstein scandal in Hollywood: all four major daily newspapers carried the case on its front page; law reviews were bursting with analyses seeking to bring this new social problem within the text of centuries-old Civil Code provisions; and a new word was born – seku hara – winning the prize for ‘best new word’ that year. This presentation explores what happened next. How effective has the law kept pace with the reality of gender relations in the workplace? How have the courts expanded the doctrine against sexual harassment and changed their approach to evaluating the credibility of the evidence? How have legislators codified the work of the courts into equal opportunity legislation? And has Hollywood’s #MeToo movement swept through Japan as it has elsewhere in the world?
Biography for Presenter 1
Leon Wolff is an Associate Professor of Law at the Queensland University of Technology (QUT). He has honours degrees and university medals in both law and Japanese studies (University of Queensland) as well as masters qualifications in Japanese interpreting and translation (University of Queensland), Asian and comparative law (University of Washington) and higher education (University of Sydney). He is currently completing his doctoral thesis on Japanese litigiousness (Deakin University). Leon has held Australian Research Council grants in Japanese law (2001-2003, 2004-2007) as well as three back-to-back fellowships in Japanese studies from the National Library of Australia, the Japan Foundation and the Australian Government (Department of Education) (2008-2009). He has been a visiting professor at Gakushuin University (July 2012), Nagoya University (October 2014) and Osaka University (May-July 2015) and was awarded a Japan Foundation fellowship (in 2015). He is published in a wide range of areas in Japanese law, including corporate governance, employment relations, gender equity, law and popular culture, and public administration. He co-founded ANJeL in 2003 and has served as co-Director near-continuously.
Presentation 3 Title
“The Battle for the Japanese Boardroom”
In 2015 Japan’s Financial Services Agency (FSA) and the Tokyo Stock Exchange promulgated a revised Corporate Governance Code for Japan that significantly broadened the obligations of listed companies (and their boards of directors) to be attentive to corporate social responsibility and to engage with stakeholders other than employees and shareholders. This followed the FSA promulgation in 2014 of a Stewardship Code, recognizes the role of institutional shareholders, and their ability to demand environmental, social and governance performance from the companies in which they have an ownership interest. These regulatory markers shift and sharpen the corporate governance debate in Japan.
That debate had previously centered on the ways in which Japanese corporate governance diverge from a U.S.-style model, notably through board composition (which in Japan remain strikingly homogenous), on whether adding external, independent directors has any effect on corporate governance, and on the effects of indirect corporate regulation (though, for example derivate suits). The issue for Japanese corporations now, however, is how to manage a proliferation of external actors and standards which together, outside Japan, are understood as holding a corporation’s ‘social licence’. This presentation looks at some corporate disputes and scandals that illustrate these new regulatory pressures on large Japanese corporations. It analyzes the factors that inhibit companies from internalizing and operationalizing the 2014-15 regulations and how these are being contested publically.
Biography for Presenter 3
Veronica L. Taylor is Professor of Law and Regulation at the Australian National University (ANU), where she also directs the ANU Japan Institute. Her work focusses on regulatory justice, rule of law, and corporate governance issues in Japan and Asia. She currently teaches courses in regulation and Asian business law at the University of Tokyo. Veronica serves on the Board of the Australia-Japan Foundation, the Board of the Foundation for Australia-Japan Studies and on the Executive of the Australia-Japan Business Cooperation Committee.
Presentation 4 Title

“Ageing societies and company restructuring: lessons from Japan’s Guarantee Guidelines”

This paper examines the intersection of Japan’s aging society and insolvency law and practice, with a particular focus on restructuring and the Keieisha hoshō ni kansuru gaidorain [Guidelines in relation to the business owners’ personal guarantee]. Despite major reforms to Japan’s insolvency law framework in the late 1990s and early 2000s, the number of formal corporate filings has declined dramatically in recent years. Although the statistics partly represent better economic conditions, they also suggest that there is little incentive for so-called zombie companies and their senior management to deal with flatline performance. The concomitant failure to reallocate economic resources to help modernise the Japanese economy is a major concern for business groups. Often led by aging CEOs with children who are not interested in taking over the regionally-based company, a key motivation for these entrepreneurs to avoid filing for formal insolvency proceedings is the treatment of personal guarantees. To deal with this problem, the Japanese Government’s Guidelines were introduced in December 2013 and became effective from 1 February 2014 with mixed results. The paper uses the Government’s guarantee scheme to make some preliminary points about legal and regulatory responses to elderly entrepreneurs in the context of efforts by Japanese insolvency practitioners to innovate and meet developing pockets of need through non-legislative means.
Biography for Presenter 4
Associate Professor Stacey Steele is an academic and practising lawyer. Her research interests include comparative insolvency law in the Asia-Pacific, Japanese law and society, legal education and financial services law. Stacey is published widely in academic journals and books as well as providing commentary to professional newsletters and practitioner publications such as the Insolvency Law chapter in CCH’s Japanese Busines Law Guide. She co-edited Match-Fixing in Sport: Comparative Studies from Australia, Japan, Korea and Beyond (Routledge, 2018) with Hayden Opie, Internationalising Japan: Discourse and Practice (Routledge, 2014) with Jeremy Breaden and Carolyn Stevens, and Legal Education in Asia: Globalization, Change and Contexts (Routledge, 2010) with Kathryn Taylor. Stacey’s legal practise focuses on privacy, data and cybersecurity in the context of financial services.

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.