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.

Asia ADR Week 2021 session on roles of in-house counsel [& ‘errors of law in arbitration’]

[Updates: A. Also in August 2021, I chaired a presentation via Monash University on “Errors of Law in Arbitration – Revisited”, with a recording here. Dr Benjamin Hayward argued that a tribunal’s application of a substantive law different from that expressly chosen by the parties, or not applying the conflict of law provisions of the seat (and any chosen Rules) where such substantive law is not expressly chosen, could constitute an error of applicable procedure and thus a ground for challenging the consequent arbitral award.

B. My co-authored article on the new ACICA Rules (mentioned at 7 below), including comparative references to Japan and other Asian jurisdictions, is available in manuscript form: Nottage, Luke R. and Dreosti, Julia and Tang, Robert, The ACICA Arbitration Rules 2021: Advancing Australia’s Pro-Arbitration Culture (September 26, 2021). Journal of International Arbitration, 38:6, 2021 (Forthcoming), Available at SSRN: https://ssrn.com/abstract=3931086

C. My co-authored article empirically examining the “formalisation” of international arbitration, and the diminishing influence of non-lawyers (or even in-house counsel) across key nodes of influence, is available in manuscript here (and shortened for a forthcoming Elgar book co-edited by Shahla Ali, Giorgio Colombo et al on “Sustainable Diversity in International Arbitration”): Nottage, Luke R. and Teramura, Nobumichi and Tanna, James, Lawyers and Non-Lawyers in International Arbitration: Discovering Diminishing Diversity (September 20, 2021). Available at SSRN: https://ssrn.com/abstract=3926914]

As part of the “Asia ADR Week” of events for 2021, coordinated by the Asian International Arbitration Centre based in Kuala Lumpur, as session was scheduled for the first day of the main conference – Thursday 19 August 4-5pm AEST (2-3pm KL time) – on the topic of “Starting In-House: The Role of General Counsel of Multinational Corporations in ADR”. [A recording is available on request for my USydney students.] Agreed session contributors were myself as moderator and:

  1. Ms Debolina Partap (Wockhardt Limited, general counsel based in Mumbai)
  1. Ms Esther Chow (Kone Elavator (M) Sdn Bhd, general counsel based in KL)
  1. Mr Nick Longley (Holman Fenwick Willan, based in Melbourne; formerly in a law office in Hong Kong as well as in-house for four years with a Japanese civil engineering company and now significant engagement with Korean firms)
  1. Mr Cameron Ford (Squire Patton Boggs, based in Singapore, and formerly in-house for over a decade)
  2. Mr Raymond Goh (China Tourism Group Corp Ltd, Group general counsel – International, in Hong Kong / China).

The assigned description was: “The role of an in-house counsel in shifting the focal point on dispute resolution from the traditional standpoint of litigation to the innovative vigor of ADR has resulted in the majority of Fortune 1000 companies preferring to use ADR as a means of resolving both international and domestic disputes. This session focuses on the multi-faceted role of in-house counsel in spearheading ADR as a principal means of resolving disputes.” The focus therefore was on evolving in-house counsel perceptions around Asia regarding alternatives to litigation (arbitration, mediation, other Alternative Dispute Resolution) to resolve cross-border disputes. Part of the backdrop is resurgent delays and especially costs in international commercial arbitration despite its continued spread east from the traditional (European then US) venues.

The first part of the session asked some general questions focused on our panelists currently or having worked extensively as in-house counsel [Ms Chow, Ms Partap, Mr Goh, Mr Ford]:

1. How do or should in-house counsel teams nowadays decide generally whether to provide for and/or engage in arbitration, mediation, expert determination or other ADR rather than cross-border litigation?

2. Does or should the approach change if the disputes involve commercial and government parties?

The second part of the session posed some more specific questions:

3. The latest QMUL international arbitration survey (with more than usual Asia-Pacific respondents) confirms the continued popularity of multi-tiered DR clauses, which commit parties contractually to try eg mediation before arbitration (rather than having waiting for the dispute to arise, and then try to achieve agreement to try other ADR before proceeding to pre-agreed arbitration). Yet are such multi-tiered clauses equally negotiated and invoked among companies and legal advisors in the Asian region? See http://www.arbitration.qmul.ac.uk/research/2021-international-arbitration-survey/ [cf eg Japan, Korea (Mr Longley), Malaysia (Ms Chow)]

4. Especially in the region, are there difficulties in enforcing say the mediation step (as a jurisdictional requirement say before being able to proceed to arbitration), and issues in determining the law applicable to that question? Cf eg this US report / chapter for a book / project by Profs Gu and Reyes: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3601337, and recent case law in Hong Kong etc (https://pulse.kwm.com/hong-kong/multi-tiered-dispute-resolution-clauses-what-happens-if-you-dont-comply/) [Mr Longley]

5. What prospects are there for more establishment and use of dedicated centres for mediation, especially in the Asian region (eg already Singapore / SIMC, but also recently Japan / JIMC and Vietnam / VMC)? See eg https://www.jimc-kyoto.jp/. Would it be easier for in-house counsel to promote cross-border mediation if institutional, rather than ad hoc?

6. Why is the 2019 Singapore Mediation Convention, aimed at facilitating enforcement of settlement agreements along the lines of the NYC, attracting many signatures (but not eg from Japan or Australia) but few ratifications? See https://uncitral.un.org/en/texts/mediation/conventions/international_settlement_agreements/status. What have been experiences in enforcing settlement agreements cross-border in Asia even without this new Convention?

7. Is there declining interest and practice of Arb-Med across Asia (except perhaps in mainland China and to a lesser extent Japan), linked perhaps to more use of separate mediation as part of multi-tiered DR clauses, and/or a sense that Arb-Med is not “global practice” which arbitration institutions and practitioners feel increasingly required to follow? Cf ACICA (for which Mr Longley and I served on the Rules drafting committee) which decided not to proceed with an Arb-Med provision in its 2021 Rules, although modelled on legislative provisions for domestic arbitrations: http://arbitrationblog.kluwerarbitration.com/2021/05/01/is-arb-med-un-australian/ [Mr. Goh]

8. Are there already or likely to be changes towards more use of mediation (either separate, or in Arb-Med) due to the pandemic, or eg has the enforced move to remote hearings etc created enough time, cost and arbitrator availability benefits to maintain adequate attractiveness for international arbitration? Is the recent rise of Expert Determination in Australian domestic dispute resolution driven by arbitration costs and delays in arbitration and litigation, thus likely to carry over into cross-border dispute resolution and beyond the pandemic? [Mr Longley, compared with say Malaysia – Ms Chow, and experiences from Singapore – Mr Ford]

