Luke Nottage – Page 27 – Japanese Law and the Asia-Pacific

Australia and Japan as America’s Deputies – in Multilateralism?

Dr Malcolm Cook and Mr Andrew Shearer at the Lowy Institute in Sydney published last month a short analysis entitled Going Global: A New Australia-Japan Agenda for Multilateral Cooperation:
‘To help both governments navigate [a] more complicated and uncertain international environment, the paper offers a agenda for enhanced Australia-Japan multilateral cooperation organised around:
– support for American global leadership, and
– reforming post-war multilateralism.
Three areas of international policy are particularly well suited to closer Australia-Japan cooperation in pursuit of these goals: climate change and energy security; nuclear non-proliferation; and official development assistance.’
I have some doubts about these two foundational principles, especially over the mid- to long-term, given America’s own longstanding ambivalence about multilateralism, and its relative decline particularly since the GFC. In the short term, however, it seems worthwhile to think more deeply and creatively about three of their seven specific recommendations:
‘- Leverage APEC and the East Asia Summit more to act as caucuses in multilateral bodies like the WTO …
– Better coordinate Australian and Japanese aid policies and programs …
– More ambitiously, develop and pursue an Australia-Japan agenda for reform of the multilateral system.’ (p2)

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Responsible Consumer Lending Rules for Australia Too: Submission on the National Consumer Credit Protection Bill

1. I wrote to Australia’s Treasurer recently agreeing we need re-regulation of Australia’s consumer credit markets, along the lines proposed in ‘The National Consumer Credit Reform Package’.
2. I considered some improvements that could be made regarding an External Dispute Resolution scheme. But I begin by supporting a key improvement proposed in the National Consumer Credit Protection Bill: imposing responsible lending rules (focused on ‘suitability’ and repayment capacity), drawing partly on my studies of Japanese law.

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Australia’s Less Lethargic Law Reform? International Arbitration in the Asia-Pacific

[This blog posting follows on from my East Asia Forum posting criticising “Australia’s Lethargic Law Reform” in consumer law recently. I am somewhat more optimistic about initiatives in arbitration law reform, but Australia shares some similar problems with Japan. Japan also took its time to enact new legislation, in 2003, but hasn’t seen significant increases in disputes referred to arbitration.]
On 21 November 2008, the Attorney-General’s Department (AGD) announced a Review of Australia’s International Arbitration Act 1974 (IAA). The aim was to consider whether the Act should be amended to:
* ensure it provides a comprehensive and clear framework governing international arbitration in Australia
* improve the effectiveness and efficiency of the arbitral process while respecting the fundamental consensual basis of arbitration, and
* consider whether to adopt ‘best-practice’ developments in national arbitral law from overseas.
The AGD’s Discussion Paper (DP) expressed the hope that a revised IAA would make Australia a more attractive venue for conducting international commercial arbitration (ICA), especially within the Asia-Pacific region. Unfortunately, Australia has missed that boat, with China, Hong Kong and Singapore the clear leaders now in this part of the world.
For Australia to have any chance at all, it needs a much more ambitious reform than envisaged in the AGD’s DP. Anyway, Australia needs to appreciate the more diffuse and long-term benefits of this type of reform.

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Japanese Law in English through the Internet: Take Two

[English version for: Baum, Nottage et al’s Bibliography chapter in Harald Baum (ed) Handbuch des japanischen Handels- und Wirtschaftsrechts [Handbook of Japanese Commercial and Economic Law] (Carl Heymann, Cologne, forthcoming 2009)]
When Harald Baum and I translated and expanded the original Bibliography chapter in the first edition of this book, and published it as Japanese Business Law in Western Languages: An Annotated Selective Bibliography (Fred B Rothman, 1998), we added a new section introducing the online resources that were already increasingly available for free over the Internet. We also created a webpage – Japanese Law Links, now archived at Sydney Law School – that updated and expanded our introductions to resources made public by various types of organisations.
After another decade, following further exponential growth in the Internet as well as steady increases in interest and writing about Japanese law world-wide, it is now both easier and harder to offer a guide to such online resources. It is harder to be as comprehensive in reviewing them, because of their sheer volume, and there is the added difficulty of selecting the more authoritative and useful resources. However, our task is also easier in that there are now several well-established and reputable websites. They often contain (sometimes annotated) links to other resources, and often original material, in Western languages – especially in English, which is therefore our main focus in this chapter. It is also easier because of higher-quality Internet search engines, such as Google, although no search engine can ever be perfect – as we show next.

