https://brill.com/abstract/title/36129Guest blog written by: Nobumichi Teramura (UNSW PhD in Law candidate)
Ongoing dramatic geopolitical transitions in the world have inevitably impacted on the international business environment of the Asia-Pacific region. This requires Australia and other countries in the region to re-examine their legal infrastructure for transnational business disputes. Convergence and divergence of legal systems of competing and sometimes cooperating states in the Asia-Pacific require the Australian government and other stakeholders to address unprecedented legal complexities in private to private, private to public, and public to public commercial dispute resolution.
On 19 April 2018, the Sydney Centre for International Law (SCIL) at the University of Sydney Law School organised a post-ICCA symposium: “International Commercial Dispute Resolution for the 21st Century: Australian Perspectives”. The symposium, the second recently with the University of Western Australia (UWA) Law School and also supported by Transnational Dispute Management (TDM), brought together leading experts in international arbitration, investment law and international business law from all over the world. They examined broad and perhaps increasingly overlapping fields such as investor-state dispute settlement (ISDS) in a changing legal and political environment, cross-border litigation in the Asian region, other international commercial dispute resolution mechanisms (arbitration and mediation), and inter-state dispute settlement.
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.
The TPP is Back: Submission to Australian Parliamentary Inquiries
[Update of 22 August 2018: the JSCOT Report No 181 recommending CPTPP ratification is now available. It refers to this Submission, my oral evidence given at hearings in Sydney (transcribed here), and further statistical information jointly with PhD student Ana Ubilava (incorporated also into an article for the Sept 2018 issue of the Intl Arb L Rev).]
The Trans-Pacific Partnership was signed in February 2016 by Australia, Japan, the US and 9 other Asia-Pacific countries, but the new Trump Administration withdrew signature in January 2017, so the remaining 11 re-signed a variant (TPP11 or CPTPP) in March 2018. Inquiries into ratification are now being conducted by the the Australian Parliament’s Joint Standing Committee on Treaties (JSCOT, where the Government always had a majority of members, so will almost certainly recommend ratification) and the Foreign Affairs, Defence and Trade Committee in the Senate (where the Government lacks a majority overall). The Inquiry reports do not bind the Government anyway, so the big question remains: will the opposition Labour Party subsequently vote with the Government to enact tariff reductions consistently with this treaty, to allow the Government then to ratify the treaty so it can come into force?
A particular stumbling block will remain the TPP11’s investor-state dispute settlement (ISDS) provisions, given as an option additional to inter-state arbitration for investors directly to enforce substantive commitments offered by host states to protect foreign investment, given that the Labour Party’s policy remains opposed to including ISDS in treaties. Despite that policy position, going back to the the Gillard Government Trade Policy Statement in 2011 (in force until Labour lost power in 2013), the Labour Opposition nonetheless voted pragmatically with the Government to allow FTAs containing ISDS to come into force with Korea and China.
Below is my Submission to both Parliamentary Committees, focusing on the investment chapter and supporting ratification of the TPP11. It is based in part on my latest paper with A/Prof Amokura Kawharu focusing on recent ISDS cases and investment treaties (re)negotiated by Australia, and New Zealand where a new Labour Government has also renounced ISDS for future treaties, but pragmatically agreed to rather minimal changes to ISDS and the investment chapter overall in TPP11. The footnoted original versions of the Submission, available by the Committee websites, refer to some of my other recent writings concluding a 4-year ARC cross-institutional research project on international investment dispute management. One is a 21-chapter book on ‘International Investment Treaties and Arbitration Across Asia‘, launched by former Chief Justice Robert French on Thursday 13 April as part of a SCIL-supported symposium on international commercial dispute resolution, including Australian perspectives.
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Guest Blog – Public Participation in Legal Decision-Making
Prof Valerie Hans of Cornell Law School recently convened a fascinating online Forum comparing issues involving public participation in legal decision-making, especially but not limited to (quasi-)jury systems that have been (re)introduced into Asia-Pacific countries like Japan and Korea.