Australasian Consumer Law Roundtable: 1 December @ USydney

Sydney Law School, with support especially from its Ross Parsons Centre, is pleased to host this year’s Roundtable, in hybrid format on 1 December 2021, to discuss recent or emerging research and topics in consumer law and policy. In an informal interactive format, for the last fifteen years the Roundtables invite together experts in consumer law mainly from universities across Australia and New Zealand, but sometimes more widely including from Japan and other parts of Asia or even further afield, as well as some consumer regulators or peak NGO representatives. The event is open to other staff and HDR students from USydney, as the host, and any consumer law academics from Australian, NZ or Asian universities are also welcome to seek permission to attend by emailing luke.nottage@sydney.edu.au

Short presentations for discussion at this year’s Roundtable include the following [not necessarily in the order listed below]. Several involved recent or forthcoming publications that may be made available to the wider public already or after the event.

Samuel Becher (VUW)“Dark Contracts” (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3911528)Firms design non-transparent consumer contracts. This article documents the multiple non-transparent contractual mechanisms and practices that firms employ in their consumer contracts. Specifically, it delineates how firms use non-transparent tools in almost every possible contractual juncture: from the contract’s nature, scope, and language to contract performance, dispute resolution, change, and termination. The article first documents this non-transparency. Thereafter, it argues that the sum of these non-transparent components is greater than its parts. The aggregated impact of these non-transparency practices undermines fundamental contract law notions and leaves consumers disinformed and disempowered. While firms have a profit incentive to employ non-transparent contracts, bounded ethicality makes it even more unlikely that firms fully realize the harmful consequences of their contracts. Against this backdrop, the article dubs these highly non-transparent consumer contracts “Dark Contracts.” To better tackle the problem of Dark Contracts, the article proposes introducing transparency-related instruments to the law of consumer contracts to tackle this thorny challenge. It further argues that policymakers should design such concepts to (1) allow better scrutiny over firms’ practices and (2) empower consumers to make better-informed decisions.
Jason Harris (Sydney Law School)“Liability for ACL Breaches Within Corporate Groups and Franchise Systems”An emerging issue in corporate law concerns contribution orders for underpaid workers whereby the court can deem several entities to be within a ‘contribution order group’ and make another company liable for the unpaid entitlements where they have received the benefit of the work. There are broader contribution order regimes (not just for employee entitlements) in NZ, Ireland and Germany. I wonder whether ACL compensation orders had given rise to problems with corporate groups (i.e. assetless shell companies misleading, while the parent company benefits) and whether accessorial liability under ACL s236 is sufficient to address this? In other words, could contribution orders within corporate groups (loosely defined to include franchise systems) benefit consumers and are they worth looking at? I’ve done a bit of work within corporate law looking at veil piercing doctrines, and there is at least 1 TPA case on making a parent co liable for misleading conduct that was argued on veil piercing grounds (which I argued should have been decided on accessorial liability under the TPA instead). 
Jeanne Huang (Sydney Law School)“The Latest Generation of SEZs: Consumer-Oriented Unilateralism in China’s E-commerce Trade” (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3875223)WTO multilateralism is driven by manufacturers. However, in China, Cross-border E-commerce Retail Import (‘CERI’) has spurred a new, consumer-oriented trade unilateralism. CERI prospers within China’s National Cross-Border E-commerce Pilot Cities, which are Special Economic Zones aimed at using unilateral trade liberalization to meet consumers’ growing demands for high-quality foreign products. CERI enhances consumer benefits beyond reducing customer formalities and tax rates and lowering product prices. It re-conceptualizes consumer protection by treating consumers as diverse individuals rather than as a homothetic group. It also empowers consumers by making them ‘importers’ to minimize behind-the-border trade barriers. CERI warrants a rethinking of WTO multilateralism from its initial focus on corporations and capital owners to a revised focus on consumers.
Mary Keyes and Therese Wilson (Griffith U)“Protecting Consumers in International Disputes: Arbitration and Jurisdiction Agreements in Australian Law”The globalisation of markets for consumer goods and services means consumers regularly purchase goods and services from international suppliers.  These agreements typically stipulate that consumers must litigate or arbitrate, if a dispute arises, in the suppliers’ home jurisdiction.  As in other common law jurisdictions, in Australia there are no rules that deal specifically with the effect of arbitration and jurisdiction clauses in consumer contracts; their effect falls to be determined under the general principles that have been developed in the context of commercial transactions.  This article investigates the use of arbitration and jurisdiction agreements involving Australian consumers through an empirical study and evaluates the Australian laws which regulate these agreements.  It demonstrates that, while aspects of the current legal regime may have the capacity to protect consumers, such protections will not necessarily be applied. We review a number of recent cases that demonstrate this problem and suggest that changes to the Australian law are required to more explicitly protect consumers.  
Benjamin Hayward (Monash Business School)“‘Free Your Mind’: Using ‘The Matrix’ to Explain the Interaction Between the Australian Consumer Law and the CISG” For those of a certain age, the conflict between the characters Neo and Agent Smith depicted in ‘The Matrix’ trilogy of movies is well-known and is one of the great rivalries of cinema history.  What is not well-understood in the Australian legal context, including amongst lawyers who would be familiar with this Neo/Smith conflict, is the way in which the Australian Consumer Law interacts with the United Nations Convention on Contracts for the International Sale of Goods (the ‘CISG’). Though the CISG excludes consumer transactions from its scope, the fact that it defines those excluded transactions differently to the way in which the Australian Consumer Law defines consumer supplies provides scope for the CISG to displace the otherwise-mandatory ACL consumer guarantees.  Analogy with ‘The Matrix’ trilogy provides an excellent basis for explaining this interaction, and ensuring that its implications are understood by the legal profession. Young lawyers and law students are today provided more means than ever to acquaint themselves with the CISG, and to understand its place in Australian law.  Anecdotal evidence suggests that a knowledge gap still exists, however, amongst older lawyers – including those who may have grown up watching Neo and Smith’s conflict play out on the silver screen.  This presentation is directed at helping address this knowledge gap, and in turns, seeks to contribute to a better professional understanding of the interaction under analysis.
Victoria Stace (VUW)“Bills, bills, bills. What recent research has revealed about debt collection practices in New Zealand and how the law might respond” (Powerpoints here)Recent research conducted by Victoria University of Wellington has given insight into the experiences of debtors who find themselves facing debt collection. Financial mentors across the country, who see clients daily in unmanageable debt situations,  were asked questions around the conduct of debt collectors, the addition of fees and interest, and use of attachment orders. Particular issue emerged such as the use of intimidation, and use of attachment orders to benefits to collect old debts. This paper discusses the findings of that research and considers how the law can assist to improve standards of behaviour.
Vivien Chen (Monash Business School) with
