A symposium last year discussed “Fukushima Five Years On – Legal Fallout in Japan”, focusing on diverse lessons for the EU, as reported by Ruth Effinowicz in issue 42 of the Journal of Japanese Law. In the same issue, Zina Teoh also analyses “Food Safety in the Aftermath of Fukushima: Who can Consumers Trust?”.
A more recent question arises from an announcement from Tokyo Electric Power Company (TEPCO, operator of the nuclear power plant that suffered the devastating meltdown in after the 2011 tsunami) that it was seeking to terminate its contract with a Canadian long-term supplier of uranium. TEPCO argues that this is justified by the tighter regulatory regime subsequently introduced by the Japanese government, still limiting reactivation of most nuclear plants in Japan. Below is further background, and my quoted response to Bloomberg. I had also mentioned that their chances of legally terminating will depend on:
(i) pricing, termination, force majeure and hardship clauses likely included in the specific contract;
(ii) as interpreted based on the applicable background contract law (hence depending on any express governing law clause), which may in turn also allow recourse to broader background principles such as the doctrines of non-imputable impossibility or “changed circumstances” under Japanese contract law (compared to stricter doctrines of frustration under Anglo-Commonwealth law, as explained in my 2008 article);
(iii) in light also of the dispute resolution forum (with arbitration also likely to be expressly agreed, limiting scope for court review of the arbitrators’ award if a pro-arbitration seat has been chosen).
By way of further background, take a look also at the broader article (prompted by potential disputes over long-term LNG supply contracts due primarily to more fracking in the US ) written by CAPLUS associate Paul Davis, published in issue 38 (2014) of the Journal of Japanese Law.
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.
“International Investment Treaties and Arbitration Across Asia” – Julien Chaisse & Luke Nottage (eds)
[Updated: 25 July 2017]
The future of investment treaties, especially as part of “mega-regional” free trade agreements like the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP), has become very uncertain given the isolationist volte-face of the Trump Administration. This project explores the historical and likely future trajectory of investment treaties, including the sometimes politically controversial Investor-State Dispute Settlement (ISDS) procedure, especially in the rapidly growing and diverse Asia-Pacific region. The book focuses on the extent to which Asia-Pacific economies (individually and/or through sub-regional groupings like ASEAN, the Association of Southeast Asian Nations) have been or are more likely to become “rule makers” rather than “rule takers” in international investment law, and in what sense.
The following book proposal, accepted in July 2017 by Brill for publication in its Nijhoff International Investment Law Series, is based mainly on papers presented at conferences comparing contract- and treaty-based arbitration of investment disputes in ASEAN member states (held in Bangkok in July 2016) and across the wider Asian region (held at USydney in February 2017, with a summary by Ana Ubilava available via Kluwer Arbitration Blog) and reproduced (without hyperlinks) on this Blog.
International Investment Arbitration Across Asia: A Symposium
By: Ana Ubilava (PhD in Law student, University of Sydney)
[This is a non-hyperlinked version of the posting at http://kluwerarbitrationblog.com/2017/03/01/international-investment-arbitration-across-asia-symposium/]
On 16 February 2017, the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS) and the Sydney Centre for International Law (SCIL) co-hosted a symposium on the theme: “International Investment Arbitration Across Asia”. The symposium, sponsored also by the Sydney Southeast Asia Centre and Herbert Smith Freehills, brought together leading experts of international investment law from Southeast Asia, North Asia, India and Oceania. The symposium re-examined the historical development of international investment treaties in the Asian region, focusing on whether and how the countries may be shifting from rule takers to rule makers. A focus was on the ASEAN(+) treaties, including the (ASEAN+6) Regional Comprehensive Economic Partnership (RCEP) at an advanced stage of negotiations, and the Trans-Pacific Partnership (TPP) Agreement, which was discussed more broadly as an urgent topic in the wake of the change of direction by the US under President Donald Trump’s administration. Participants at the symposium also elaborated on the experiences of Asian countries with ISDS mechanisms, and the attitude towards ISDS before and after first major investor-state arbitration (ISA) cases in the region. The many speakers and discussants for the event further explored possible future trajectories of international investment treaty policymaking of Asia-Pacific countries, especially China, Japan, Korea, India, Australia and New Zealand.