With kind permission from Prof Annelise Riles, well-known for her studies in legal anthropology and comparative legal theory with respect to Japan and Asia, we reproduced below Valerie’s opening questions for the (usually closed) Forum convened by the Meridien180 initiative. That is followed by my brief Japan-focused posting in response to some of those questions as well as some intervening postings and topics raised by other Meridien180 members from around the Asia-Pacific region.
As explained on the website for Meridien180, it is:
a multilingual forum for transformative leadership. Founded in 2012, Meridian 180’s strength comes from its membership—800+ thought leaders from academia, business, and the public sector from 29 different countries. With a center of gravity in the Pacific Rim, Meridian 180 builds the intellectual, social, and political infrastructure required to address the crises of today and tomorrow.
Meridian 180 is a partnership of Cornell University’s Mario Einaudi Center for International Studies and the Clarke Program in East Asian Law and Culture at Cornell Law School, Ewha Womans University in Seoul, Korea, the Institute for Social Science at the University of Tokyo and the University of New South Wales in Sydney, Australia. The director of Meridian 180 is Annelise Riles, the Jack G. Clarke ’52 Professor of Far East Legal Studies at Cornell Law School.
Hopefully a summary of the Forum discussions will made publically available. I certainly hope to draw on its many comparative insights when helping to set readings and marking essays by USydney students who are always intrigued by Japan’s quasi-jury system in the criminal justice class in the ANJeL-supported “Kyoto Seminar on Japanese Law“. That class was last taught in February 2018 by Profs Makoto Ibusuki and Dimitri Vanoverbeke.
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“Comparative Law in and for Japan”
This is the title of my chapter written late last year for the 2nd edition of Matthias Reimann and Reinhard Zimmermann (eds) The Oxford Handbook of Comparative Law (OUP, 2018). It substitutes for, but respectfully builds on several aspects of, the Japan-focused chapter in the Oxford Handook’s first edition by the late Prof Zentaro Kitagawa entitled “Development of Comparative Law in East Asia”.
Below I reproduce introductory Part I and the Table of Contents for my chapter manuscript, a version of which will be presented with ENS-Lyon Prof Beatrice Jazulot as an ANJeL Visitor in early July 2018, at the biannual Asian Studies Association of Australia conference hosted by USydney. Then I reproduce useful references on comparative law generally in Japan, from pp177-81 of Baum/Nottage/Rheuben/Thier, Japanese Business Law in Western Languages: An Annotated Selective Bibliography (Hein, 2nd ed 2013).
Wa and the Japan International Mediation Centre – Kyoto
Written by: (Kobe University Law Faculty Prof) James Claxton & Luke Nottage
[This is an non-hyperlinked / unfootnoted version of a posting published by the Kluwer Mediation Blog]
More than 1,400 years ago, Japan codified Confucian and Buddhist approaches to governing in Prince Shotoku’s Constitution, whose first article provides that “[h]armony should be valued, and quarrels should be avoided.” The underlying principle, wa (harmony), was promoted and reflected in the fabric of Japanese society and may have contributed to a persistent preference for non-adversarial means of settling disagreements. Mediation, in particular, has a storied history in Japan and continues to play an important role in the resolution of disputes. But most mediation services have been provided by the government or courts, despite a 2004 statute encouraging certification and expansion of privately-supplied Alternative Dispute Resolution (ADR) services, as part of a broader suite of justice system reforms to make Japan’s legal system more tangible in everyday life.
It is in the context of that contemporary challenge as well as the longer-standing spirit of wa that the Japan International Mediation Centre-Kyoto (JIMC-Kyoto) will soon begin operations. The JIMC-Kyoto is part of a broader initiative to breath fresh life into international disputes services in Japan. The official start of business awaits final governmental approval, which should come early this year.