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Birth (and Transfiguration?) of an Anti-Whaling Discourse

[Forthcoming (May 2009) in the Asia Pacific Journal of Environmental Law]
Every Australian summer, relations with Japan heat up over whaling. This New Year of the Ox is no exception. On 8 January 2009, a Japanese official reportedly called on Australia to deny port access to the Sea Shepherd Conservation Society’s protest ship, which has begun impeding the lethal research underway again by the Japanese whaling fleet in the Southern Ocean. But there is uncertainty over whether the ship’s activities amount to the alleged ‘sabotage’, and about the implications under national and international law. The editor of The Australian has also argued that Sea Shepherd is ‘On the wrong course’, and that Captain ‘Paul Watson’s zealotry at sea will not stop Japanese whaling’.
On the other hand, as a practical matter, it is hard for Australia to refuse entry to the ship. Sea Shepherd renamed it the Steve Irwin, after the nation’s recently-deceased iconic figure for conservationism – still (in)famous for his own larrikin image. Such symbolism, and the public photo of Paul Watson ‘standing resolute beneath a skull-and-crossbones flag’ highlighted by the editorialist, illustrates the impact of images and wider discourse in framing the contested issue of whaling. And that is the main thesis of USydney’s Dr Charlotte Epstein, in her new book on The Power of Words in International Relations: Birth of an Anti-Whaling Discourse (MIT Press, 2008, Cambridge, Mass. /
London, England (distributed in Australia by Footprint Books), ISBN 978-0-262-55069-7, xii + 333 pages). Her book should be required reading for government officials and others interested in this issue in Australia, Japan and beyond, because the work also helps explain the irony of each country adopting mutually contradictory positions when it comes to whaling. Economic and political interests do partly explain such internally inconsistent positions, but they also seem more likely to prevail when such material interests interact with a broader ‘discourse’, which can persist in different forms in different countries at different times.

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Alcohol deregulation in Japan: Vending machines and FTA-compliant taxes

[Originally posted, with full hyperlinks and various Comments, at http://eastasiaforum.org/author/lukenottage/]
Japan appeared finally to have recovered from its own financial crisis a decade ago, albeit at the cost of much accumulated government debt. But now the country has been hit by the collapse of its export markets and the rapid rise of the yen, following recession in the US and increasingly world-wide. Professor Iwao Nakatani, former Chairman of Sony, urges a radical shift in economic policy in Japan and elsewhere – from policy ‘based on neo-conservative economics and the philosophy of small government to one based on Keynesianism and welfare state ideology’.
Some may remain sceptical that Japan ever really embraced the former philosophy, and its ascendancy was certainly never as pronounced as in the US, the UK or then Australia – where market liberalisation tended to be linked closely to race politics (Mark Davis, The Land of Plenty, MUP 2008). But deregulation of alcohol distribution is one of Japan’s many transformations over the last decade. It is also the flipside of ever-stricter rules on drink driving, although they also reflect a broader trend towards criminalisation of socio-economic deviance (evident eg in product safety or consumer credit re-regulation).
On the other hand, deregulation is most notable in terms of where you can buy alcohol to celebrate this New Year of the Ox, namely vending machines and those ubiquitous convenience stores. It is less notable in what you pay especially for certain beer-substitutes, which mainly reflects differential tax rates. In fact, such rates may well violate WTO law. Yet there is probably not enough financial reward for potential beer exporters to encourage their home governments to sue Japan. So an implication may be for FTA negotiators (even those now from Australia) to seek some offsetting advantage in their overall bilateral deal with Japan. Yet that would further undermine the entire multilateral WTO framework.