Lucinda O’Brien, Ian Ramsay and Paul Ali		“An Impending “Avalanche”: Debt Collection and Consumer Harm After COVID-19” (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3917247)Debt collection activity is expected to rise significantly in 2021, as financial hardship becomes more prevalent due to the economic impact of the COVID-19 pandemic. Consumer advocates have warned of an impending “avalanche in debt collection” and have called for better enforcement of laws designed to protect consumers from harassment as well as unfair, misleading and deceptive conduct by debt collectors. Women’s groups have also pointed to a rise in economic abuse, and resulting indebtedness, in the context of a general escalation in family violence during the pandemic. This article examines the legal framework governing the Australian debt collection industry. Drawing on recent case law and a series of focus groups conducted by the authors, it outlines law reform and enforcement measures that would better protect consumers from harmful debt collection practices. These include specific measures to address the financial, social and psychological impacts of family violence and economic abuse
Sagi Peari (UWA)“Consumer Protection Law, Judge Made Law and the Concept of Coherence: Can They Co-Exist?”Consumer protection law intervenes into the traditional doctrines, principles and concepts of the backbone categories of private law: contract and tort. For instance, consumer law challenges the longstanding limited scope of “unconscionability” and the “implied terms” doctrines of contract law. Within the tort law category, consumer law reconceptualises the fundamental elements of the law of negligence. While significant parts of private law categories remain to be subject to the domain of the judge-made law, the consumer laws operate through legislation. The paper tackles the following two interrelated aspects of the interplay between consumer law legislation and the traditional private law categories: (1) the impact of consumer law legislation on the judge made law; (2) the relation of this legislation to a key philosophical concept of private law- “coherence”.
Catherine Niven (QUT)“Proposals to Modernise the EU’s General Product Safety Directive: A Blueprint for Australian Reform” [pre-recording of presentation here]There has been little progress on Australian product safety reforms since the 2019 public consultation on the regulatory impact assessment of introducing a General Safety Provision (GSP). Since this time, the global COVID pandemic has accelerated growth in online shopping, exacerbating the key weakness of the Australian regime: its lack of a GSP. The European Commission (EC) has identified that the growth of e-commerce has decreased the effectiveness of its General Product Safety Directive due to its lack of specificity to online selling and applicability to new e-commerce actors in the product supply chain. In June 2021, the EC commenced public consultation on significant reform proposals aimed at modernising its framework. These include dedicated reforms for online marketplaces with obligations focussed on their place in the product supply chain, specific provisions related to online sales, widening the mandatory incident reporting obligation and using new technologies to conduct product safety recalls. There appears to be significant momentum behind these reforms to be delivered under the New Consumer Agenda of 2020. Could the developments in Europe be an opportunity for Australia to build on the last decade of reform discussion by incorporating key European reform proposals to its product safety regime to elevate the level of consumer protection and create a fairer playing field for Australian businesses?    
Geraint Howells (Galway) [Keynote]“Consumer Product Safety and Online Platform Liability” (Powerpoints here)Platforms play an increasingly important role in e-commerce. This paper highlights different approaches to making them responsible and potentially liable for dangerous goods. Voluntary, regulatory and civil liability are all potential options being explored in Australia, the EU and US. This paper hopes to prompt discussion about the appropriate way forward.
Jeannie Paterson and Yvette Maker (UMelbourne)
“The Role of Consumer Protection Law in Responding to the Risks of ‘Intelligent’ Consumer Products”Intelligent consumer products like voice-activated digital assistants potentially offer tremendous benefits to many consumers. They are labour-saving devices that create opportunities to free consumers from mundane tasks and assist them to make more informed and rational decisions. They have also been promoted for their potential to facilitate the activities of daily living for older people and people with disability. Yet while intelligent consumer products may offer convenience and enhanced accessibility, they also carry risks of harm to consumers in relation to violation of privacy, bias and discrimination and interference with decision-making autonomy. This presentation will explore the role of consumer protection law in responding to these risks, with a particular focus on issues of accessibility and equity. It will also consider the role of codes of AI ethics, and the complementary contribution of other fields of law and policy, in addressing matters on which consumer protection law has less to say.
Nicola Howell (QUT) and Jeannie Paterson (Melbourne)“Remedies for emotional harm in Australian consumer credit law”Emotional harm is a highly foreseeable outcome of financial stress – whether this arises from borrowing more than is manageable (unsuitable credit), difficulties in repaying credit arising from unforeseen life contingencies (hardship) or not being able to access credit (financial exclusion). Together with co-regulation (AFCA) and self-regulation (eg, Banking Code of Practice), the National Consumer Credit Protection Act now provides an extensive regulatory framework that should help to prevent or reduce financial stress for Australian credit consumers, however, the extent to which this framework can facilitate remedies for emotional harm (and not just financial harm) has not yet been subject to academic consideration. In this paper, we seek to address this gap by examining the current and potential scope for remedies for emotional harm arising from credit law contraventions. We begin by considering the emotional harms which may arise from over indebtedness. We then identify the key statutory provisions specifically aimed at alleviating the effects of unsuitable credit and financial hardship, and the associated remedies for breach. We argue that given the purpose of these regimes it should be open to courts to award remedies aimed at responding to emotional harm. We consider the role of regulators and AFCA in remedial relief responding to emotional harm. We scrutinise the value to consumers of such responses before turning the final part to consider remedies for failure by lenders to engage with the hardship regime and the gaps in this regime in providing real obligations and remedies/redress for breach.
Zofia Bednarz (UNSW)“Using Consumers’ Data to Determine the Target Market for Financial Products: The Difficult Marriage between Financial Law and Data Protection”Digitalisation has had a profound impact on financial services, with increasingly precise data profiling of consumers being one of the drivers of profit for the industry in the digital age. However, data profiling may also result in consumer harm that could range from data breaches to unfair pricing, digital manipulation, discrimination, and exclusion of vulnerable consumers. This can be particularly problematic in financial services context due to the consequences it has on consumers’ access to financial products. In this paper I focus on the requirement to determine the target market for financial products and its interplay with privacy and data protection rules. I argue that financial product governance rules requiring target market determination for products will further incentivise data profiling of consumers by financial services providers. I analyse ways in which financial firms may collect and use consumers’ data for the purpose of constructing the target market and confirming that clients who receive offers of products are within this target market. There is a real risk that financial law and data protection frameworks have failed to strike a balance between (surprisingly) competing interests of consumer protection regarding the provision of appropriate financial products and the use of consumers’ data in digital profiling. This means that the new rules on financial products governance may backfire, resulting in unintended consumer harms.