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“Japan is Back” – for International Dispute Resolution Services?
Written by: Luke Nottage & (Kobe University Law Faculty Prof) James Claxton
[This is an non-hyperlinked / unfootnoted version of a posting published by the Kluwer Arbitration Blog on 26 January 2018.]
Prime Minister Shinzo Abe himself is certainly back – having led the Liberal Democratic Party (LDP) to a fifth consecutive election in October 2017. If Abe remains in power for another three years, he will become the longest serving Japanese prime minister since World War II. Although the electorate probably responded mostly to his government’s hawkish security policy, given the recent sabre-rattling from North Korea, voters also seem to be giving the government the benefit of the doubt on his “Abenomics” economic policy. Introduced after the LDP regained power in 2012, Abenomics involves shooting “three arrows” – for monetary, fiscal and structural reform – to try to jumpstart the Japanese economy out of its lethargic performance since the “bubble economy” burst in 1991.
Against this political backdrop, and Abe’s ambitious announcement in 2013 that “Japan is back” on the world stage, some LDP policy-makers recently have proposed enhancing Japan as regional hub for international dispute resolution services. On 18 May 2017 the Nikkei Asian Review announced: “Japan to Open Center for International Business Arbitration”, which:
… could be set up as early as this year in Tokyo. Lawyer groups, corporations and other private-sector actors will take the lead in its operation. The Japan Commercial Arbitration Association [JCAA] could use the facility as its base while mediating international corporate disputes. Similar associations from other countries may use it as well.
Japan’s Foreign Ministry, Justice Ministry and Ministry of Economy, Trade and Industry [METI] will have joint jurisdiction over the new center. They will provide institutional support, such as by crafting necessary legislation and providing staff training.
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NZ renounces ISDS: Deja vu?
we have written to leaders in both New Zealand and Australia recommending a shift towards introducing an EU-style two-tier investment court model in lieu of traditional ISDS, as a compromise way forward
The new Labour-led coalition government in New Zealand announced this month that it would resist investor-state dispute settlement (ISDS) provisions in future Free Trade Agreements or investment treaties.
This outcome and local political circumstances bear some remarkable parallels with the situation in Australia over 2011-2013, when the centre-left Gillard Labor coalition government adopted a similar stance until the new centre-right government resumed the policy including ISDS on a case-by-case assessment. Australia was then able to agree to major bilateral FTAs with China and Korea, as well as to the Trans-Pacific Partnership Agreement.
The [unfootnoted] posting below with Amokura Kawharu from UAuckland, a version of which will be published in the Kluwer Arbitration Blog, elaborates on these developments. We note how New Zealand nonetheless subsequently reached agreement in principle on a revised TPP, but will face challenges maintaining a wholly anti-ISDS stance in the ongoing (ASEAN+6) Regional Comprehensive Economic Partnership negotiations. As a compromise way forward, we have written letters to leaders in New Zealand and Australia suggesting the substitution of an EU-style investment court mechanism.
For more background and our main paper referred to below, please see:
Kawharu, Amokura and Nottage, Luke R., Models for Investment Treaties in the Asian Region: An Underview (February 21, 2017). Arizona Journal of International and Comparative Law, 2017 Forthcoming; Sydney Law School Research Paper No. 16/87. Available at SSRN: https://ssrn.com/abstract=2845088
Guest blog: Japan – The Next Arbitration Shangri-La?
Written by: Nobumichi Teramura (UNSW Law Faculty)
As reported by the Nikkei Asian Review on 18 May 2017, the Japanese government announced it planned to open a new centre for international commercial arbitration in Tokyo. The facility was reportedly to be established for the use of the Japan Commercial Arbitration Association (JCAA), the only permanent commercial arbitration institution in the country as well as other arbitration institutions from all over the world. The Ministry of Foreign Affairs, Ministry of Justice, and Ministry of Economy were working together for necessary legislative reforms and staffing issues.
