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.

(Un)Coddling the Mind in the USA and Australia [… and Japan?]

Written by: Karl Faase (CEO, Olive Tree Media) and Luke Nottage
[Below is our review, published in abridged form on 25 October 2018 by Eternity News (without hyperlinks and under a different title), for an important new book entitled “Coddling the American Mind“. The book, by Greg Lukianoff and Jonathan Haidt, argues that a new generation is emerging in the USA that believes three “untruths” contrary to the lessons from mainstream psychology nowadays as well as from the wisdom literatures from many cultures:
1. What doesn’t kill me makes me weaker (so: always keep me “safe”!)
2. Always trust my feelings (so: don’t engage my rational brain!)
3. The world is a battle been good and bad people (so: don’t look for good within everyone!)
Our review suggests that drivers of these untruths are also evident in Australia, but (so far) to a lesser degree. I think the drivers may be even weaker in Japan, with these three untruths still contrary to traditional wisdom there. But that further comparison would be an interesting topic for future research.]
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Getting into Gear the Japan International Mediation Centre – Kyoto

Written by: Profs James Claxton (Kobe U) and Luke Nottage
[This is an unfootnoted draft of a posting prepared for the Kluwer Mediation Blog.]
These are heady days in international mediation circles. A panel discussion earlier this summer at an UNCITRAL conference entitled “Feel the Earth Move – Shifts in the International Dispute Resolution Landscape,” dedicated largely to mediation, captures the sentiment. Reasons for the excitement include the approval of a draft of the UNCITRAL treaty for enforcing mediated settlement agreements (the Singapore Mediation Convention), a reported 20% increase in commercial mediation in the United Kingdom, commercial mediation competitions springing up in Asia (Melbourne in 2017 and Hong Kong in 2018), and a “Belt and Road” initiative that is giving priority to mediation, characterized by some in the Chinese government as one of the “trinity” of international dispute services.
Where these movements fall on the Richter scale, and whether mediation will take an equal place in the dispute resolution pantheon, will only be known with time. But the apparent momentum offers an opportunity to return our attention to the creation of an international mediation center in Kyoto – an initiative first considered in our previous post on the Center and a related post concerning the broader reworking of international dispute resolution services in Japan. Those posts identified an initiative by the Japan Association of Arbitrators (JAA) and Doshisha University in Kyoto to create an institution, the Japan International Mediation Center in Kyoto (JIMC-Kyoto), to administer international commercial mediations with operations beginning in late 2018. If the announcement of its creation means that the Centre was put into first gear, the recent developments outlined below mean that the JIMC-Kyoto has moved into second gear. But traffic is usually heavy in Japan and things are still moving slowly.

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Japan’s (In)Capacity in International Commercial Arbitration

Written by: Nobumichi Teramura (UNSW PhD candidate) & Luke Nottage (USydney)
[These are the non-footnoted/hyperlinked opening paragraphs of a posting forthcoming on the Kluwer Arbitration Blog, which follows on from our analysis of ‘Australia’s (In)Capacity‘ published on 21 September 2018. The full draft of this posting about Japan will be uploaded after it appears on the Kluwer Arbitration Blog.]
Not long after the ICCA Congress held in Sydney, the Japan International Dispute Resolution Center (JIDRC) was established in Osaka on 1 May 2018, with some fanfare from the Japanese government and local legal circles. ‘JIDRC-Osaka’ does not provide arbitration services but offers specialist facilities for international arbitration hearings and other forms of Alternative Dispute Resolution (ADR). Facilities are reasonably priced as they are housed quite centrally in a modern Ministry of Justice building. Further, on 1 September, the International Arbitration Center in Tokyo (IACT) started operation as the first Asian international arbitration body specialised in intellectual property disputes. Unusually for international arbitration institutions, the IACT’s website highlights a range of former judges agreeable to serving as presiding arbitrators, including Dr Annabelle Bennett SC from Australia.
While these new initiatives are based on the ‘Basic Policy on Economic and Fiscal Management and Reform 2017’ approved by the Cabinet of Japan, it is unclear whether the government will issue something equivalent to the glossy Austrade brochure to try to promote instead Japanese international commercial arbitration (ICA). But the Justice, Sports, Trade and Transportation ministries are reportedly discussing how they should promote Japanese ICA to the world in English. This blog posting already sketches convincing and unconvincing aspects involved in developing Japan as another regional arbitration hub, keeping in mind the points in the Austrade brochure and our previous blog posting regarding Australia.