Kate Tokeley (VUW)“The Power of the ‘Internet of Things’ to Mislead and Manipulate Consumers: A Regulatory Challenge”
(https://ndlsjet.com/the-power-of-the-internet-of-things-to-mislead-and-manipulate-consumers-a-regulatory-challenge/)		The “Internet of Things” revolution is on its way, and with it comes an unprecedented risk of unregulated misleading marketing, and a dramatic increase in the power of personalized manipulative marketing. IoT is a term that refers to a growing network of internet-connected physical “smart” objects accumulating in our homes and cities. These include “smart” versions of traditional objects such as refrigerators, thermostats, watches, toys, light bulbs, cars, and Alexa-style digital assistants. The corporations who develop IoT are able to utilize a far greater depth of data than is possible from merely tracking our web browsing in regular online environments. They will be able to constantly collect and share real-time data from inbuilt IoT sensors and trackers such as microphones, cameras, GPS sensors, and temperature sensors. Artificial intelligence (AI) can be used to analyze this raw data in order to gain insights into consumer preferences and behavior, and deliver individualized marketing messages via our IoT devices. The persuasiveness of these marketing messages is likely to be further enhanced if future IoT household assistants are developed to have human-like mannerisms and appearances. This article explains how current laws that prohibit businesses from misleading and deceiving consumers will struggle to operate effectively in an IoT marketing landscape, where questions of who can be held liable, who should be held liable, what communication should be prohibited, and how to ensure enforcement, all become more complicated. It argues that current legal frameworks will need to be re-formulated in order to maintain the ability to prevent deceptive and misleading communication. It also tackles the wider question of whether legal frameworks should be re-formulated so as to add in protections against excessively manipulative marketing. The article points to several potential ways to achieve such re-formulations. Redesigning legal regimes to effectively protect consumers in a new IoT marketing landscape will no doubt be a challenge. The starting point is to confront the fact that there are genuinely difficult problems for which existing regulatory toolkits are ill-equipped to handle.
Kayleen Manwaring (UNSW)“Enforcement-in-a-box: Computational Implementation of Private Rights”The rise in use of smart devices and cyber-physical systems has also seen a rise in attempts at technological implementation of methods of enforcement of private rights (such as contract or copyright) by suppliers of services and software supporting those devices and systems. Many of these devices and systems are hybrids of physical object, software, hardware, data and services, and often are capable of being remotely disabled or modified by the software or service provider. This capacity for remote disablement or modification has the potential to be a potent tool for service and software suppliers to regulate an individual’s use of smart devices and cyber-physical systems. These methods may be used to enforce penalties against alleged breaches of private rights without recourse to a judicial or other dispute resolution process.  This presentation will report on a work-in-progress project intended to examine these issues. Brownsword has warned that ‘full-scale technological management’ by regulators of prohibited conduct (eg a regulator technologically limiting the speed of a car or disabling it) is the ‘thick end of the wedge’ in relation to ‘destabilising’ the rule of law and degrading the importance of human ‘agency and autonomy’.  Pasquale has additionally cautioned that even in circumstances where automated enforcement is efficient, ‘critically important publicly legal values risk being lost or marginalised when dispute settlement is automated.’  This project will examine if this conceptual analysis can be extended to business entities utilising technological management to directly enforce private rights, discussing research questions along the following lines: (1) What harms to individuals, and consequently what detrimental effects on public legal values (such as protection of consumers from abuse of corporate power), might arise from technological implementation in smart devices of private law enforcement methods, such as enforcement of debts, contractual conditions or intellectual property rights? (2) To what extent do existing laws in Australia regulate these harms and detrimental effects? (3) Do legal problems arise in relation to these existing laws? That is, are any of these laws under- or over-inclusive or uncertain? Are there any new harms or detrimental effects arising that are completely unregulated by existing law? (4) How can these harms and detrimental effects be mitigated from a legal (and potentially technological) point of view? 
May Fong Cheong (ACU)“Remedies for Purchasers of Forged Art: The Potential in Section 18 ACL on Misleading Conduct”Art is acquired for its aesthetic value, for the beauty of that art piece as communicated by the artist. However, art is also increasingly acquired for the authorship of the art – buyers desiring not only art, but the work of a recognised “artist”. The authorship value of well-known artists has seen art pieces fetching skyrocketing prices transforming art as objects of aesthetic expression to art as an investment tool. The ‘commodification’ and ‘financialisation’ of art provide opportunities and economic incentives to produce counterfeits and forgeries posing unseen risk to purchasers of art. Both the art enthusiast and the art investor who pays a price for a work of art are entitled to enjoy, and obtain, that which they were led to believe – that the work is authored by the artist who painted that landscape, that object on the framed canvas piece he or she had paid for. They are entitled to the goods as described, to the attribution given of the art piece and to statements warranting the authorship and authenticity of the art. However, art authentication is a complex process: at the intrinsic level to search the truth to determine its cultural and historic value and at a practical level to protect the economic value of art and the functioning of the art market. The purchaser’s challenge to acquire authentic art pieces is further compounded by the intricacies and anomalies in the art industry; one concerning aspect is the questionable practices of auction houses. As a result, art purchasers find themselves in the precarious position of not knowing if the art pieces hanging in their walls are forged. This paper first considers two legal avenues that a disgruntled art purchaser might pursue: (i) implied conditions of goods corresponding to description in the Sale of Goods legislation; and (ii) consumer guarantees of acceptable quality, and of goods as described, under the Consumer Guarantee Law. It then considers how certificates of authenticity of authorship have been decided under the Uniform Commercial Code and under the New York Arts and Cultural Affairs Law. Finally, the paper investigates recourse to art buyers under the misleading conduct provision in section 18 of the Australian Consumer Law and argues that despite some limitations, this avenue offers the best potential for success for purchasers of forged art. 
Luke Nottage (USydney), Jeannie Paterson (UMelbourne) & Erin Turner (Choice)“Post-Pandemic Rights to Repair and Other Remedies Under the Australian Consumer Law” (PDF of Powerpoints here)
Recent survey evidence from Australia’s peak consumer NGO, for a current inquiry by the Productivity Commission into rights to repair, confirms anecdotal accounts of considerable problems faced by individuals in obtaining Australian Consumer Law remedies for suppliers’ violations of mandatory consumer guarantees (eg of “acceptable quality”, including reasonable durability). Over the last decade, suppliers may have learned not to expressly disclaim ACL obligations (risking enforcement action and fines), but also that consumers need to prove a product defect, and may be particularly prone therefore not to provide remedies since the lockdowns and other impediments to accessing justice since 2020. Our presentation looks at the extent and types of problems experienced, analyses the current ACL regime, and proposes various substantive and procedural reforms to generate better consumer redress and therefore supplier behaviour.