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Yasuko Claremont et al, Citizen Power: Postwar Reconciliation
Dr Yasuko Claremont recently retired from the University of Sydney’s Japanese Studies Department, but is still actively publishing several works from a major conference and other events held in 2015 to mark the 70th anniversary of the end of the Asia-Pacific War, for a 5-year project on grassroots post-War reconciliation initiatives. (See also her recent translation of a well-known book about the 321 junior high school students killed by the 1945 atomic bombing of Hiroshima.) One event was a photographic exhibition displayed at the University of Sydney library, and Dr Claremont and photograph contributors are now bringing together photographs and commentaries together into a bilingual book entitled “Citizen Power: Postwar Reconciliation”, published by the Oriental Society of Australia, and distributed by Sydney University Press. (Two other volumes will be published by Routledge, and are also very timely given the ongoing sensitivities over the current Japanese government’s new security legislation.) Below are endorsements for the book by Profs Hugh Clarke, Tessa Morris-Suzuki and myself, followed by the Table of Contents.
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“Team Australia” wins the Intercollegiate Negotiation and Arbitration Competition in Tokyo, for the third time!
Congratulations to Stephen Ke (final-year Sydney Law School student, and former intern at the Centre for Asian and Pacific Law), Kieran Pender, Camilla Pondel and Dan Trevanion (ANU law students), who recently came out ahead of excellent teams from the National University of Singapore, followed by Osaka, Sophia, and Kyoto / Hitotsubashi universities. They had already competed very strongly in the INC moot as part of a larger Team Australia, including students competing also in the parallel Japanese-language division. Practice makes perfect! This year’s students won the Squire Patton Boggs Best English Negotiation Team award. Team Australia also was just short of the highest mark awarded in the English-language division for the Arbitration round, where students apply the UNIDROIT Principles of International Commercial Contracts.
Book Review – Celeste Arrington “Accidental Activists: Victim Movements and Government Accountability in Japan and South Korea” (Cornell University Press, 2016)
This extensively researched and succinctly written book effectively compares the processes and outcomes of several major movements for victims’ redress from governments in Japan and Korea. The focus is on campaigns that developed especially from the 1990s, an era of perceived “judicialization of politics, enabled by democratization in Korea in 1987 and more competitive electoral politics in Japan since 1993” (p. 203), when victims sought redress for poor decisions regarding Hansen’s disease (leprosy, as discussed in ch. 3), blood tainted with Hepatitis C (ch. 4) and abductions by North Korean authorities (ch. 5).
Arrington examines not just the respective victims’ contestations with the state, but also the nature and timing of their interactions with key mediating institutions (ch. 2): the legal profession (to pursue litigation), the media (providing publicity for their causes), and activist groups (for lobbying). In particular, she emphases how too much early engagement with politicians – even “elite allies” – aimed at achieving legislative or bureaucratic intervention, as occurs more in Korea’s more open-textured democratic process, may lead perversely to poorer redress outcomes as the issue becomes more polarised politically.
Adding a “General Safety Provision” to consumer law in Australia (and Japan)?
Japan enacted in 2006 a more expansive version of mandatory accident reporting compared to the Australian Consumer Law regime implemented from 2011, and currently under review. For example, Japan’s system extends to certain specified risks of harm (currently: carbon monoxide emissions or fires) and allows the regulators to make publically available the incident reports received from suppliers.
However, neither country presently has a General Safety Provision (GSP) requiring all consumer goods placed on the market to be reasonably safe. Given persistent problems with product safety failures in both countries, especially in Australia in recent years, perhaps the time has come. The possible enactment of a GSP has been on the agenda in the first five-yearly “ACL Review”, with last month’s Interim Report picking up several arguments related to product safety regulation made in my initial Submission for the Issues Paper earlier this year from Consumer Affairs Australia and New Zealand. Below is an extract from my second Submission (dated 22 November) also available online.
