Arb-Med: in Japan, not Australia?

Active settlement facilitation by arbitrators in Japan, mirroring mediation by judges following the historically German/Austrian civil procedure law tradition, remains quite persuasive. This was evident from JCAA statistics analysed a decade ago by Prof Tatsuya Nakamura, prompting my commentary on this Blog (incorporated into chapter 4 of my new Elgar book, to be launched mid-year by Chief Justice Allsop of the Federal Court of Australia). Australia has also experimented with statutory Arb-Med provisions in New South Wales from 1990, and nation-wide from 2010 for domestic arbitrations under a more restrictive model, but Arb-Med has been far less popular in practice. The 2021 Rules of the Australian Centre for International Commercial Arbitration ended up not including Arb-Med provisions, but they were included (based largely on the 2010 legislation for domestic arbitation) in the September 2020 Consultation Draft Rules, so draft Article 55 reproduced below.

My analysis for a different Blog examines this topic in more detail. I suggest those draft Rule provisions could still be adapted anyway for individual contracts by parties and legal advisors (especially those from or familiar with Japan), other arbitral institutions (such as the JCAA) or legislators.

55. Mediation by an Arbitrator

55.1 An arbitrator may act as a mediator in relation to the dispute or a part of the dispute between the parties if each party has consented in writing prior to the arbitrator so acting.

55.2 If an arbitrator acts as a mediator, the arbitral proceedings must be stayed to facilitate the conduct of the mediation proceedings.

55.3 An arbitrator who is acting as a mediator:

(a) may communicate with the parties collectively or separately; and

(b) must treat any confidential information obtained from a party as confidential and for the purposes of these Rules, any information provided by one party to the arbitrator which that party: (i) has not provided to all the other parties; or (ii) has not expressly agreed can be provided to all the other parties, shall be treated as confidential.

55.4 If, during the course of any mediation, confidential information is obtained by the arbitrator and if the mediation terminates without a settlement of the entire dispute being reached, before recommencing the arbitration:

(a) the arbitrator must inform the parties if he or she has obtained confidential information during the mediation; and

(b) after so informing the party, the arbitrator must obtain the express written consent of all the parties before resuming to act as an arbitrator.

55.5 Following the termination of any mediation, no objection may be taken to the future involvement in the arbitration proceedings by the arbitrator on the grounds that the arbitrator acted as a mediator in relation to the dispute:

(a) if the arbitrator obtains the express written consent of all the parties to the arbitration required by Article 55.1; or

(b) if the arbitrator did not obtain any confidential information during the course of the mediation.

55.6 If an arbitrator has obtained confidential information during the course of any mediation and all parties do not consent to the resumption of the arbitration proceedings by the arbitrator, the arbitrator’s appointment is taken to have been terminated. Upon such termination, a replacement arbitrator is to be confirmed or appointed pursuant to the procedure by which the arbitrator being replaced was confirmed or appointed, except that:

(a) if there is a sole arbitrator, and if within [40] days of the parties authorising the arbitrator to act as mediator the parties have not reached agreement on the choice of a replacement sole arbitrator and provided written evidence of their agreed nomination to ACICA, the replacement sole arbitrator shall be appointed by ACICA with a mandate to commence upon termination of the appointment of the arbitrator who acted as mediator; or

(b) if there are three arbitrators, and if within [60] days of the parties authorising one or more arbitrators to act as mediator the parties have not reached agreement on the choice of one or more replacement arbitrators arbitrator and provided written evidence of their agreed nomination to ACICA, the replacement sole arbitrator(s) shall be appointed by ACICA with a mandate to commence upon termination of the appointment of the arbitrator(s) who acted as mediator.

Online Legal Education Compared: Australia, Japan and (Far) Beyond

Together with past ANJeL Visitor and Program Convenor (ANJeL-in-Japan), Seijo University Professor Makoto Ibusuki, I have been appointed General Reporter by the venerable International Academy of Comparative Law for a project comparing “Online Legal Education” across around 20 jurisdictions world-wide, including Australia and Japan. Draft National Reports will be received by January 2022 so we can draft our General Report, summarising key findings, to be presented at the four-yearly IACL Congress – this time hosted over 23-28 October 2022 in Asuncion (Paraguay). We plan then to co-edit a book in the IACL’s series published by Springer.

We hope to get and share insights into how online (university or other) legal education interacts with each jurisdiction’s legal profession, university system, and ICT infrastructure, as well as how online legal education has developed both before and after the COVID-19 pandemic. Below is the draft “questionnaire” we provided to guide (but not dictate to) Reporters preparing their chapters, and the current list of jurisdictions and Reporters nominated by IACL national committees. We welcome feedback on other questions or angles on this practically important and theoretically interesting topic for comparative research.

  • A. Background: Legal Profession, University and IT Systems Generally
    • Who are the main “gatekeepers” to the legal profession (cf Anderson & Ryan, 2009)? Does its corresponding size and nature make it generally harder or easier to move (university/qualifying or continuing) legal education online?
      • The existing legal profession (eg like Japan: bengoshi lawyers, negotiating with the Ministry of Justice and courts): tends to result in smaller legal profession, but still many other LLB graduates (not qualified as lawyers)
      • Universities (eg like Australia previously or now NZ: LLB and JD graduates can almost all qualify as lawyers, as they they need to just complete a short easy practical training course, so the numbers of law students allowed into universities – by the government as in NZ, or by universities themselves since 2011 in Australia – determines the size of the legal profession): tends to result in a larger legal profession
      • The market (eg like USA: as there are so many accredited law schools, and state bar exams are easily passed at least after a few attempts, so the numbers of lawyers is really determined only by whether students think they will be able to get a job as lawyer after graduating): tends to result in the largest legal profession
    • How are universities (and law schools) generally funded? Does this make it harder or easier to move legal education online?
      • Eg universities in Australia: growing dependence on international student revenues, including more recently in law – many are non-native English speakers (eg from China), so may be more difficult to move effectively their legal education online
      • Cf universities in Japan: still much lower international student proportions, especially in law; correspondingly more emphasis on research, so maybe easier to move online
    • How widespread is access to good-quality and affordable IT hardware (computers etc) and software (including internet access), among university students/teachers and legal professionals?
      • Eg in Australia: quite good for both groups, making it again easier to move university/qualifying & continuing legal education online
      • Cf in Japan: quite good for lawyers but less so for judges/courts, variable for university teachers, quite bad for many university students
  • B. Moves Towards Online Education:
    • Summary achievements before the pandemic, in light of the above background
      • University and/or qualifying legal education
      • Continuing (post-admission) legal education
    • Achievements and challenges after the pandemic
      • Briefly re continuing legal education
      • Details for university and/or qualifying legal education
        • Course/program goals (any revisions needed?)
        • Course assessment methods (fewer exams, more assignments and/or essays? Changes to grading curves?)
        • Delivery methods (purely online eg live and/or pre-recorded, hybrid with some face-to-face teaching?)
        • Other administrative challenges (eg more plagiarism?)
        • Student welfare and extra-curricular activities?
  • C. Conclusions:
    • Overall, has the shift to more online education been positive?
    • With (big!) assumptions of similar structure for legal profession, university funding and IT systems, what are the prospects for further online legal education as the pandemic abates?
Australie/Australia William van CAENEGEM (Bond  University) 
Belgique/Belgium Jan-Baptist Lemaire (KU Leuven)
Brunei & Malaysia / Singapore

Canada 
Nobumichi Teramura (Universiti Brunei Darussalam, Institute of Asian Studies) & Salim Farrar (University of Sydney, Law School)

Adrien Habermacher (UMoncton)
Chypre/Cyprus Lida Pitsillidou (UCLan) 
Croatie/CroatiaMirela Župan (University  of JJ Strossmayer in Osijek Faculty  of Law)
Danemark/ Denmark Per Andersen
Estonie/Estonia Age Värv (University of Tartu,  Faculty of Law) 
Etats-Unis/USAMichael Hunter Schwartz  (University of the Pacific,  McGeorge School of Law)
Hongrie/HungaryM. Ádám Fuglinszky (Eötvös Loránd Université)
Italie/Italy Rossella Esther Cerchia  (University of Milano Statale) 
Japon/Japan Kenichi YONEDA (Kagoshima  University)
Macao/MacauRostam J. NEUWIRTH, Alexandr SVETLICINII, Muruga Perumal RAMASWAMY (University of  Macau) 
Norvège/Norway Tobias Mahler (University of Oslo)
Pakistan Syed Imad-ud-Din Asad 
Pays-Bas/ Netherlands Ernst van Bemmelen van Gent 
Roumanie/ RomaniaDaniela-Anca DETESEANU  (Universitatea din Bucuresti)
Royaume-Uni/UK 