Studying other institutions’ experiences is important to plan the forthcoming reform, but it is also important to reflect on the past Japanese arbitration reforms when considering the future of Japanese arbitration. A wise person learns from history. What reforms have been made in international commercial arbitration regimes in Japan until today? What can we learn from the past reforms? What implications do they have for the forthcoming arbitration reforms?
Th0se questions are addressed in the Japan chapter in a forthcoming book on “The Developing World of Arbitration: A Comparative Study of Arbitration Reform in the Asia Pacific”, co-edited for Hart by Hong Kong University Professors Anselmo Reyes (also a Judge of the Singapore International Commercial Court) and Gu Weixia. I was pleased to be invited to become the lead author of “Arbitration Reform in Japan: Reluctant Legislature and Institutional Challenges”, with my PhD thesis associate supervisor Professor Luke Nottage of Sydney Law School as co-author. My primary supervisor, Professor Leon Trakman of the University of New South Wales, contributed the chapter on arbitration reforms in Australia. Below is my outline of the forthcoming chapter on Japan.
The aim of establishing such a centre is to boost the number of international commercial arbitrations held in the country, which is now around 20 per year. New JCAA case filings have ranged from 14 to 27 annually between 2007 (15 cases filed) and 2016 (18). International Chamber of Commerce arbitration cases with the seat in Japan ranged from 2 to 5 annually between 2007 (4 filed) and 2015 (2). This number is quite small, compared with other countries or cities having those well-known arbitration institutions such as Hong Kong, Singapore, London, Paris and New York. (However, in Australia, ACICA only attracted a few new cases each year until 2009 and on average about 8 annually between 2010 and 2015, with ICC cases ranging between 1 and 8 each year from 2008 (2 cases filed with the seat in Australia) and 2016 (8 filed)). Japan’s Ministry of Justice launched a task force to investigate these popular institutions for the purpose of clarifying what reforms are necessary to attract more arbitration cases to Japan. Japanese arbitration is therefore venturing into a new era of reform.
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Guest Blog: Prof Yasuhei Taniguchi on “what characterises Japanese law and legal life”
With kind permission of one of my former teachers at Kyoto University (in international commercial arbitration) and one of Japan’s most eminent jurists, Professor Yasuhei Taniguchi, I reproduce below his succinct and insightful reflections on the historical evolution of Japanese law and society.
This is his Keynote speech delivered on 19 September 2017 at the opening of the LAWASIA conference held at the Hotel New Otani, Tokyo, attended by the Crown Prince and Princess of Japan.
Dr Yasuhei Taniguchi is Professor Emeritus of Kyoto University Law Faculty; Judge of Singapore International Commercial Court; Of Counsel, Matsuo & Kosugi, Tokyo. He was previously a member of the WTO Appellate Body and then a visiting professor at the University of Sydney Law School
Away on Long-Service Leave for August-December 2017
After 16 years at Sydney Law School, including 168 substantive postings to this Blog since 2008 (listed below), I am taking a real break!
For queries regarding various research projects and publications-in-progress, please contact my research assistant Kirsty Gan: kgan9837@uni.sydney.edu.au
For matters related to the Australian Network for Japanese Law, please contact the ANJeL Executive Coordinator: ana.ubilava@sydney.edu.au (or: anjelinfo@gmail.com)
For updates on next February’s Kyoto / Tokyo Seminars in Japanese Law, please contact: law.offshore@sydney.edu.au
In the unlikely event they cannot deal with your inquiry, they have my private contact details.
Otherwise, you may try contacting me via LinkedIn.com or posting me material to: Sydney Law School, University of Sydney, NSW 2006, Australia. Occasionally I will be clearing my (physical) mailbox there.
I do not plan to check or respond to emails to my USydney or other work-related accounts, except when I am “back on the job” (but overseas) around 4-12 and 16-21 November, and fully from early January 2018.
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