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.

ASEAN Consumer Law Harmonisation and Cooperation: Achievements and Challenges

This is the title of my next book, co-authored with Profs Justin Malbon, Jeannie Paterson and Caron Beaton-Wells in Melbourne, which will be published by Cambridge University Press around the end of this year in its series on “Integration Through Law: The Role of Law and the Rule of Law in ASEAN Integration“. It is the first Western-language research monograph detailing significant developments in consumer law and policy across the Association of Southeast Asian Nations, underpinned by a growing middle class and implementation of the ASEAN Economic Community from 2016. Eight chapters examine consumer law topics within ASEAN member states (such as product safety and consumer contracts) and across them (financial and health services), as well as the interface with competition law and the nature of ASEAN as a unique and evolving international organisation. We include insights from extensive fieldwork, partly through several consultancies for the ASEAN Secretariat over 2013-5, to provide a reliable, contextual and up-to-date analysis of consumer law and policy development across the region. The volume also draws on and contributes to theories of law and development in multiple fields, including comparative law (with references also to consumer law developments in Australia, Japan and the EU), political economy and regional studies.

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New Frontiers in International Arbitration for the Asia-Pacific Region (3): What Future for ISDS?

After Australia’s general election held on 18 May 2019, the prospects for investor-state dispute settlement (ISDS) and therefore investment chapters in free trade agreements (FTAs) remain unclear not only for Australia but also the wider Asia-Pacific region. This posting provides some backdrop and reiterates a proposal for a bipartisan (and bi-national) approach by Australia (especially with New Zealand) to more actively promote a “permanent investment court” (or at least some of its core features) as a compromise alternative to conventional ISDS, for its future treaties as well as in reviewing older ones. This should be not just in pending FTA negotiations with the European Union, which now already insists on such a court for resolving investor-state disputes (aiming also to develop a multilateral investment court), but also in (re)negotiations with other Asia-Pacific states. A version of this posting is with the East Asia Forum blog too.
This proposal will be tabled and hopefully discussed at the upcoming seminar at the University of Hong Kong, on 15 July, as part of a joint project over 2019 with USydney on “New Frontiers in International Arbitration for the Asia-Pacific Region“.

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Guest blog: Corporate (Mis)Governance in Malaysia (& Japan)

Written by: Dr Vivien Chen (Monash University) & Preeti Sze Hui Lo (USydney law student and CAPLUS intern)
[Introduction by Luke Nottage: A Nikkei article of 3 April 2019 highlights how activist investors are increasingly calling for shakeups of corporate boards across Asia, especially in Japan since 2014, but also China, Singapore, South Korea and Hong Kong. It also reports how the Asian Corporate Governance Association has downgraded Japan from 4th ranking in 2016 to 7th ranking in 2018, and upgraded Malaysia from 7th to 4th. Is that switch justified?
Perhaps Japan is being judged too harshly for the recent Toshiba and Nissan (Carlos Ghosn) scandals, or the 2012 Olympus saga, despite the country introducing new Stewardship and Corporate Governance Codes from 2015. Perhaps too much weighting is given in rankings or assessments for the numbers or proportions of independent non-executive directors on boards. This is despite mixed evidence about whether corporate performance has generally improved or other expected benefits have accrued as independent director requirements have become an increasingly popular reform across other Asian economies, as reviewed in the chapters on Australia and Japan in my 2017 co-edited book.
And what about Malaysia? Even the largest 100 listed companies, based on their formal disclosures, don’t score too well on the ADB-supported ASEAN Corporate Governance Scorecards – although they seem to be improving. Around 40 percent of all listed firms remain government-linked companies (GLCs), in sharp contrast to Japan (as illustrated in Figure 4 of this 2018 OECD report on Asian stock markets), but government ownership can be problematic especially when the same political party (like UMNO until last year) remains in power over extended periods. Some good news from a 2018 book by UMalaya Prof Edmund Gomez et al is that since the Asian Financial Crisis in 1997 there are far fewer appointments of (ex-)UMNO politicians to the boards of GLCs and the various government-linked investment companies or sovereign wealth funds that invest in them and other listed companies. Directors and CEOs are increasingly professionalised. The bad news is that many may still rely directly or indirectly on the Minister of Finance for appointments, and so might be expected (like good butlers!) to anticipate the Minister’s preferences. The risk of conflicted interests grows if the Minister of Finance is also the Prime Minister, as was the case for Dr Mahathir Mohamad after the AFC (1998-2003) and especially Najib Razak (2008/9-2018) until UMNO remarkably lost the general election last year. Part of the reason for that election loss was the collapse of 1MDB (1Malaysia Development Berhad), a sovereign wealth fund established by Najib when he became Prime Minister in 2009.
One guest blog posting below, by this semester’s CAPLUS student intern Preeti Lo, highlights some of the warning signs that all was not well with 1MDB, linking to her PDF timeline of key events in that scandal drawing partly on a book by Wall Street Journal authors (“The Billion Dollar Whale“, 2018). The other posting, by Monash University’s Dr Vivien Chen, outlines her forthcoming article on challenges afflicting corporate governance in Malaysia more broadly and especially when it comes to enforcing directors’ duties. They provide useful context to my ongoing research, supported by the Sydney Southeast Asia Centre, extending to Malaysia (and Thailand and Cambodia) a previous analysis of the proliferation and realities of independent directors in Asia.]