Seychelles
Andra le Roux-Kemp  (University of Lincoln)

Nyasha Noreen Katsenga (University of Seychelles)
Tchéquie/Czech  RepublicDavid Sehnálek (Masaryk University)
Turquie/Turkey Elif Küzeci  (Bahçeşehir University) 
VenezuelaEugenio HERNANDEZ-BRETON  (Universidad Central de  Venezuela, Universidad  Monteavila, Academia de  Ciencias Politicas y Sociales)

ANJeL/JSAA “Japanese Law in Context” Podcasts Project – Going Live

The Australian Network for Japanese Law (ANJeL) in collaboration with the Japan Studies Association of Australia (JSAA) and thanks to Mini-Grant funding from the Japan Foundation Sydney awarded in November 2020, has completed 20 podcasts introducing Japanese Law in comparative and socio-economic contexts. The interviews include segments on the current or likely impact of the COVID-19 pandemic across the diverse sub-fields of Japanese law and society. The podcast “playlist” is here on Youtube and a report is here on the design and some key points from the podcasts, written by Melanie Trezise (PhD candidate and research assistant at the University of Sydney Law School, and past ANJeL Executive Coordinator).

The expert interviewees have taught in the Kyoto and Tokyo Seminars in Japanese Law, co-organised by ANJeL and Ritsumeikan University‘s postgraduate Law School since 2005 for Japanese, Australian and other international students, and/or the interviewees have been ANJeL visitors or advisors. Interviewers are ANJeL co-directors Prof Luke Nottage (University of Sydney Law School) and A/Prof Leon Wolff (QUT), along with Micah Burch (Senior Lecturer at Sydney Law School) and Melanie Trezise (who was also primarily responsible for the editing). Others who helped make this possible include Dr Nobumichi Teramura (now Assistant Professor at the University of Brunei) and the terrific tech team from Sydney Law School (Lana Kolta, Andy Netherington and Ross West).

ANJeL and JSAA are very grateful to all who supported this project. We hope that these resources available via their websites (or directly via Youtube) will be useful for the wider public when engaging with the fascinating and ever-changing world of Japanese law. The sub-topics and interviewees are listed below, with video-recordings edited to around 15-20 minutes each. There are also several mostly longer Bonus Features as well as a shorter introduction (by Luke Nottage), such as reflections about the innovative Kyoto and Tokyo Seminar program from some of its key architects (including past ANJeL Co-Director Kent Anderson and Ritsumeikan University Professor Naoya Yamaguchi). Other Seminar program organisers over the years include Professors Makoto Ibusuki (Program Convenor: ASEAN-in-Japan), Tsuneyoshi Tanaka and Chihara Watanabe.

  • Introduction to the Podcast Series – Luke Nottage (USydney)
  • Pop Culture – Leon Wolff (QUT)
  • Comparative and Theoretical Perspectives- Tetsuro Hirano & Chihara Watanabe (Ritsumeikan) with Luke Nottage
  • Mediation – James Claxton (Rikkyo / Waseda U) & Kyoko Ishida (Waseda U)
  • Arbitration – Giorgio Colombo (Nagoya U), Tatsuya Nakamura (Kokushikan U) & Nobumichi Teramura (UBrunei)
  • Civil Procedure – Yoko Tamura (Tsukuba U)
  • Lawyers – Jiri Mesteky (Kitahama Partners) & Yoshihiro Obayashi (Yodoyabashi & Yamagami)
  • Criminal Justice – Kent Anderson (ANU / Advisor to Australia’s Education Minister) & Makoto Ibusuki (Seijo U)
  • Government – Narufumi Kadomatsu (Kobe U)
  • Gender – Kyoko Ishida (Waseda U)
  • Labour – Takashi Araki (U Tokyo)
  • Contracts – Veronica Taylor (ANU/ ANJeL Advisor) & Tomohiro Yoshimasa (Kyoto U)
  • Consumers – Marc Dernauer (Chuo U)
  • Corporate Governance – Souichirou Kozuka (Gakushuin U)
  • Finance – Akihiro Wani (Morrison & Forster)
  • Tax – Justin Dabner (formerly JCU) with Micah Burch (USydney)
  • Bonus: Sports – Matt Nichol (CQU) with Micah Burch
  • Bonus: Gender, Past & Present – Masako Kamiya (Gakushuin U)
  • Bonus: Pandemic & Japanese Law – Compilation
  • Bonus: Kyoto and Tokyo Seminars – Kent Anderson, Leon Wolff & Naoya Yamaguchi (Ritsumeikan) with Luke Nottage

Guest blog: ‘Japanese Law in Context’ in the context of a global pandemic – Report on a podcast series

Written by: Melanie Trezise (PhD candidate and Research Assistant at the University of Sydney Law School, and former ANJeL Executive Coordinator)[forthcoming in Journal of Japanese Law (2021)]

Academic events in the first twelve months of the COVID-19 pandemic were almost universally united by cancellations and virtual substitutes. The hallmark Kyoto and Tokyo Seminars organised by the Australian Network for Japanese Law (ANJeL) with Ritsumeikan University Law School were no exception. For the first time since 2005, Japanese, Australian and other international students unfortunately missed the opportunity in February 2021 to attend Ritsumeikan campuses for 9 days of in-person intensive learning in Japanese law.


In order to provide continuity to the seminar program, ANJeL, together with the Japanese Studies Association of Australia (JSAA), and funded by a mini-grant from the Japan Foundation Sydney, elected to provide brief introductions to the Seminar topics as short-form video podcasts. These were conducted in interview format, which is an intentional nod to the co-teaching format of the Seminars, and many interview pairings will be familiar to attendees at previous Seminars.


The podcast series begins with a short introduction by ANJeL co-director Prof Luke Nottage (University of Sydney). It is followed by a fascinating overview by co-director A/Prof Leon Wolff (Queensland University of Technology) on the nexus between pop culture and the law in Japan. The early billing of this interview in the podcast series playlist available via YouTube is not an accident, and it is hoped that this will be a tantalising hook for the podcast audience. Wolff’s work addresses the core question of “does law matter?” in contemporary Japan by using pop culture, especially television dramas, as evidence that law does, in fact, matter. This acceptance permits a shift in the question to how law matters and in doing so, Wolff moves beyond cultural and rationalist arguments to emotional attitudes towards the law.


The subsequent interview with long-time supporters of the seminars, Ritsumeikan University professors Tetsuro Hirano and Chihara Watanabe, sets the comparative context that is at the core of the Seminars’ international setting. The interview, led by Nottage, provides a concise introduction for students to some historical and theoretical perspectives on Japanese law. It also generates a wide-ranging discussion that extends to ongoing outside and home-grown influences on Japanese law, as well as the impact of justice system reforms since 2001 on the number and availability of lawyers in Japan.


This discussion links neatly to the following interviews on the practice of Japanese law, focusing separately on mediation and arbitration, civil procedure, as well as the experience of practicing lawyers in Japan. With respect to mediation, Nottage is joined by Professors Kyoko Ishida (Waseda University) and James Claxton (Rikkyô University / Waseda University) to discuss mediation as an alternative option to court processes and the impact of formalising that process in Japan, which has somewhat paradoxically required the involvement of legal (or quasi-legal) practitioners with specialist skills. Claxton presents a compelling account of the present and future of the new Japan International Mediation Center in Kyoto (JIMC-Kyoto).


As for arbitration practice in Japan, Nottage interviewed Prof Tatsuya Nakamura (Kokushikan University), Prof Giorgio Colombo (Nagoya University, and past observer of the Seminars) and Asst Prof Nobumichi Teramura (University of Brunei Darussalam). Japan’s recent legislative reforms in this area of law are discussed, as well as Japan’s competitiveness on the international stage as a preferred forum for commercial arbitration.