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“Contract Law in Japan” – Kluwer Book Preface

With Profs Hiroo Sono (Hokkaido U), Kenji Saigusa (Waseda) and Andrew Pardieck (Southern Illinois U), I was pleased to co-author a book manuscript on “Contract Law in Japan”, which is now in press. As mentioned in our Preface reproduced below, it aims to provide the first English-language volume incorporating an analysis of Japan’s first comprehensive reforms to the Civil Code since the late 19th century, enacted in 2017 and coming into force from 2020.

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“Civil Society and Postwar Pacific Basin Reconciliation: Wounds, Scars and Healing” (Yasuko Claremont, ed, Routledge 2018) – Book Launch

[These are notes prepared for my launch of this new book by a friend and former colleague, on Thursday 5 July 2018 during the biennial Asian Studies Association of Australia. The second half is posted on 1 August 2018.]
I am honoured and humbled – in three ways – to launch this latest book by my former colleague at USydney’s Japanese Studies Department, Dr Yasuko Claremont, which examines “Civil Society and Postwar Pacific Basin Reconciliation”.
I am humbled as it is the first time to launch a book … which makes me feel a little old!
But I am also humbled because Yasuko puts me to shame for her productivity; since retiring in 2015, she has also produced two other books. This evidence of “life after retirement” makes me feel young again!
I am further humbled because this book makes me realize how much I still need to learn about history and society in Japan (and indeed in Australia – the book’s major comparative reference point, along with Korea and China / Taiwan). Although I research and teach Japanese law “in context”, I tend to delve more into the law than the context. Yet both are deeply intertwined, and law in fact crops up in several chapters throughout this book.

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Asia’s Changing International Investment Regime: Sustainability, Regionalization and Arbitration – Book Review (Part III)

[Parts I and II of this book are reviewed in earlier postings.]
Asia’s Changing International Investment Regime: Sustainability, Regionalization and Arbitration, Julien Chaisse, Tomoko Ishikawa and Sufian Jusoh (eds),
Springer, 2017, xii + 260pp, ISBN 978-981-10-588, 120 Euros
Reviewed by: Luke Nottage and Ana Ubilava

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Asia’s Changing International Investment Regime: Sustainability, Regionalization and Arbitration – Book Review (Part II)

[Part I and Part III of this book are reviewed in earlier and subsequent postings]
Asia’s Changing International Investment Regime: Sustainability, Regionalization and Arbitration, Julien Chaisse, Tomoko Ishikawa and Sufian Jusoh (eds),
Springer, 2017, xii + 260pp, ISBN 978-981-10-588, 120 Euros
Reviewed by: Luke Nottage and Ana Ubilava

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Asia’s Changing International Investment Regime: Sustainability, Regionalization and Arbitration – Book Review (Part I)

Asia’s Changing International Investment Regime: Sustainability, Regionalization and Arbitration, Julien Chaisse, Tomoko Ishikawa and Sufian Jusoh (eds),
Springer, 2017, xii + 260pp, ISBN 978-981-10-588, 120 Euros
Reviewed by: Luke Nottage and Ana Ubilava (University of Sydney Law School PhD candidate)

This 14-chapter book published in late 2017 provides a succinct and quite comprehensive overview, as well as some detailed analysis, of key developments and themes in the rapidly evolving field of Asia-Pacific international investment treaties. It is particularly useful for readers in the antipodes, given for example Australia’s emphasis on concluding bilateral investment treaties (BITs) and especially more recently Free Trade Agreements (FTAs) with investment chapters, with counterparties in the Asia-Pacific region. Although the book’s title refers to “Asia”, several chapters refer to foreign direct investment (FDI) and treaties extending around the Pacific Rim, as well as some developments in Central Asia (a very different sub-region to South or especially East Asia).
The editors’ short Introduction, comprising helpful chapter summaries, explains that the book derived from the recent “rapid evolution of the international investment regime in the Asia-Pacific region”. It aims “to help predict the future regulatory framework in the region, and how the regional trends affect the development of global rules for foreign investment” (p1). Part I sets the scene by outlining “regional trends in an evolving global landscape”, including a growing concern about rebalancing FDI and treaties to promote sustainable patterns. Part II focuses on the “regionalization of investment law and policy ”, especially key intra-regional treaties concluded recently or under negotiation. Part III ends by asking whether we will see a trend “towards a greater practice of investment arbitration in the Asia-Pacific?”. The backdrop is that treaties and FDI flows are triggering somewhat belated, but nonetheless sometimes controversial, increases in both inbound and outbound investor-state dispute settlement (ISDS) claims involving Asian states or investors.

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

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

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