ANJeL-in-Europe 2021 Workshop: “Japanese Law: Connections and Interactions”

ANJeL was pleased to host this informal research webinar on 10 July, aimed at members in or closely connected with Europe, hosted by Prof Giorgio Colombo (Nagoya U) and Luca Siliquini-Cinelli (Dundee). It follows the successful inaugural symposium held at the University of Pavia in late 2019 (thankfully just before the pandemic), hosted by Giorgio as ANJeL-in-Europe coordinator. Six presentations and some linked materials are set out below. After the lively webinar, Giorgio hosted an even livelier “virtual izakaya” (nijikai) via the free Spatial Chat platform – a first for most of us and certainly for ANJeL!

Opening Remarks – Giorgio F. COLOMBO, Luca Siliquini-Cinelli1.

1. Japan’s Earliest Women Pioneers in Law Teaching — Brief Introductions of their Stories – Mark LEVIN  

[click here for Powerpoints and here for his Youtube video presentation on the wider project and paper on “Presence and Voice: The History and Status Quo of Women Law Professors in Japan“]

2. Revisiting Ramseyer: The Chicago School of Law and Economics Comes to Japan – Luke NOTTAGE  (with Craig FREEDMAN)

[Click above for paper, see below * for Abstract, and click here for Powerpoints]

3. Japan’s Low Litigation Rate: Lessons from the Labor Tribunal System – Wered BEN-SADE

4. The Japanese Unequal Treaties: From their Signing Until Their Renegotiation – Béatrice JALUZOT

5. IP-related rights and Free Trade Agreements (FTAs): A Japanese Approach – Matteo DRAGONI

6. Japan, the European Union and Global Governance – Dimitri VANOVERBEKE [click here for Powerpoints and here for his related new co-edited book]

* Freedman, Craig and Nottage, Luke R., Revisiting Ramseyer: The Chicago School of Law and Economics Comes to Japan (June 17, 2021). Available at SSRN: https://ssrn.com/abstract=3868698

Abstract: Mark Ramseyer has been a leading force in bringing to bear the methods of Law and Economics to an increasingly ambitious analysis of the Japanese legal and economic systems. He has deliberately assumed an iconoclastic position in debunking a number of widely-held beliefs about Japan. More recently he has engendered a bitter degree of controversy by idiosyncratically analysing Korean “comfort women” and residents in Tokyo before and during World War II. In this paper we examine Ramseyer’s long contribution to Japanese studies and conclude that he has too frequently let ideological objectives, paralleling three key tenets of the Chicago School of economics, interfere with what should be cool-headed analysis. While asking many of the right questions, prompting often helpful responses and further research, he unfortunately has let a priori assumptions determine his answers. Ramseyer has proven reluctant to review his assessments or implications, largely dismissing contrary evidence.

Keywords: comparative law, Asian law, corporate governance, consumer law and policy, Japanese studies, economic history, market fundamentalism, rational choice theory, social science methodology

Guest Blog: COVID-19 in Asia – China, Japan, Indonesia and Malaysia in Focus

Written by: Hao Yang Joshua Mok, student intern at the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS)

On 28 May 2021, the University of Victoria’s Centre for Asia-Pacific Initiatives (CAPI), together with the University of Sydney’s Centre for Asian and Pacific Law (CAPLUS) and the Australian Network for Japanese Law (ANJeL), hosted an online webinar celebrating the publication of ‘Covid-19 in Asia – Law and Policy Context’. A recording of the webinar may be accessed here.

Edited by Prof. Victor V. Ramraj and published by Oxford University Press, the book is a collected volume on Covid-19 law and policy issues in Asia. It draws upon the work of sixty-one authors from seventeen jurisdictions and aims to capture the initial responses of governments in response to the pandemic and highlight likely enduring legal and policy challenges.

The online webinar drew on four chapters of the book, focusing on China, Indonesia, Malaysia, and Japan’s responses to the pandemic.

  • The China chapter was presented by A/Prof. Feng Xu from the University of Victoria and discussed by A/Prof. Jeanne Huang from the University of Sydney.
  • The Indonesia chapter was presented by Dr. Nadirsyah Hosen from Monash University and discussed by Prof. Simon Butt from the University of Sydney.
  • The Malaysia chapter was presented by Dr. Azmil Tayeb from Universiti Sains Malaysia.
  • The Japan chapter was presented by Prof. Shigenori Matsui from the University of British Columbia. Prof. Luke Nottage from the University of Sydney briefly discussed both the Malaysia and Japan chapters.

A/Prof. Xu began her presentation with a reflection of China’s largely successful Covid-19 response. She suggested that we must contextualize China’s experience as an interrelationship between coercion and consent: China’s success in imposing and enforcing strict lockdown and quarantine measures required the acceptance and consent of individuals to those conditions. Turning to the book chapter itself, A/Prof. Xu suggested that China’s emergency response involved the mass mobilization of political, economic, and social resources. While effective, such measures came at a huge cost to individual rights. A/Prof. Xu concluded that the most immediate challenge for China will be the roll-out of its vaccination program.

A/Prof. Huang echoed this theme of consent and emphasized the limited scope of the right to privacy and personal information in China. While this allowed health administrators to access personal data when managing the pandemic, it reflects the tension between coercion and consent. Drawing on her area of focus, A/Prof. Huang provided some brief remarks on civil litigation against China arising out of the pandemic – raising issues of jurisdiction and service – as well as on China’s response to foreign criticism, exemplified by its trade dispute with Australia.