Prof Yoko Tamura (Tsukuba University) provides her expertise on civil procedure and gradually shifting changes in Japanese civil justice in favour of improved timeframes for pre-trial proceedings, having a positive impact on courtroom practice. Prof Tamura also flags integrated electronic practices as a key pathway for further improvements in civil procedure, a theme that appears in the pandemic ‘bonus feature’ discussed below.


Representing Japan-based legal practitioners, Mr Jiri Mestecky (Kitahama Partners) and Ritsumeikan graduate Mr Yoshihiro Obayashi (Yodoyabashi & Yamagami) provide insights into the experience of working as international lawyers in Japan. Linking to the academic debate on culture as an explanation for Japanese law practice, Mestecky and Obayashi describe the important role of international lawyers in cultural interpretation, as well as the anticipated impact of further new rules relating to gaikokuhô jimu bengoshi (外国法事務弁護士; registered foreign attorneys at law) on the number of foreign lawyers in Japan.


Prof Kent Anderson (Australian National University and founding ANJeL co-director, who also helped establish the annual Seminars from 2005) and Prof Makoto Ibusuki (Seijo University, who also co-founded the Seminars when formerly at Ritsumeikan University) were interviewed by Nottage about their always-popular classes co-teaching Japanese criminal justice to an international student audience. This begins with asking why students feel “safe” in particular settings, then developing an innovative, holistic approach to place Japan’s striking conviction and confession statistics in a socio-cultural context.


Wolff’s interview with Prof Narufumi Kadomatsu (Kobe University) will be a crucial introduction for foreign students of Japanese law seeking to understand gyôsei shidô (行政指導; administrative guidance) and its limits. This was a difficult interview to edit with Kadomatsu’s excellent case illustration of ‘voluntariness’ in administrative guidance unfortunately not making the shortened cut. The longer versions of all interviews will remain available for ANJeL core institutions and Ritsumeikan teachers to use in the (physical, virtual or blended) classroom.


Regarding gender and the law in Japan, both Prof Kyoko Ishida and Prof Masako Kamiya (Gakushuin University) are separately interviewed by Wolff. Ishida’s personal experience as one of only two tenured female law professors at Waseda University adds poignancy and immediacy to the discussion on women in legal education and practice, and the challenges that continue to be faced by women considering entering the profession. Kamiya’s interview provides the historical and contemporary context to the issue of gender and equal opportunity for women in Japan. We made the decision to break our own rules and present this as a ‘bonus’ long-form interview for the wider public, to permit drawing out some very important background issues that were impossible to cover within the standard format of 15-20 minutes.


This discussion on gender flows into Wolff’s interview with Prof Takashi Araki (University of Tokyo), particularly on the much-cited workplace practice of lifetime employment in Japan. Araki’s insight into the changing trends and demographics in different employment practices (including burgeoning ‘irregular work’ examples of fixed contract labour, part-time work and agency labour) will be thought-provoking for viewers, even those not usually interested in or familiar with labour law and practice.


On contract law, Prof Veronica Taylor (ANU) and Prof Tomohiro Yoshimasa (Kyoto University), in interview with Nottage, present some surprises for Australian businesses and students of contract law, in particular in relation to an illustrative case on the termination of a wine industry contract. They reflect on how contract practices in Japan have changed in recent times, including an increase in documentation of contracts in large enterprises compared to continued informal contracting practices of small- to medium- sized enterprises, which lack the same resources.


Prof Marc Dernauer (Chuo University) and Nottage discuss consumer law, in particular the complexities of consumer contract and consumer law regulation in Japan. Dernauer highlights the layered public law / private law dichotomy as a surprising feature of Japanese consumer protection following legislative reform in this area especially over the past few decades. As their discussion reveals, strengthening ex post relief for consumers through private law remedies and better access to dispute resolution services, in line with the 2001 justice system reform program and earlier deregulation, has arguably not led to much unwinding of ex ante public regulation aimed at protecting consumers more directly.


The discussion by Prof Akihiro Wani (Morrison & Foerster, Sophia University) on finance and the law, interviewed by this author, has a certain prophetic feel. This is particularly so with respect to rapid changes anticipated as a result of new types of brokerage products, especially given that this interview was filmed at the end of 2020, prior to the GameStop trading controversy.


Tax law specialist and ANJeL Program Director (Teaching and Learning), Micah Burch (University of Sydney), also supported the project by conducting two interviews. His tax law interview with Dr Justin Dabner (formerly James Cook University) reflects on the experience of teaching comparative tax law in Japan, as well as the globally relevant issue of carbon taxation. Burch’s second interview, with Kyoto Seminar graduate Dr Matt Nichol (Central Queensland University), discusses Japanese and international sports law. This is the only interview topic in the podcast series that is not a regular feature of the Kyoto and Tokyo Seminars. Not unlike a demonstration sports event at the Olympics, Nichol whets the appetite for this to be included in the Seminar series in the future by delivering a fascinating bonus feature worthy of a wider audience.


In addition to the above, many of the interviews also draw out preliminary observations on the impact of the COVID-19 pandemic. In addition to including edited versions of these responses in the main feature interviews, we made the decision to create a compilation of these observations into a joint bonus feature to permit immediate comparison of the answers relevant to different areas of law and society. Many answers reflected on the role of technological solutions to continue the practice of law in as ‘business as usual’ manner as can be approximated. The inability to file court matters electronically was a frequent theme and it will be interesting to see whether virus containment measures in Japan will accelerate this change in Japanese judicial practice.


Finally, the pandemic challenge was also discussed in Nottage’s interview of Professor Naoya Yamaguchi (Ritsumeikan University, current co-organiser of the Seminars), Wolff and Anderson. They also reflect more generally on the past, present and future of the unique Kyoto and Tokyo Seminar program. As Wolff explained in this concluding bonus podcast, “continuity and change” has always been a major theme for this innovative and educational series. That is also now a fitting theme in considering the format of the Kyoto and Tokyo Seminars themselves in the context of the ongoing global pandemic.


Indeed, in-person academic conferences and seminars are much more than just opportunities for self-funded students to fill up on catered sandwich triangles and norimaki – they have an essential role in providing opportunities for people to network and get a sense of everyday life in a different socio-cultural context. Most people will agree that this has proven challenging to replicate online, at least to establish new relationships and deepen perspectives. On the other hand, digital format conferences have provided a greater degree of accessibility, as demonstrated by the inclusion of these videos on YouTube for access by the general public.


It seems certain, however, that when they can return, and in whatever format the program must take, there will be a ready audience for ANJeL’s Kyoto and Tokyo Seminars co-hosted with and at Ritsumeikan. In the meantime, this podcast series delivers thought-provoking material for students, academics and practitioners alike, as well as a kind of time capsule for this broad community of people interested in Japanese law in a global context.

Asian Legal Conversations: COVID-19 (Japan)

ANJeL Program Convenor (Judges-in-Residence) A/Prof Stacey Steele and UMelbourne colleagues have produced or assembled webinar recordings, interview transcripts and other resources comparing how Japanese and society has managed the COVID-19 pandemic, available here.

