Here are some papers to be presented and discussed at a symposium on Monday 15 July at Hong Kong University, as part of a joint research project over 2019 with the University of Sydney Law School.
1. Claxton, James M. and Nottage, Luke R. and Teramura, Nobumichi, Developing Japan as a Regional Hub for International Dispute Resolution: Dream Come True or Daydream? [updated: 9 February 2019] Journal of Japanese Law, Issue 47, 2019 (Forthcoming); Sydney Law School Research Paper No. 19/01. Available at SSRN: https://ssrn.com/abstract=3299097
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 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 current attempts to promote existing and new international arbitration centres in Japan as well as the recent establishment of the Japan International Mediation – Kyoto, in the context of intensifying competition from other regional venues for dispute resolution services.
2. Huang, Jie Jeanne, Procedural Models to Upgrade BITs: China’s Experience, Leiden Journal of International Law (December 2017). Available at SSRN: https://ssrn.com/abstract=3087837
With the rise of a new generation of investment policies, upgrading existing BITs is of significant interest to states. China has upgraded 28% of its investment treaties in various ways. Two investment arbitration tribunals and one highest court at the seat of arbitration have recently rendered decisions favoring the application of old Chinese BITs over the upgraded ones. China’s experience with upgrading BITs may provide general policy discourse and direction for other countries planning to upgrade their BITs. Using China’s experience, this paper categorises different methods of upgrading BITs into the Co-existence Model (parties to an old BIT join existing or new FTAs or a regional investment agreement), the Replacement Model (replace an old BIT with a new one), the Amendment Model (amend an old BIT by a protocol) and the Joint Interpretation Model (make a diplomatic announcement to interpret a BIT). This paper also discusses the benefits and challenges of each Model and concludes with directions for future BIT upgrading.
3. Gu, Weixia, China’s Belt and Road Development and A New International Commercial Arbitration Initiative in Asia (November 2018), Vanderbilt Journal of Transnational Law, Vol. 51(5), at https://wp0.vanderbilt.edu/jotl/2018/11/chinas-belt-and-road-development-and-a-new-international-commercial-arbitration-initiative-in-asia/
The policy centerpiece of President Xi Jinping’s foreign strategy, China’s Belt and Road Initiative (BRI), ambitiously aspires towards expanding regional markets and facilitating regional cooperation. In context of a rising volume of cross-border transactions generated by the BRI, a robust legal framework on dispute resolution is required to forge investor confidence and enable BRI’s integral goal of economic integration. In light of the substantial levels of harmonization among arbitration laws, arbitration is argued to constitute a primary vehicle of international commercial dispute resolution in an economically integrated Asia under the BRI. It is against this backdrop that the Article argues that the BRI provides a unique opportunity to contemplate the possibility of regional harmonization, as within the Asian economies along the BRI, of the public policy exception to arbitral enforcement. Such an arbitration initiative in Asia, in which China is anticipated to take a proactive role, holds a wealth of potential to project renewed momentum on China as an engine of not only economic power, but also soft power transformation in pioneering international legal norms.
4. Bath, Vivienne, China and International Investment Arbitration: Chinese Arbitral Institutions and ISDS Rules
In 2017, the China International Economic and Trade Arbitration Commission (CIETAC) and a number of other Chinese arbitration institutions issued rules to facilitate the hearing of international investment disputes involving states and investors under the auspices of CIETAC and other arbitration institutions. This paper looks at these rules and considers their relevance and utility in the context of the Belt and Road and China’s practice in relation to investment, both domestically and internationally.
[For a related EAF blog posting, “Dispute Resolution Along the Belt and Road” (7 June 2019), see here.]
5. Ali, Shahla, ICA and ISDS Developments in Hong Kong in the Context of the Belt and Road Initiative
This paper examines the impact of both the Belt and Road Initiative and the UNCITRAL Model Law on International Arbitration (the Model Law) on both international commercial and investor-state arbitration practice in Hong Kong. Measures taken to modernize the practice of arbitration including training programmes, and legislative reforms are examined with a view to gaining insights into challenges and future developments.
6. Teramura, Nobumichi, Luke Nottage and James Morrison, International Commercial Arbitration in Australia: Judicial Control over Arbitral Awards (updated June 2019)
Geographical remoteness has not prevented Australia from pursuing its ambition to become a major hub for international commercial arbitration (ICA). While regional competitors in the Asia-Pacific region such as Singapore and Hong Kong have already achieved great success in the arbitration world, Australia’s ‘Tyranny of Distance’ requires extra efforts to attract ICA cases. Recent marketing from the Australian government emphasises (1) a harmonised legal framework for ICA in line with international standards; (2) sophisticated arbitration institutions; and (3) some of the world’s leading arbitration practitioners.
While these factors do reveal strong potential to attract ICA cases, to ensure that this goes beyond a mere possibility, the Australian government and judiciary are making quite concerted broader efforts. The former has recently become more vigorous in marketing Australia-based ICA in and out of the country. The latter has generally tried to issue pro-arbitration judgments particularly over the last ten years, and in public speeches or publications leading judges have been actively summarising and promoting Australian developments both domestically and world-wide. However the court system has structural problems, due to the shared ICA jurisdiction of State and Territory Courts alongside the Federal Courts, compared to the unitary system in Hong Kong and Singapore. There are also persistent delays in court-related ICA matters under the IAA, even in the Federal Court of Australia. Nonetheless, perfection is never attainable.
The rest of this paper argues that Australia has significantly improved legal environment for ICA in line with international standards, focusing on the main topics identified for a wider cross-jurisdictional research project: (1) arbitrator bias; (2) conflicts of interests; (3) procedural irregularities and arbitrator’s misconduct during proceedings; (4) arbitrability (objective arbitrability) (5) judicial interpretation of arbitration clauses (subjective arbitrability); and (6) enforceability of arbitral awards (especially regarding public policy).
7. Brown, Chester, An Australian Perspective on Investment Treaty Negotiations and Investment Arbitration
Australia has concluded 22 bilateral investment treaties, and 11 free trade agreements, with more having been signed and awaiting entry into force. But Australia’s approach to investment treaty negotiations has been characterized by inconsistency, with its attitude in particular to investor-State dispute settlement largely dependent on which hue of politics is in government. What effect will Australia’s federal election on 18 May 2019 have on Australia’s direction regarding trade and investment negotiations? This presentation will consider Australia’s recent experience as well as its future prospects in investment treaty negotiations and investment arbitration.
[For a related EAF Blog posting by Luke Nottage, “Settling Investor-State Disputes, Asia-Pacific Style” (25 May), see here.]
8. Reyes, Anselmo, Can the Singapore International Commercial Court Play a Role in ISDS?
This presentation examines rationales and rise of international commercial courts, comparing especially Singapore’s Court, and assesses whether their features may be conducive to resolving investor-state disputes. It also explores a major concern of potential users, enforcement and execution of judgments, especially by investors against host states. The presentation ends by considering what other factors will impact on the Court’s capacity to resolve investor-state disputes, including issues around transparency, third-party participation, sovereignty, regional considerations, and economic viability.