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Guest Blog – “The implications of Trump’s denunciation of the TPP”
[Below is a reaction to this news from the US on 22 November, from ARC discovery project co-researcher and Prof Leon Trakman, reproduced with permission from the forthcoming Newsletter of the International Law Association’s Australian branch. The Newsletter will also include my related but broader AFIA Blog posting with JNU A/Prof Jaivir Singh, “Does ISDS Promote FDI? Asia-Pacific Insights from and for Australia and India”.]
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Are US Investors Exceptionally Litigious with ISDS Claims?
[A version of this posting appears on Kluwer Arbitration Blog on 14 November 2016.]
Critics of the Trans-Pacific Partnership (TPP) free trade agreement, and investor-state dispute settlement (ISDS) protections more generally, have often argued that a particular concern is that the US is not only a large source of FDI, but that it is ‘the nation whose corporations use ISDS the most’ (referring to ANU’s Professor Thomas Faunce). A recent paper by ANU’s Dr Kyla Tienhaara for the ‘GetUp’ campaign in Australia, in the context of ongoing parliamentary inquiries into ratifying the TPP, contends that Australia is at risk because US investors have brought multiple claims against Canada. (By contrast, Charles-Emmanuel Cote points out that ‘damages effectively awarded or agreed to in settlement so far [amount to] US$147.5 million, or a mere 0.05 percent of all US investment’ into Canada.) More generally, Tienhaara argues :
The biggest users of ISDS are US multinational corporations. This means that entering into a trade deal with the US that includes ISDS provisions – such as the TPP – places a country at high risk of ISDS suits.
The inference is that Americans are particularly ‘litigious’ in the field of investment treaty claims – perhaps like they are purported to be in civil litigation in their home courts. In fact, empirical research into comparative civil dispute resolution patterns had long pointed out that a representative state within the US (in terms of urban/rural population mix, such as Arizona) has fewer filings per capita than countries such as Israel and Germany [Nottage & Wollschlaeger ‘What Do Courts Do?’ [1996] NZLJ 369].
Table A and Figure A-1 in the attached version of this posting confirm that investors from the US had indeed lodged the most ISDS claims by end-2015 (138). Yet, on a per capita basis (per 100,000 people in the home state), US investors are historically less litigious compared to investors from eleven other countries whose investors have filed considerable numbers of ISDS claims. Those states are all in the EU (including Belgium and Luxembourg, which generally conclude investment treaties collectively and whose investors have filed the most claims per capita), except for Switzerland (whose investors become the fourth most litigious) and Canada (the fifth most litigious home state). As further indicated in Table A and Figure A-2, if we group together most of these EU states their investors’ per capita ISDS claim rate is also higher than that for US investors.
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Guest Blog – ““Democracy, Pacificism & Constitutional Change in Japan: Amending Art. 9?”
[Report of a Conference hosted at the University of New South Wales, 12 August 2016:
Written by Profs Rosalind Dixon, University of New South Wales, and Juliano Zaiden Benvindo, University of Brasília
Reproduced with permission from: http://www.iconnectblog.com/2016/08/conference-report-democracy-pacificism-constitutional-change-in-japan-amending-art-9-university-of-new-south-wales/]
On August 12, 2016, the Gilbert + Tobin Centre of Public Law at the University of New South Wales (UNSW) in Sydney, Australia, and the Australian Network for Japanese Law (ANJel) hosted the symposium “Democracy, Pacifism & Constitutional Change in Japan: Amending Art. 9?”. The symposium was convened by Rosalind Dixon and Luke Nottage with the purpose of providing a rich discussion of the new developments on Japanese constitutionalism, especially focusing on its pacifist clause (Art. 9). Scholars from distinct parts of the world sought to stress how informal and formal change intertwine with each other in the current context of the Japanese government’s political actions aimed at a revision of the scope and limits of that clause.