These resources include:

Quarantine, Masks and Dis/ease: Social Discourses of COVID-19 in Japan and Korea

Sunyoung Oh, Claire Maree, Jun Ohashi and Patrick Murphy
Originally posted on the Melbourne Asia Review, 5 November 2020 [43-minute recorded webinar]

An Analysis of Japanese Responses to COVID-19 from an Administrative Law Perspective

Shusaku Kitajima, 8 October 2020 [article, building on interview with Stacey Steele (26 May, transcript here)]

Responses to COVID-19 and Japanese Criminal Justice

Reegan Grayson-Morison and Stacey Steele, 24 June 2020 [interview transcript]

Judicial Responses to COVID-19: Japanese and Victorian Courts’ Use of Technology

Reegan Grayson-Morison and Stacey Steele, 23 June 2020 [interview transcript]

Embracing Asian Law Centre Communities and Opportunities: Alumni Gathering of Japanese Judicial Visitors

Stacey Steele, 18 June 2020 [short article]

Regionalism Rises in Japan to Confront COVID-19

Dan Rosen, 21 May 2020 [short article]

Japan’s Soft State of Emergency: Social Pressure Instead of Legal Penalty

Akiko Ejima
Co-posted in collaboration with
COVID-DEM, which curates and publishes analysis of COVID-19’s impact on democracy worldwide, 13 May 2020 [short article]

Not a Sporting Chance: COVID-19 Dashes Japan’s Olympic Economic Hopes

Asialink
Originally posted on
Asialink Insights, 11 May 2020 [short article]

“ADR Academic of the Year 2020” Award

Based partly on his new book of selected, updated and new essays on “International Commercial and Investor-State Arbitration: Australia and Japan in Regional and Global Contexts”, Luke Nottage was recently awarded “2020 ADR Academic of the Year” by the Australian Disputes Centre. This leading centre administering and promoting Alternative Dispute Resolution has presented the “Australian ADR Awards” since 2016 across various categories. Open to all Australia-based experts, the “ADR Academic of the  Year” award “recognises the achievements of individuals who have in the last 12 months demonstrated excellence in academia in the field of [ADR, with work having] benefitted individuals, organisations or communities to achieve outcomes in more effectively resolving disputes.” More detailed criteria (work undertaken, process management, and benefits) and how Luke successfully met them over 2020 with kind letters of support from  Malcolm Holmes QC and Corrs consultant Prof Richard Garnett, are set out below.

  1. Detail outstanding work [over 2020] that illustrates excellence in academic endeavour in the area of alternative dispute resolution. [NB: Manuscript versions of most papers are freely downloadable via SSRN.com]

–       Four articles in leading refereed journals: on ISDS arbitrator neutrality (JWIT – as part of the special issue co-authored by the Geneva-based Academic Forum for ISDS), arbitration transparency (AIAJ), resolving Japan-Korea trade and investment disputes (JWT), Japan’s initiatives in international dispute resolution services (JJL)

–       Six chapters published or in press for books: on judicial control of arbitral awards (CUP Handbook), Asian investment treaty arbitration (including Japan and Australia, for Springer Handbook), arbitration and ‘society at large’ (CUP Compendium), ISDS impact on FDI (CUP), and a detailed analysis of ACICA (for the Oxford Encylopedia of International Procedural Law, with Prof Richard Garnett)

–       lead-edited New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution (15 chapters, Wolters Kluwer, published end-2020), including my own five (co-)authored chapters (eg on Australia’s recent investment treaty arbitration practice): outline at https://japaneselaw.sydney.edu.au/2020/07/new-frontiers-in-asia-pacific-international-arbitration-and-dispute-resolution-luke-nottage-shahla-ali-bruno-jetin-nobumichi-teramura-eds-wolters-kluwer-end-2020-abstracts-keywords-webin/

–       put into press 12-chapter International Commercial and Investor-State Arbitration: Australia and Japan in Regional and Global Contexts (Elgar, February 2021): outline at https://japaneselaw.sydney.edu.au/2020/08/book-in-press-with-elgar/

–       taught international arbitration at Sydney Law School (over 200 students across 5 JD/LLB and LLM courses) and UAuckland (LLM)

–       Supervising two PhD students in international arbitration and mediation, awarded Sydney University Postgraduate Representative Association “supervisor of the year” in late 2019

–       Academic Co-advisor for “Team Australia” law students across multiple Australian universities, who came second in Tokyo’s Intercollegiate Negotiation and Arbitration Competition in December 2019, and again second in November 2020 competing remotely (https://www.teamaustralia-inc.net/),

–       Only full-time academic on the ACICA Rules Drafting Committee, which released new draft Rules recently for public consultation

  1. How have you researched and developed this work and what skills have you used to ensure its effective delivery? [‘process management’]

–       Provided freely downloadable versions of almost all above publications (and most earlier arbitration or ADR-related publications) via http://ssrn.com/author=488525 (with 2700+ downloads of all my papers over last 12 months, so one of the most widely-read Australia-based law authors via SSRN.com)

–       For the Kluwer New Frontiers book: obtained competitive funding from USydney and Hong Kong University for two conferences, ran the USydney-based one in November 2019, mentored a project assistant to become a book co-editor, reported on presentations and related work in progress via https://japaneselaw.sydney.edu.au,  http://arbitrationblog.kluwerarbitration.com/author/luke-nottage/ and http://mediationblog.kluwerarbitration.com/author/luke-nottage/

–       Further disseminated research findings to practitioners and others through professional journals such as ACICA Review (December 2019 pp54-6, with Rome-based seminar co-presenter) and multiple international and domestic conference or seminar presentations (including Kluwer book related seminar organised and chaired on 4 August 2020 webinar, with over 200 registrants: https://law-events.sydney.edu.au/talkevents/beyond-the-pandemic-new-frontiers-in-asia-pacific-international-dispute-resolution)

–       Provided three submissions (twice invited to give oral evidence) for parliamentary inquiries into four treaties related to investment arbitration, with associated media commentary (eg AFR 26 August 2019) and analysis quoted in related JSCOT Reports (eg No 188, December 2019)

–       Co-organised and co-moderated ACICA Rules Revision public consultation webinar for Australian Arbitration Week in October 2020

–       Joined williamstradelaw.com as Special Counsel from July 2020 to provide legal advice in international arbitration nationally and internationally

  1. How do you believe this work has benefitted individuals, organisations and/or communities?

–       Improved understanding of the trajectory and current issues of international commercial and investment treaty arbitration, as well as cross-border mediation generally, among lawyers, academic and student researchers, government and other policy-makers (including treaty negotiators) as well as the general public

–       Mentored younger and mid-career practitioners and academics in these fields

–       Created closer institutional linkages between USydney and other leading law schools for ADR (notably over 2020 the University of Hong Kong)

–       Expanded connections between academia generally and professional bodies (eg ACICA, AFIA), government (especially DFAT, including through February 2020 co-organised SCIL conference in Sydney) and international organisations (including UNCITRAL via UNCCA.org.au Fellowship and October 2020 conference (recorded) presentation, and representation on the Academic Forum for ISDS as one of only a few Australians among over 100 professors world-wide: https://www.cids.ch/academic-forum-concept-papers)

–       Helped draft and publicise new-generation Arbitration Rules for ACICA

ANJeL’s “Team Australia” Students Second in INC Negotiation & Arbitration Moot

A cross-institutional “Team Australia” is Runner-Up in the 19th Intercollegiate Negotiation Competition “in” Tokyo last weekend (but held remotely this year). The Team also won the Chartered Institute of Arbitrators Prize for the best score in the English-language arbitrations held on 14 November (applying the UNIDROIT Principles of International Commercial Contracts, but also other international instruments). Over 15 November the Team successfully negotiated a complex cross-border joint venture agreement.

This year’s Team included Stella Lee (who also competed previously in English) and Tomohiro Sato from Sydney Law School, several students from ANU (another founding core partner of the Australian Network for Japanese Law, ANJeL) and others from various law schools across Australia. Stella and Tomo joined two others in the Japanese language division sub-Team (matched against Gakushuin and Osaka Universities). There were also two sub-Teams competing in the English language division (matched against Rikkyo, Sophia, Tokyo and Chulalongkorn Universities – “Chula” joined for the first time and all but one opposing universities also ended up in the top seven, so competition over Zoom was intense). The overall winner was the National University of Singapore, competing in the English-language division.

A primary coach was CAPLUS Associate Dr Nobumichi Teramura (and a co-editor of our co-edited Kluwer book on Asia-Pacific international dispute resolution, out next month), who also helped coach Team Australia to win the competition in 2018 and come second in 2019 (pipped by the University of Tokyo). The main academic coordinator was again ANJeL Advisor and ANU Professor Veronica Taylor. My modest contributions involved some introductions to arbitration and international contracting, judging a mock arbitration by the Team, providing ANJeL funding for coaching (plus a donation) and assessing the USydney students.

Heartfelt thanks also go to Dr Carol Lawson (UNSW) and Kieran Pender (helping with coaching this year and/or previously), Peter Cleary, A/Prof Jeanne Huang (for the practice moot with me), Cara Scarpato, A/Prof Stacey Steele (UMelbourne-based ANJeL Judges Program convenor) and Huw Watkins. Partial travel funding for some LLB students was available (as last year) from the Australian government’s New Colombo Plan grant administered by ANU, but was deferred due to pandemic-related travel restrictions.