Dr. Hosen suggested that the Jokowi administration’s response to the Covid-19 pandemic had been too little, too late. Despite growing cases in South East Asia in early January, the government did not impose lockdown measures but rather further opened up the country. While the government eventually escalated its measures, the pandemic was already in full swing. Dr. Hosen argued that there were four barriers that contributed to the slow response and ineffectiveness of governmental measures: first, the unhealthy relationship between the Indonesian Medical Association and the Minister of Health Affairs; second, the political rivalry between President Jokowi’s administration and the current governor of Jakarta; third, the incompetence of the Jokowi cabinet; finally, the position of conservative religious groups in rejecting the request not to organize mass prayers.

In Prof. Butt’s discussion, he suggested that issues of governance, politicking, and religion are not new issues for Indonesia. Rather, they have been brought to sharp relief by the pandemic. Moreover, putting aside the government’s shortcomings, the size and geography of Indonesia presents significant difficulty. Prof. Butt concluded that looking forward, the biggest difficulty for Indonesia would be to obtain and administer vaccines in the face of those persistent issues.

Dr. Tayeb discussed issue of improvised pandemic policy and democratic regression in Malaysia. In the lead up to the Covid-19 pandemic, Malaysia was experiencing a volatile political environment which eventually resulted in a new coalition coming into power in late February 2020. Shortly thereafter, Covid-19 emerged, and the government responded by implementing strict lockdown measures. While those measures were initially successful, the country experienced a turning point. Under the backdrop of a continued power struggle, state by-elections were occurring without much restriction. This led to another wave of Covid-19 cases. Dr. Tayeb suggested that throughout the pandemic, the government’s response evinced incoherency. Moreover, the government has been using the pandemic to avoid the convening of parliament, undermining notions of accountability and transparency.

Prof. Matsui suggested that Japan was ill-prepared to deal with the pandemic and its eventual response was slow and insufficient. The difficulty was with Japan’s fragmented and restrictive infectious disease legal infrastructure. While the government eventually revised its statute and declared a state of emergency, only soft measures were imposed, because of initial legal constraints and the effectiveness of social norms. Fortunately, infection rates and death toll remained low in Japan throughout 2020. Now, however, Japan has experienced a resurgence in Covid-19 cases and there is a growing fear that this will worsen with the Tokyo Olympics. The biggest issue ahead for Japan is with its vaccination program, especially given concerns about vaccine hesitancy among the public.

Prof. Nottage went on to compare Malaysia and Japan’s responses during the Covid-19 pandemic. He suggested that in terms of balancing public health, civil liberties, and economic activity, Japan appeared to be quite successful. Prof. Nottage queried the reasons behind vaccine hesitancy this year, especially given the communitarian norms evident last year, as vaccination programs constitute the next complex phase in pandemic management in Australia, across Asia and world-wide.

Japanese Studies (& Law): JSAA conference focused on “Sustainability, Longevity and Mobility”

[Updated 13 September 2021] ANJeL has coordinated two Panels related to Japanese law, as below, for the upcoming biannual conference of the Japanese Studies Association of Australia. Due to the ongoing pandemic the 2021 conference will be a virtual event delivered via Zoom. The conference theme is ‘Sustainability, Longevity and Mobility’ and details can be found at https://languages-cultures.uq.edu.au/event/session/5776. The dates for the conference remain September 28th to October 1st 2021. Due to the nature of virtual delivery the format for the conference will be quite different from past years and registration costs will be reduced. There will be a virtual postgraduate workshop held during the conference as well.

  1. Stream 3.6 (Friday 1 October 1-2.30pm): “Japanese Law and Methodological Diversity”

The three presentations engage with diverse methodological perspectives that can be adopted to analyse Japanese law and society. Luke Nottage and Craig Freedman uncover three key tenets of the post-War Chicago School of economics, adapted by J Mark Ramseyer in analysing an increasingly broad swathe of fields, beyond the economic sphere to include recently and controversially the history of “comfort women”. They warn against letting this or any ideology skew logical arguments or factual determinations. Ayako Harada instead applies a methodology incorporating cultural and institutional perspectives to examine child custody dispute resolution in Japan. Leon Wolff ends by exploring the explanatory power of emotions and affect in explaining reconfiguration of legal relations in Japan.

“Revisiting Ramseyer: The Chicago School of Law and Economics Comes to Japan” (Prof Luke Nottage, co-authored with retired A/Prof Craig Freedman)

Mark Ramseyer has been a leading force in bringing to bear the methods of Law and Economics to an increasingly ambitious analysis of the Japanese legal and economic systems. He has deliberately assumed an iconoclastic position in debunking a number of widely-held beliefs about Japan. More recently he has engendered a bitter degree of controversy by idiosyncratically analysing Korean “comfort women” and residents in Tokyo before and during World War II. In this paper we examine Ramseyer’s long contribution to Japanese studies and conclude that he has too frequently let ideological objectives, paralleling three key tenets of the Chicago School of economics, interfere with what should be cool-headed analysis. While asking many of the right questions, prompting often helpful responses and further research, he unfortunately has let a priori assumptions determine his answers. Ramseyer has proven reluctant to review his assessments or implications, largely dismissing contrary evidence.

Luke Nottage, Professor of Comparative and Transnational Business Law, University of Sydney Law School, Co-Director of the Australian Network for Japanese Law (ANJeL). Luke specialises in arbitration, contract law, consumer product safety law and corporate governance, with a particular interest in Japan and the Asia-Pacific, and has produced 18 books and hundreds of articles and chapters. He is also Associate Director of the Centre for Asian and Pacific Law at the University of Sydney, Managing Director of Japanese Law Links Pty Ltd and Special Counsel with Williams Trade Law.

“Child Custody Dispute Resolution in Japan: A Cultural and Institutional Perspective” (Prof Ayako Harada)

This paper describes the background and the current situation of parental child custody disputes in Japan. It discusses the possibility of joint-custody legislation and its potential difficulties in effectively managing such disputes in Japanese cultural and institutional context.

Ayako Harada, Professor at Nagoya University Graduate School of Law’s Department of the Combined Graduate Program in Law and Political Science. Prof Harada specialises in legal sociology, history and theory, having graduated from Kyoto University and worked at Waseda University before joining Nagoya University. A major field of research and writing is family law dispute resolution.