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Traffic rules and alcohol regulation in Japan

[Originally posted, with full hyperlinks, at http://eastasiaforum.org/author/lukenottage/]
If you are one of those many more short-term visitors to Japan nowadays, and even if you are an old hand, watch out for signs setting out various rules that may be unexpected or new. Like these two signs:
http://eastasiaforum.org/wp-content/uploads/2008/11/download.jpg?w=225
The bigger one to the bottom left is one of many signs we see increasingly around Japan in English (and sometimes now Chinese or Korean). The text is small but reads: “In the Beautification Enforcement Areas you will be fined up to 30,000 yen for littering regardless of your nationality or status”. The kind of prohibition and penalty you might expect in Singapore. Not in Japan, where local communities have long taken pride in being tidy – although that has not excluded individuals or dodgy firms from dumping their rubbish in distant communities! But what is meant by the round blue sign up on the right?

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Economics, Politics, Public Policy and Law in Japan and the Asia Pacific in 2008

All my blogs over July-October 2008, posted originally with full hyperlinks at http://eastasiaforum.org/author/lukenottage/], have been edited and updated as:
Nottage, Luke R., ‘Economics, Politics, Public Policy and Law in Japan, Australasia and the Pacific: Corporate Governance, Financial Crisis, and Consumer Product Safety in 2008’ (November 3, 2008) Sydney Law School Research Paper No. 08/134, Available at SSRN: http://ssrn.com/abstract=1295064 (and forthcoming, early 2009, in Ritsumeikan Law Review)
Some of the individual topics focused more directly on Japanese Law, asterisked below, are also available on this USydney blog:
* 1. Taking the Australia-Japan FTA negotiations to new levels
* 2. Whaling: What can law add to science, economics, ethics and politics?
3. Australia also should ‘Rail at Australian’s Tabloid Trash’ about Japan
* 4. Consumer over-indebtedness in Japan, Australia and the US
* 5. Dodgy foods and Chinese dumplings in Japan
* 6. FDI and corporate governance in Japan
* 7. Investor-state arbitration for Indonesia, Australia and Japan
8. Rivals: China, India and Japan – economic, not Olympic?
* 9. The politics of Japan’s new Takeovers Guidelines
* 10. Tables turned in Japanese and US financial markets
* 11. Lessons from Japan for the US financial crisis
* 12. The financial crisis – and loansharks in Japan and NZ
* 13. Consequences of melamine-laced milk for China, NZ, Japan and beyond
14. Political dynasties in Japan, the US, Australia … but not NZ?
* 15. A New Consumer Agency for Japan?

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A New Consumer Agency for Japan? Consumer Redress, Contracts and Product Safety

[Originally posted, with full hyperlinks, at http://eastasiaforum.org/author/lukenottage/]
The Kyoto Shimbun reported last Wednesday the first de facto victory by a consumer representative group in injunction proceedings regarding unfair contract terms. The same page mentioned the Education Ministry’s response to the recent death of a sixth-year elementary student, who choked on some bread provided in school lunches – basically, ‘chew well’! By contrast, Japan’s largest manufacturer of konnyaku (konjac) jelly snacks, MannanLife, halted all production after a one-year-old boy choked to death on 29 July.
But that situation is rather different. It also more directly highlights when and how a new Consumer Agency (shohisha-cho) might emerge in Japan. Ex-PM Fukuda’s Cabinet approved a Bill, but it then resigned without putting it through. It is unclear when and how PM Aso will submit a new Bill, and what line the opposition DPJ will now take, especially given the uncertainty about a possible early general election.

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Consequences of melamine-laced milk for China, NZ, Japan and beyond

[Originally posted, with full hyperlinks, at http://eastasiaforum.org/author/lukenottage/]
For weeks I have been tracking this latest evolving food safety scandal, but reports and reactions vary markedly across the region. Media coverage is likely to remain disparate. But the saga should provide lessons for developing bilateral and regional infrastructure to “trade up” to a more harmonized regime, better securing consumer product safety in our FTA era.
At a news conference this Wednesday the Chinese Health Ministry announced melamine limits for dairy products, but declined to provide updated statistics on those so far harmed by tainted products. In September the figures given were 53000 children sickened, 13000 hospitalised, and at least three dead from kidney stones due to drinking products made from milk that suppliers or intermediaries had bolstered with this chemical to hide the fact it had been watered down. Yet the government demands notification if Chinese lawyers decide to represent victims.

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