Team Australia students had to conduct all their preparations remotely across multiple universities, missing out on the usual weekend practising face-to-face in Canberra plus final sessions together in Tokyo before the weekend competition, while preparing for end-of-year course assessments. Congratulations on rising to the extra challenges!

ANJeL/JSAA “Japanese Law in Context” Podcasts Project

Overview: The Japan Foundation Sydney has provided $5000 for this project to produce and widely disseminate by mid-March 2020 a series of 15-20 video-recorded interviews or podcasts involving Japanese Law experts across Australia, Japan, North America and other parts of Asia. These recordings aim to: (a) supplement courses in Japanese Law (and Japanese Studies more generally) in universities; (b) increase community awareness and engagement with Japanese law in socio-economic and comparative context; (c) create a snapshot and oral history of Japanese Law studies – all mainly for Australia, but also for Japan and beyond.

This is a joint project between ANJeL (Australian Network for Japanese Law) and the JSAA (Japanese Studies Association of Australia). ANJeL Co-directors Profs Luke Nottage, Heather Roberts and Leon Wolff will be responsible for content planning and project coordination, while JSAA will administer funding for three former/current PhD students and Research Assistants (Ana Ubilava, Nobumichi Teramura and Melanie Trezise). Both JSAA and ANJeL will publicise the project outcomes via their websites and their own or affiliated networks.

Sydney Law School will also provide logistical support through a Canvas website for Zoom recordings (thanks to Ross West) and a video-recording/editing suite (thanks to Andy Netherington).

Project Description: The team will first schedule and conduct interactive interviews with Japanese law experts, and/or help them plan and present (one-way) podcasts, outlining distinctive features of their main field(s) in Japanese Law particularly from comparative, interdisciplinary and/or historical perspectives. Then we will edit down these recordings to around 10-15 minutes each, and upload on or via the websites of the cross-institutional ANJeL and the Japan Studies Association of Australia as well as Youtube.

These resources will be widely publicised to be used freely for Japanese Law courses taught particularly by ANJeL’s core universities (USydney, ANU and QUT) as well as others in Australia (including affiliates like UMelbourne), but the resources will also be available for Japanese or comparative law courses taught in Japan and further afield. They can be used to complement course readings, often written by interviewees/presenters, who may also be invited to join classes remotely (depending on time zones and availability). Depending on the topic area and personal preferences, the recordings will comprise interviews (sometimes involving multiple interviewers and/or interviews), or occasionally subject-matter podcast summaries or key points. Depending on the interviewees, some of whom are now more senior scholars, questions may invite more personal reflections (on how the Japanese Law sub-field or approaches to studying it have evolved) or prompt more direct comparisons with law and practice in Australia. Once edited and uploaded for public viewing, the recordings will be widely publicised through ANJeL and JSAA (each with many hundreds of members in Australia and abroad) as well as their affiliated and various websites (including this Blog), as a resource for the wider community.

The core group of those recorded will be co-lecturers in the ANJeL Kyoto and Tokyo Seminars in Japanese Law taught to students from various Australian and Japanese universities for over a decade in Japan each February, hosted by Ritsumeikan University. (Although not taught offshore next year due to the pandemic, ANJeL core and other universities will be offering Japanese Law courses onshore supplemented by resources like these.) Below under we list the 2020 Seminars’ topics and lecturers from over a dozen universities across Australia and Japan. They will be supplemented by other Japanese Law scholars in Australia (like ANJeL Advisor Prof Veronica Taylor, and UMelbourne / ANJeL Judges Program convenor A/Prof Stacey Steele), in Japan, Europe, North America and other parts of Asia – especially those with interests in Australia (like past ANJeL Visitors). We will also add a few interviews with renowned legal practitioners renowned for bilateral engagement, such as Akira Kawamura (former IBA President and USydney alumnus) and one of the past judicial officers seconded from Japan for year-long research studies (with prior approval of course from the Supreme Court of Japan). Those recordings will further broaden the potential audience, beyond academia. It is also expected that some recordings will be attractive and used for Japanese Studies courses, not just for law courses.

Potential interviewees:

(i) In a first stage, from mid-November until mid-December, the project team will schedule and conduct interviews (or otherwise invite one-way podcast recordings) focusing on the following topics and respective co-lecturers from the February 2020 Kyoto and Tokyo Seminars in Japanese Law, co-hosted by ANJeL (core institutions) and Ritsumeikan University Law School:

  1. Introduction to the Japanese Legal System

Prof. Kent Anderson (Australian National University) & Prof. Tetsuro Hirano (Ritsumeikan University, School of Law) [interviewed by A/Prof Heather Roberts]

2. Criminal Justice & Law

Prof. Makoto Ibusuki (Seijo Univ.) & Prof. Kent Anderson (ANU)

3. Politics and Constitutional Law

Prof. Giorgio Colombo (Nagoya University) & Prof. Akihiko Kimijima (Ritsumeikan University) [interviewed by A/Prof Heather Roberts and/or Melanie Trezise]

4. Civil Justice and Law

Prof. Yoko Tamura (University of Tsukuba, Law School) & Prof. Luke Nottage (The University of Sydney/ USyd)

5. Arbitration and ADR

Prof. Giorgio Colombo (Nagoya University) & Prof. Nottage (USyd)[interviewed by Nobu Teramura]

6. Working as International Attorneys in Japan:

Mr. Jiri Mestecky (Attorney at Law, Partner, Kitahama Partners) & Mr. Yoshihiro Obayashi (Partner, Yodoyabashi &Yamagami Legal Professional Corporation/ Ritsumeikan School of Law Graduate) Osaka [interviewed by Melanie Trezise]

7. Government and Law

Prof. Narufumi Kadomatsu (Kobe University) & Prof. Wolff (QUT)

8. Gender and Law

Prof. Kyoko Ishida (Waseda University) & Prof. Wolff (QUT)

9. Contracts, Consumers & Law

Prof. Kenji Saigusa (Waseda University) & Prof. Nottage (USyd)

10. Pop Culture & Law

Prof. Wolff (QUT) [interviewed by Melanie Trezise]

11. Introduction to the Japanese Economy and Corporate Governance

Prof. Souichirou Kozuka (Gakushuin Univ.) & Prof. Leon Wolff (Queensland University of Technology/QUT)

12. Labour Law

Prof. Takashi Araki (University of Tokyo) & Prof. Wolff (QUT)

13. Finance and Law

Mr. Akihiro Wani (Senior Counselor/ Morrison & Foerster) & Prof. Tetsuo Morishita (Sophia University) [interviewed by Melanie Trezise]

14. Tax Law

Mr. Justin Dabner [now retired as A/Prof @] (James Cook University) & [interviewed by] Mr. Micah Burch (USydney)

(ii) In a second stage, for recordings mostly probably over January 2021, the project team will also reach out and connect with co-organisers and past co-lecturers for some (joint or separate) recordings, thus making them feel still part of this group and more likely therefore to contribute to future Seminars or other collaborations with Australia. This cohort includes Profs Chihara Watanabe (Ritsumeikan), Noriko Kawawa (Doshisha), Tomohiro Yoshimasa (Kyoto University), Tatsuya Nakamura (Kokushikan University) and Michelle Tan (recently retired and now director of Seikyo).

Past ANJeL Visitors we may record include Profs Miho Aoi (Gakushuin), James Claxton (Rikkyo), Marc Dernauer (Chuo) and Towa Niimura (Seikei University – who also has observed the Kyoto and Tokyo Seminar classes). Among Japanese Law scholars further afield, in the USA we will approach some senior scholars in the US (Profs John Haley, Frank Upham, Daniel Foote and Mark Ramseyer) as well as some younger ones (Profs Annelise Riles, Mark West); and similarly in Europe (eg Profs Harald Baum, Dimitri Vanoverbeke and Beatrice Jazulot) as well as other parts of Asia (eg Chulalongkorn University Prof Sakda Thanitcul).  