“Japanese Law: Once More with Feeling” (A/Prof Leon Wolff)

Emotions enrich our lives. They define our passions and interests; they give colour to our life events; and, as e-motions, they move us to make choices and decisions. The psychological and neurological sciences have long dismissed the false dichotomy between the unruly horse of the emotions and the calm rider of the intellect. And although sociologists and cultural critics have drawn inspiration from these scientific traditions to develop feeling rules and affect theory to explain transformations in social relations, legal sociologists have kept their feelings in check — at least in their scholarly accounts. This paper explores the explanatory power of emotions and affect in explaining reconfiguration of legal relations in Japan. It considers the different conceptualisations of feelings, their corporeal and psychic dimensions, how they manifest intra- and inter-subjectively, and the methodological challenges involved in accessing, operationalising and analysing emotions to make better ‘sense’ of Japanese law and society. This paper argues that emotions, as forces that drive movement, offer richer possibilities for explaining socio-legal change than current, more static material accounts based on national character, institutional design, politics or rational choice models.

Leon Wolff, previously Associate Professor of Law at the Queensland University of Technology and PhD candidate at the Griffith Asia Institute, was founding co-director of the Australian Network for Japanese Law (ANJeL). Specialising in Japanese law and society, Leon is currently working on a project on the role of emotions and affect on legal change and justice in Japan.

Discussant: Associate Professor Trevor Ryan teaches Legal Theory, Constitutional Law and other classes at Canberra Law School, where he is Program Director of the Juris Doctor. Trevor’s main research interests are elder law, disability, and legal education, with a comparative law interest in Japan. Trevor has published on a range of topics including dementia, guardianship and private law; the right to housing; and the role of stakeholders in shaping legal education. 

2. Stream 3.1 Weds 29 Sept 12.30-2pm: “The Shadow of Japanese Law – How Sports Elites and the Marginalised Poor Skirt the Law”

This panel has two presentations exploring the surprising ways corruption and crime function in Japan despite the criminal law. The presentations focus on the two extremes of Japanese society — the elite (professional sumo athletes) and the poor (elderly prisoners who now occupy a significant proportion of the incarcerated). Both presentations explore the surprising ways the elite and the marginalised ignore, invoke and side-step the law to achieve socio-economic goals.

“Subverting the Prison: Stigma, Strategy and Japan’s Aging Inmates” (Carol Lawson, University of Tokyo Law Faculty)

Prison populations are aging across all industrialised jurisdictions. However, in Japan, the growth in older prison admissions has long been outstripping the rate of aging in society as a whole. Nearly 38% of admissions were aged 50 or more in 2018, and there is strong evidence that some older Japanese are leveraging the prison system as de facto aged care. This paper explores the confluence of social disintegration and poverty that have contributed to Japan’s grey crime wave. It then examines the role of legal consciousness in this sociolegal phenomenon. Specifically, the paper analyses data collected from 1500 prisoners in 2016 using Valerie Braithwaite’s ‘motivational postures’ heuristic to show how marginalised older Japanese with compliant attitudes to authority have repeatedly embraced the stigmatising criminal identity to receive law’s protection. Finally, it demonstrates how this deft subversion of prisons to meet individual care needs has driven previously inconceivable legal and social change, rewriting the rule book on criminal justice regulation in Japan – without reliance on rights discourse.

Carol Lawson commenced as Associate Professor of (Anglo-American) Law at the University of Tokyo Law Faculty in September 2021. Before that she was the Minter Ellison Research Associate at the University of New South Wales Faculty of Law and a doctoral candidate at the Australian National University. She works on regulation and global governance with a focus on criminal justice regulation and closed environments. Her approach is through a comparative sociolegal lens, using mixed methods to carry out empirical research. She is completing a study on the nature and impact of civil prison oversight in Japan and Australia, and planning a project on regulating closed environments in the aged care sector. An insight common to both studies is the importance of developing a granular understanding of regulatees’ compliance postures before attempting a regulatory intervention. She teaches courses in Japanese and Anglo-American law, and coaches in the Tokyo Intercollegiate Negotiation Competition. She also serves on the Japan Law Translation Council and as an expert adviser to the Japanese legal translation community, including on plain legal language.

“Integrity and corruption in sport: Lessons from Japan and match-fixing in sumo” (Matt Nichol, CQU [presenter*] with Elisa Solomon and Keiji Kawai

Professional sumo in Japan provides a different perspective on corruption in sport due to the long-standing and until recently accepted tradition of match-fixing in makuuchi and jûryô, the two highest divisions of wrestling known as sekitori. As sports gambling is generally illegal under Japan’s Criminal Code, match-fixing in sumo is not related to gambling. Instead fixing is largely the result of the promotion rules, where rikishi (‘wrestlers’) with a losing record in one of the six annual tournaments face demotion in rank and division, and with it, the loss of status and income of competing in sekitori. Evidence surfaced in the 1990s and 2000s of match-fixing involving wrestlers with above expected winning records when facing a losing record in the last days of a tournament. A police investigation into illegal gambling in baseball in 2011 led to evidence of fixing involving a number of rikishi and resulted in an investigation by the Japan Sumo Association that confirmed the first official cases of match-fixing in sumo. This chapter will examine the cultural, institutional and sumo specific factors that encourage fixing and how trust was restored with the public, fans and sponsors after the 2011 fixing scandal

* Matt Nichol is a Lecturer in Law at the College of Business at Central Queensland University (Melbourne Campus, Spencer Street Melbourne VIC 3000). His research focuses on labour mobility, labour regulation and wages in professional baseball in the United States and Japan. Matt has also researched free agency and corporate governance in the Australian Football League. Matt’s research utilises regulatory theory, approaches to labour and the principle that labour is not a commodity to examine the regulation of labour in professional sport. In 2019, Matt’s book Globalization, Sports Law and Labour Mobility: The Case of Professional Baseball in the United States and Japan was published by Edward Elgar Publishing.

Elisa Solomon is an Asia-Paciic Employment Relations Specialist with Bristol Myers Squibb, and a Research Assistant with Monash University, Australia. Elisa is a lawyer with experience researching and advising on labour laws and regulations in the Asia-Pacific, and holds a Master of Laws. Having worked in both the public and the private sector in Japan, Elisa is experienced in conducting research on Japanese laws and policies. Elisa has conducted research on laws surrounding workers’ protections in Japan, participation of women in Parliament, and the assessment of directors’ liability in Australia and Japan. She has previously worked for the International Labour Organization in Thailand on a regional project analysing countries’ compliance with the Bali Declaration.