Comparing Case Disposition Times for Judgments related to International Arbitration (& Bibliography for Australia)

As elaborated in (abstracts of) chapters 4 and 5 of my book by Elgar forthcoming in February 2021, comparing international arbitration in Australia and Japan in regional and global contexts, the case law in both countries applying UN instruments (then New York Convention and Model Law) has shared an internationalist pro-arbitration trajectory. This can be seen also through the secondary literature on international arbitration law published in Australia in recent years, listed on the Blog here through to end-2014 and published subsequently as listed at the end of this posting below (with thanks to CAPLUS intern James Tanna).

However, this shift has really only become more consistent in Australia over the last decade, as indicated also with Nobu Teramura et al here. The tardiness is partly due to residual more English approaches to arbitration law and dispute resolution generally. Another reason arises because Federal and diverse State/Territory courts share jurisdiction over International Arbitration Act (IAA) matters – making it slower and hard to move in a consistent direction.

A. IAA-related Case Disposition Times in the Federal Court of Australia

A related challenge for Australia is that even when the outcome rightly upholds an international arbitration agreement or award, IAA-related case disposition times in Australian courts seem to have remained quite lengthy. In 2013 and (with Diana Hu) in 2016 I published articles analysing timeframes taken by the Federal Court (arguably the most pro-arbitration over the last 15 years). Statistical analysis showed that they had not changed much in the three years before the 2010 IAA amendments that adopted almost all the 2006 revisions to the Model Law (now also being considered by Japanese law reformers).

For chapter 5 of the Elgar book, I added a statistical analysis for 21 significant IAA-related Federal Court of Australia cases (listed in this PDF) filed from August 2016 (WDR Delaware) and decided by July 2020 (although not counting Energy City Qatar, as the first-instance decision of 16 July 2020 to enforce the foreign award has been appealed). These 21 included two judgments that were not directly but still somewhat related to the IAA, and which largely cancel each other out for timeframes. One is another judgment in the Sino Dragon dispute, where Beach J decided quite quickly (1.6 months) and briefly not to follow eg Hong Kong and apply an “indemnity costs in principle” approach to failed challenges to awards. The second was a judgment in the Rinehart trust domestic arbitration under the Commercial Arbitration Act, but discussing also the IAA.

Overall, the average case disposition time was 8.1 months, with a median of 5.2 months, with these figures largely unchanged if we exclude both of the last-mentioned cases. If we then exclude an outlier (Sanum, 30.8 months to final judgment), the longest case disposition time becomes 18.4 months (Dalian Huarui), still with a median of 5.2 but standard deviation dropping from 7.3 to 5.2 months. Overall, these typical timeframes for the four years from mid-2016 do suggest some improvement compared to the three preceding three-year periods (see summary Table 5.2 here)

However, it remains disappointing that the numbers of cases being contested across all Australian courts have remained at quite high levels, rather than lawyers bringing fewer cases as might have been hoped under clearer and more pro-arbitration law through the 2010 (and 2015) amendments plus related case law. Figure 5.6 (here) charts a significant step up in litigation decided in the three calendar years after the 2010 amendments, and indeed a second step up over 2014-18, suggesting enduring formalisation around international arbitration in Australia. However, a significant proportion of judgments in 2017-8 made only passing reference to the IAA (thus being categorised “Other”), and total judgments rendered annually (especially non-Other) started to drop back from 2017. Nonetheless, the data analysis for 2020 only ran until end-August, and even if annual cases stabilise at around 2018-19 levels there will still have been a significant step-up compared to 2010.

It would also be interesting to compare case disposition times in non-federal courts in Australia, and in courts across Japan, as well as checking if Japanese judgments related to international cases under its Arbitration Act have increased much since its enactment in 2003. Unfortunately, it is much harder to obtain such data, and also to generalise from the Japanese case filings as not all judgments are reported (unlike in Australia including via Austlii).

B. Secondary Literature on International Arbitration in Australia since 2015

B.1 Books, chapters and journal articles

Evans, P. and G. Moens, eds (2015). Arbitration and Dispute Resolution in the Resources Sector An Australian Perspective. Cham, Springer International Publishing.

Holmes, M. and C. Brown (3rd ed 2018). The International Arbitration Act 1974: A Commentary, LexisNexis.

Lewis, D. (2016). Interpretation and Uniformity of the UNCITRAL Model Law on International Commercial Arbitration: Australia, Hong Kong and Singapore. Kluwer

Nottage, L. (2021). International Commercial and Investor-State Arbitration: Australia and Japan in Regional and Global Contexts Cheltenham, Edward Elgar.

* * *

Allsop, J. (2018). Commercial and Investor-State Arbitration: The Importance of Recognising Their Differences. ICCA Congress 2018. Sydney.

Carroll, L. and F. Williams. (2019). “Australia: Investor-State Arbitration Laws and Regulations 2020.” from https://iclg.com/practice-areas/investor-state-arbitration-laws-and-regulations/australia.

Dickson-Smith, K. D. and B. Mercurio (2018). “Australia’s Position on Investor-State Dispute Settlement: Fruit of a Poisonous Tree or a Few Rotten Apples?” Sydney Law Review 40(2): 213.

Garnett, R. (2017). “Arbitration of Cross-Border Consumer Transactions in Australia: A Way Forward?” Sydney Law Review 39(4): 569-599.

Holmes, M., L. Nottage and R. Tang (2016). “The 2016 Rules of the Australian Centre for International Commercial Arbitration: Towards Further ‘Cultural Reform’.” Asian International Arbitration Journal 12(2): 211-234.

Kawharu, A. and L. Nottage (2018). “Renouncing Investor-State Dispute Settlement in Australia, Then New Zealand: Déjà Vu.” Sydney Law School Research Paper 18/03.

Kawharu, A. and L. Nottage (2018). “The Curious Case of ISDS Arbitration Involving Australia and New Zealand.” University of Western Australia Law Review 44(1 2): 70.

Kawharu, A. and L. Nottage (2018). Foreign Investment Regulation and Treaty Practice in New Zealand and Australia: Getting it Together in the Asia-Pacific? International Investment Treaties and Arbitration Across Asia. L. Nottage and J. Chaisse, Brill | Nijhoff: 443–485.

Kawharu, A. and L. Nottage (2019). Towards an Asia-Pacific Regional Investment Regime: The Potential Influence of Australia and New Zealand as a Collective Middle Power. J. Chaisse. Cambridge, Cambridge University Press.

Kurtz, J. and L. Nottage (2015). “Investment Treaty Arbitration ‘Down Under’: Policy and Politics in Australia.” ICSID Review – Foreign Investment Law Journal 30(2): 465-480.

Linderfalk, U. (2017). “Philip Morris Asia Ltd. v. Australia – Abuse of Rights in Investor-State Arbitration.” Nordic journal of international law = Acta scandinavica juris gentium 86(3): 403-419.

Luttrell, S. and I. Devendra (2015). “Inherent jurisdiction and implied power to stay proceedings in aid of arbitration: ‘A nice question’.” Journal of International Arbitration 32(5): 509.

Luttrell, S., C. Hassall, V. Lemaic and M. d. Marco. (2020). “International Arbitration 2020: Australia.” from https://practiceguides.chambers.com/practice-guides/international-arbitration-2020/australia.

Monichino, A. (2015). “The future of international arbitration in Australia.” Victoria University Law and Justice Journal 5(1): 60-74.

Monichino, A. (2016). “Arbitration Downunder – Two Steps Forward, One Step Back; Samsung C&T Corporation v Duro Felbuera Australia Pty Ltd [2016] WASC 193”. Australian Construction Law Newsletter 169: 28-31.

Monichino, A. (2016). “Privilege Disputes in International Arbitration.” The ACICA Review 4(2): 46-49.

Monichino, A. and A. Fawke (2014). “Enforcement of Foreign Arbitral Awards, Issue Estoppel and Comity: Developments in Australia”. Asian Dispute Review 16(1): 10-14.

Monichino, A. and A. Fawke (2014). “International arbitration in Australia: 2013/2014 in review.” Australasian Dispute Resolution Journal 25.

Monichino, A. and A. Fawke (2015). “International arbitration in Australia: 2014/2015 in review.” Australasian Dispute Resolution Journal 26.

Monichino, A. and A. Fawke (2016). “International arbitration in Australia: 2015/2016 in review.” Australasian Dispute Resolution Journal 27.

Monichino, A. and A. Fawke (2018). “International Arbitration in Australia: 2016/2017 In Review.” Australasian Dispute Resolution Journal 28.

Monichino, A. and A. Fawke (2019). “International Arbitration in Australia: 2017/2018 in Review.” Australasian Dispute Resolution Journal 29.

Monichino, A. and L. Nottage (2018). “Australia Country Update.” Asian Dispute Review (July 2018).

Monichino, A. and N. Teramura (2020). New Frontiers for International Commercial Arbitration in Australia: Beyond the ‘Lucky Country’. New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution. L. Nottage, S. Ali, B. Jetin and N. Teramura, Wolters Kluwer.

Morrison, J. (2019). “Recent Developments in International Arbitration in Australia 2017-2018.” Journal of International Arbitration 36(3): 416.

Morrison, J. and M. Flanagan (2016). “Recent Developments in International Arbitration in Australia 2015/2016.” Journal of International Arbitration 33(6): 723-737.

Nottage, L. (2014). “Investor-State Arbitration: Not in the Australia-Japan Free Trade Agreement, and Not Ever for Australia?” Journal of Japanese Law 38: 37-52.

Nottage, L. (2015). “Do Many of Australia’s Bilateral Treaties Really Not Provide Full Advance Consent to Investor-State Arbitration? Analysis and Regional Implications.” Transnational Dispute Management 12: 1-18.

Nottage, L. (2015). “Investment Treaty Arbitration Policy in Australia, New Zealand and Korea.” Journal of Arbitration Studies 25(3): 185-223.

Nottage, L. (2015). “The Evolution of Foreign Investment Regulation, Treaties and Investor-State Arbitration in Australia.” New Zealand Business Law Quarterly 21: 266-276.

Nottage, L. (2016). “The TPP investment chapter and investor-state arbitration in Asia and Oceania: assessing prospects for ratification.(Trans-Pacific Partnership Agreement, 2015)(The Age of Mega-Regionals: TPP & Regulatory Autonomy in International Economic Law).” Melbourne Journal of International Law 17(2): 313.

Nottage, L. (2017). Investor-State Arbitration Policy and Practice in Australia. Second thoughts : investor-state arbitration between developed democracies. A. de Mestral. Ontario, Canada, Centre for International Governance Innovation: 377-430 (also in 2016: CIGI Investor-State Arbitration Series Paper 6: http://ssrn.com/abstract=2685941)

Nottage, L. (2020). “Confidentiality and Transparency in International Arbitration: Asia-Pacific Tensions and Expectations.” Asian International Arbitration Journal 16(1): 1-23.

Nottage, L. and A. Ubilava (2018). “Costs, Outcomes and Transparency in ISDS Arbitrations: Evidence for an Investment Treaty Parliamentary Inquiry.” International Arbitration Law Review 21(4): 111-117.

Nottage, L. and J. Hepburn (2018). Investment Treaty Arbitration Claims Over Tobacco Plain Packaging: Running Out of Puff? Hochelaga Lectures 2017. A. Reyes. Hong Kong, Hong Kong University Faculty of Law.

Nottage, L. and J. Morrison (2017). “Accessing and Assessing Australia’s International Arbitration Act.” Journal of International Arbitration 34(6): 1-43.

Nottage, L. and R. Garnett (2019). The Australian Centre for International Commercial Arbitration. Max Planck Encyclopedia of International Procedural Law H. R. Fabri, Oxford University Press.

Shankar, T. (2016). “Natural justice in international commercial arbitration: TCL air conditioner (Zhongshan) Co Ltd v Castel electronics Pty Ltd.” University of Western Australia Law Review 40(2): [113]-122.

Teramura, N., L. Nottage and J. Morrison (2020). Judicial Control of Arbitral Awards in Australia. The Cambridge Handbook of Judicial Control of Arbitral Awards. L. A. DiMatteo, M. Infantino and N. M.-P. Potin, Cambridge University Press: 175-197.

Trakman, L. (2018). The Reform of Commercial Arbitration in Australia: Recent and Prospective Developments The developing world of arbitration: a comparative study of arbitration reform in the Asia Pacific. A. Reyes and W. Gu. Oxford [UK], Hart Publishing: 251-278.

Trakman, L. E. and D. Musayelyan (2016). The Repudiation of Investor–State Arbitration and Subsequent Treaty Practice: The Resurgence of Qualified Investor–State Arbitration, Oxford University Press. 31: 194-218.

Ubilava, A. and L. Nottage (2020). Novel and Noteworthy Aspects of Australia’s Recent Investment Agreements and ISDS Policy: The CPTPP, Hong Kong, Indonesia and Mauritius Transparency Treaties. New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution. L. Nottage, S. Ali, B. Jetin and N. Teramura, Wolters Kluwer.

B.2 ACICA Review and other shorter articles

Bernard, C. M. and J. Morrison (2018). “Amendments to the International Arbitration Act 1974 (Cth).” The ACICA Review 6(2): 9-10.

Bonnell, M., D. Mallett, R. Gao and K. Tam (2016). “Philip Morris v Australia: lessons for structuring investments.” The ACICA Review 4(1): 20-21.

Brimfield, F. (2016). “Gutnick v Indian Farmers Fertiliser Cooperative Ltd: Another strong example of Australian Court’s pro-enforcement attitude.” The ACICA Review 4(1): 26-28.

Chung, L. and P. Winch (2016). “Indemnity costs and the enforcement of arbitral awards in Australia.” The ACICA Review 4(2): 16-17.

Dearness, M. and L. Chung (2018). “Case Note: Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (in liquidation).” The ACICA Review 6(2): 11-13.

Dearness, M., L. Chung and P. Winch (2018). “Case Note: Trans Global Projects v Duro Felguera Australia ” The ACICA Review 6(1): 11-13.

Delaney, J. (2018). “A race to set aside or enforce the award: Hyundai Engineering & Steel Industries Co Ltd v Alfasi Steel Constructions (NSW) Pty Ltd.” The ACICA Review 6(2): 25-27.

Gleeson, M. (2015). “Evidence in international commercial arbitration: Some issues.” Victorian Bar News(158): 40-45.

Govey, I. (2018). “Australia’s Framework for International Commercial Arbitration.” The ACICA Review 6(2): 21-24.

Horrigan, B., I. Bacvic and P. Holloway (2017). “Federal Court Sets Aside International Arbitration Awards and Removes an Arbitrator.” The ACICA Review 5(2): 19-20.

Jones, D. (2019). “Arbitration in Australia – Rising to the Challenge.” The ACICA Review 7(2): 28-36.

Karantonis, J. (2015). “The 3rd Annual International Arbitration Conference in Sydney.” The ACICA Review 3(2): 43-45.

Monichino, A. (2016). “Privilege Disputes in International Arbitration.” The ACICA Review 4(2): 46-49.

Monichino, A. (2017). “Enforcement of Arbitration Agreements Against Non-Signatories: Which Law (the Chicken and the Egg)?” The ACICA Review 5(2): 43-46.

Monichino, A. (2019). “Application of Arbitration Agreements to Non-Signatories: The ‘Through or Under’ Route.” The ACICA Review 7(2): 47-50.

Monichino, A. and M. Carroll (2019), “The Proper Approach to the Interpretation of Arbitration Agreements: Australian High Court Speaks Out”. The ACICA Review 7(1): 8-15.

Nottage, L. (2017). “Book review: Dean Lewis, ‘The Interpretation and Uniformity of the UNCITRAL Model Law on International Commercial Arbitration: Focusing on Australia, Hong Kong and Singapore’ ” The ACICA Review 5(1): 48-51.

Paton, A. and L. Nottage (2019). “Confidentiality versus Transparency in International Commercial and Investment Treaty Arbitration in Australia, Japan and Beyond.” The ACICA Review 7(2): 54-56.

Quan-Sing, J. and L. Hands (2016). “Samsung C&T Corporation v Duro Felbuera Australia Pty Ltd [2016] WASC 193.” The ACICA Review 4(2): 20-23.