Keiji Kawai is a Professor of Sport Law in the Department of Policy Studies at Doshisha University in Kyoto, Japan. His book, The Legal Status of Professional League Players (2003), was awarded the Okinaga Prize by the Labor Research Center. He served as Visiting Researcher at the University of Massachusetts at Amherst from 2007 to 2009. Keiji was the General Secretary of the Japan Sports Law Association from 2017 to 2019 and is also on the arbitrator panel at the Japan Sports Arbitration Agency. He was an executive board member of the Nippon Basketball League from 2013 to 2015. He is currently conducting comparative studies funded by the Japan Society for the Promotion of Science on sports accidents and compensation.

Discussant: Associate Professor Trevor Ryan teaches Legal Theory, Constitutional Law and other classes at Canberra Law School, where he is Program Director of the Juris Doctor. Trevor’s main research interests are elder law, disability, and legal education, with a comparative law interest in Japan. Trevor has published on a range of topics including dementia, guardianship and private law; the right to housing; and the role of stakeholders in shaping legal education. 

Re-imagining the Japan-Australia (international arbitration) relationship

As a submission to the ANU’s Australia-Japan Research Centre project on “Reimagining the Japan Relationship”, funded by the DFAT-linked Australia-Japan Foundation, I have submitted the concluding chapter of my newly-published book: International Commercial and Investor-State Arbitration: Australia and Japan in Regional and Global Contexts (Elgar, 2021), which will be launched by Chief Justice Allsop of the Federal Court of Australia on 17 June 2021.

The book tracks the historical evolution of international arbitration, as the primary mechanism for resolving cross-border business disputes nowadays, in the direction of more globalisation but also more formalisation – reflecting in growing costs and delays. The COVID-19 pandemic has belatedly forced international arbitration mostly online, and new practices will likely persist as travel restrictions are eased (Part I). However, to maximise those possibilities and keep reducing costs and delays, there should be more structured and sustained bilateral cooperation between governments, law reform initiatives, arbitral institutions, judges, lawyers and academics (Part II).

Arb-Med for International Arbitration: 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 Thursday 17 June 2021 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 arbitration) in the September 2020 Consultation Draft Rules, so draft Article 55 reproduced below.

My analysis for the Kluwer Arbitration Blog (posted 1 May 2021) 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

[Updates: This 12-chapter Intersentia book in the International Academy of Comparative Law congress series, examining 13 diverse jurisdictions including Japan and Australia, Luke Nottage and Makoto Ibusuki (eds) Comparing Online Legal Education: Past, Present and Future (Intersentia, June 2023) will be launched kindly by NSW Chief Justice Andrew Bell on 3 August at Sydney Law School. The book project was supported by the University of Wollongong’s Transnational Law and Policy Centre as well as ANJeL and Sydney Law School.

As background, IACL Deputy Secretary-General Dr Alexandre Senegacnik kindly interviewed/recorded me about the key findings of this IACL series book to listen to or download at https://cafecomparatum.podbean.com/ (17 August 2022). With presentations also by some chapter / jurisdictional report authors, CAPLUS with others hosted on 1 February 2022 a related webinar focusing on “Asia-Pacific Online Legal Education Before and After the COVID-19 Pandemic”, with a video recording later uploaded on Youtube – click here.] In addition, some research assistance for this book project has been funded through the University of Wollongong’s new Transnational Law and Policy Centre, which is also supporting that webinar and was the main host for another webinar on 15 June 2022 covering several further jurisdictions. I also presented my draft General Report at Griffith University Law School on 10 August 2022.]

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 jurisdictional 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 book series previously published by Springer and henceforth by Intersentia.

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. Here on SSRN is our draft General Report elaborating on this framework and summarising Special Reports from the various jurisdictions, and here is Nottage’s detailed audio-visual recording of that General Report (almost 1 hour .mp4 video / powerpoint presentation).

  • 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?

Below highlighted in bold are the jurisdictions for which Special Reports were provided, summarised in the General Report by Nottage and Ibusuki for the October 2022 IACL conference (for which a draft is on SSRN here).

1. Australie/Australia [on SSRN]William van Caenegem (Bond  University) & Trish Mundy (University of Wollongong)
2. Belgique/Belgium Jan-Baptist Lemaire (KU Leuven)
3. Brunei & Malaysia / Singapore [on SSRN]


4. Canada  [on SSRN]		Nobumichi Teramura (Universiti Brunei Darussalam, Institute of Asian Studies) & Salim Farrar (University of Sydney, Law School)

Adrien Habermacher (UMoncton)
5. Chypre/Cyprus [PDF draft]Demetra Loizou and Lida Pitsillidou (University of Central Lancashire, Cyprus) 
6. Croatie/Croatia [longer version on SSRN]Mirela Župan (University  of JJ Strossmayer in Osijek Faculty  of Law)
7. Danemark/ Denmark Per Andersen (Aarhus University)
8. Estonie/Estonia Age Värv (University of Tartu,  Faculty of Law) 
9. Etats-Unis/USAMichael Hunter Schwartz  (University of the Pacific,  McGeorge School of Law)
10. Hongrie/HungaryIstván Hoffman and András Szabó (Eötvös Loránd Université)
11. Italie/Italy [PDF draft]Rossella Esther Cerchia and Barbara Vari  (University of Milano Statale) 
12. Japon/Japan [on SSRN]Kenichi YONEDA (Kagoshima  University) and Luke Nottage (University of Sydney)
13. Macao/Macau [on SSRN]Rostam J. NEUWIRTH, Alexandr SVETLICINII, Muruga Perumal RAMASWAMY (University of  Macau) 
14. Norvège/Norway Tobias Mahler (University of Oslo)
15. Pakistan [PDF draft]Syed Imad-ud-Din Asad 
16. Pays-Bas/ Netherlands Ernst van Bemmelen van Gent (UDO, Utrecht University)
17. Roumanie/ RomaniaDaniela-Anca DETESEANU  (Universitatea din Bucuresti)
18. Royaume-Uni/UK 

19. Seychelles [on SSRN]

20. South Africa		Andra le Roux-Kemp  (University of Lincoln)

Nyasha Noreen Katsenga (University of Seychelles)

Edwin Coleman (University of Johannesburg, CICLASS)
21. Tchéquie/Czech  RepublicDavid Sehnálek (Masaryk University)
22. Turquie/Turkey Elif Küzeci  (Bahçeşehir University) 
23. VenezuelaEugenio HERNANDEZ-BRETON  (Universidad Central de  Venezuela, Universidad  Monteavila, Academia de  Ciencias Politicas y Sociales)
24. Hong Kong [on SSRN]Alice Lee and Wilson Lui (University of Hong Kong)

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.