Sladojevic, A. (2015). “The International Arbitration Act 1974 – summarising recent legislative amendments.” The ACICA Review 3(2): 39-40.

Teramura, N. (2018). “Australian Perspectives on International Commercial Dispute Resolution for the 21st Century: A Symposium.” The ACICA Review 6(1): 36-38.

Thompson, S. (2016). “Federal Court of Australia imposes substantial costs order as a deterrent to those requesting that it set aside or intervene in Australian International Arbitral Award.” The ACICA Review 4(2): 18-19.

Ubilava, A. (2017). “International Investment Arbitration Across Asia: A Symposium.” The ACICA Review 5(1): 45-47.

Wakefield, J. and K. Narkiewicz (2015). “Australia’s new arbitration regime: five years on.” LSJ: Law Society of NSW Journal(8): 72.

Improving the Effectiveness of the Consumer Product Safety System: Australian Law Reform in Asia-Pacific Context

[This is the original draft for a posting that was significantly revised and published under a different title on 29 October 2020 by The Conversation, prompting also interviews/podcasts with ABC National Radio “Life Matters” on 5 November 2020 and “Counterpoint” on 14 December 2020. This work is related to my ongoing ARC-funded joint research project DP170103136 and a JCP article published earlier this year (manuscript on SSRN.com here). A version will be presented and then discussed in the 1 December 2020 webinar for the International Association of Consumer Law (pre-recording available here) and the Consumer Law Roundtable hosted this year by QUT on 3 December. (Last updated: 1 December 2020.)]

The COVID-19 pandemic has heightened our awareness of safety risks, but also the socio-economic costs needed to reduce them. Public health interventions can also collide with human rights and constitutional principles, and undermine state capacity. Australia’s policy-makers and regulators are still facing many difficult choices to manage this new disease.

In consumer law, they and peak NGOs like Choice have also been busy grappling with a range of pandemic-related issues. These range from hand sanitiser quality through to refunds for airfares and other travel services. Nonetheless, hopefully policy-makers can now get back to some unfinished business, as we learn to live with COVID-19 while praying for a vaccine or cure.

In October 2019 the Treasury released its Consultation Regulatory Impact Statement (RIS) entitled “Improving the Effectiveness of the Consumer Product Safety System”. This was part of a suite of reform initiatives agreed after the 2016-7 review of the Australian Consumer Law (ACL), which re-harmonised consumer rights and regulatory powers nationally from 2011.

The review’s Final Report and now the RIS considered adding to the ACL an EU-style “general safety provision”. European countries (such as the UK in 1987, then the EU from 1992), as well as Hong Kong, Macau, Malaysia (1999), Canada (2010) and Singapore (2011, partially), have introduced such a GSP. It was discussed in several earlier government inquiries, notably by the Productivity Commission in 2006 and 2008, but the Commission concluded that the ACL should try some other measures first. A GSP would require manufacturers and importers to ensure that they only supply safe consumer products, otherwise risk public law sanctions from regulators.

Choice found that many Australians wrongly assume we already have this requirement. Yet the ACL currently only allows mandatory safety standards to be set pro-actively for specific types of general consumer products (currently around 40, many involving higher-risk children’s products). These specific standards take a long time to develop, usually only after serious injuries or deaths particularly within Australia. A recent example is renewed efforts to introduce a mandatory standard around button batteries, after a third child died in July and the AFL withdrew thousands of bracelets in October 2020. Regulators can also issue bans (around 20) for products found unsafe, but this is an even more reactive response.

Also only after harm arises, manufacturers can be indirectly incentivised to supply safe products by harmed consumers potentially bringing strict liability compensation claims. But such ACL product liability claims, requiring individuals to prove a “safety defect”, are becoming proportionately fewer. Even large class action law firms prefer focusing resources on more straightforward and large-scale claims by shareholders against listed companies for misleading conduct.

The Treasury’s draft RIS invited public comment on various reform options and three perceived problems with Australia’s consumer product safety system. One problem was misunderstanding about the current ACL regime. A second was its largely reactive nature, impacting on regulatory interventions and supplier behaviour. A third was considerable harm from unsafe consumer products. The ACCC identified 780 deaths and 52000 injuries annually. It also estimated at least a $4.5 billion annual economic cost, assuming around a $200,000 “value of a statistical life year” for premature deaths and disability. There were also costs of $0.5 billion in direct hospital costs for governments, and further costs associated with minor injuries and consequential property loss. (These seem conservative estimates, especially as the US consumer safety regulator recently US$1 trillion costs annually for that country – although the methodology and assumptions for that estimate are not set out in the UNCTAD report.)

My own Submission and a related peer-reviewed article added comparative empirical data in support of a GSP. First, the OECD Global Recalls portal shows that Australia reported higher per capita voluntary recalls over 2017-9 than Korea, the UK, Japan and the USA. Australia reported a rate similar to Canada, at least on the OECD data, but Canada’s legislation has a more expansive duty on suppliers to report product accidents to regulators compared to that added to the ACL. A large proportion of our recalls involve child products, mostly from China.

[Table 1: Comparing Australia’s Recalls (2017-9)]

Secondly, annual recalls have been growing in Australia, as pointed out by Dr Catherine Niven et al (co-researchers for our ARC-funded project comparing child product safety) and various submissions by Choice. The uptick is noticeable from around 2012, tracking burgeoning e-commerce and more importers dealing with more manufacturers abroad. We can anticipate more more consumer product safety problems due to further online sales during the pandemic, and the ACCC issued warnings in April 2020. So far this year, though, annual recalls are down, according to the around 240 by end-October (excluding automobile recalls), compared to around 400 over all of 2019. This drop is likely to be temporary and caused by: (a) pandemic-related recession causing less consumer spending, (b) less time and energy for consumers to complain about unsafe products, (c) businesses struggling with finances and staff so not checking products and conducting or reporting recalls as much, and (d) less regulatory capacity to sweep bricks-and-mortar shops for unsafe products or monitor online platforms (except perhaps the larger ones).

[Figure 1: Australia’s Recalls (1998-2019)]

Perhaps for similar reasons, the Canadian government website shows a drop in recalls reported there this year too: about 130 by end-October compared to 251 over 2019. That website also curiously records fewer recalls annually for “consumer products” (excluding vehicles, foods and healthcare products) than reported on the OECD portal, suggesting Canada’s recall rate per capita may instead be significantly lower than Australia’s. Importantly, it shows a significant drop in annual recalls from 2009 (306) and 2010 (299) to 2011 (258) and 2012 (236), followed by annual recalls averaging around 250 consistently from 2013-2019. The GSP introduced by the Canada Product Safety Act 2010 therefore seems to have had a positive impact, shifting supplier mindsets towards adopting a more pro-active approach including better safety assessments before putting goods onto the market. Singapore also reported a drop in unsafe children’s products found there the year after it introduced a form of GSP through 2011 Regulations.

In further contrast to Australia, the USA reported significantly fewer recalls following the introduction of third-party conformity assessment for toy exporters after problems emerged particularly with China-sourced products around 2008. Dr Niven et al further note that Australian recall notices do not need to include some significant information, eg regarding (even de-identified) injuries. Many Australian recalls of child products also involve breaches of the mandatory standards that have actually been set. (For more details, see her PhD thesis now available here.)

Our regulators could try to sanction local suppliers more for such breaches. But introducing a broader GSP would encourage a “paradigm shift” needed among Australian firms. As discussed in my article, this ACL reform could complemented (but not replaced) by some of the other RIS options, and/or a “product safety substantiation notice” power (mirroring ACL s219, allowing regulators to require suppliers to substantiate claims or misrepresentations that might be misleading).

Introducing a GSP would make Australian suppliers think more carefully about (and document) safety assessments before putting consumer products on the market. This is more efficient and safer than releasing products and then trying to recall them after problems start to be reported, hoping not too many (more) consumers get harmed. It would also encourage Australian firms to “trade up”, like counterparts overseas, to the standards expected in many of our trading partners.

[Luke Nottage receives funding from the Australian Research Council: DP170103136, “Evaluating consumer product regulatory responses to improve child safety”. He provides occasional pro bono advice to Choice regarding consumer law and policy reform, and acknowledges assistance from them in compiling from government recalls data what is reproduced here as Figure 1.]