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Guest blog: review of “ASEAN product safety law”

Written by: Prof Sothi Rachagan (Vice-Chancellor, Nilal University, Malaysia)
[Prof Rachagan, doyen of consumer law and policy studies in Southeast Asia, has kindly provided the following review of my conference volume co-edited with Chula Uni Prof Sakda Thanitcul, published by Winyuchon (Bangkok) in 2016 in English plus Thai translation, with a version of the introductory chapter available here.]

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Japanese Law Compared: Past, Present and Future

The Inaugural ANJeL-in-Europe symposium, organised by the new ANJeL-in-Europe convenor A/Prof Giorgio Colombo from Nagoya University, will be hosted by the University of Pavia on 23 September 2019. This workshop-style symposium will share current (or planned) research comparing Japanese law. Presenters will explain not only their (expected) findings but also whether and how their choice of topic or research method may be influenced by their home jurisdiction’s legal tradition or approach towards comparative law. The symposium will then consider scope for productive research collaboration, as well as potential joint teaching and community outreach initiatives, across national borders within and beyond Europe. ANJeL co-directors and other key members will share their experiences of such cross-institutional cooperation since 2002. A broader aim of this symposium is to explore establishing a similar network of scholars and legal professionals across Europe, interested in engaging with Japanese law.

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New Frontiers in International Arbitration for the Asia-Pacific Region (2): Japan, China, Hong Kong, Australia and Singapore

Here are some papers to be presented and discussed at a symposium on Monday 15 July at Hong Kong University, as part of a joint research project over 2019 with the University of Sydney Law School.

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New Frontiers in International Arbitration for the Asia-Pacific Region (1): HKU/USyd research project

The central administrations of the University of Hong Kong and the University of Sydney have provided A$17,000 each for this joint research project over 2019, centred around two conferences at HKU on Monday 15 July and at USydney on Monday 18 November. The lead co-investigators are respectively A/Prof Shahla Ali and Prof Luke Nottage. Below we set out the project’s Aims, Significance and Outcomes. Further updates are expected on this Blog.

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Corporate behaviour, dispute resolution and Japanese law: JSAA conference session (3 July 2019)

This is the title of a panel for the next Japanese Studies Association of Australia (JSAA) conference, to be held 1-4 July at Monash University in Melbourne. The panel will be facilitated by ANJeL and chaired by its ANU-based co-director, A/Prof Heather Roberts. The panel session (5:5) has been set for Weds 3 July 9-10.30am.
Proposed presenters are:
• Prof James Claxton, Kobe University, Prof Luke Nottage, University of Sydney (contact person), & Dr Nobumichi Teramura, UNSW
• A/Prof Leon Wolff, Queensland University of Technology
• Prof Veronica Taylor, Australian National University
• A/Prof Stacey Steele, Melbourne Law School
The four-paper panel will examine how leadership in Japanese firms is evolving (or not), in the context of recent regulatory developments in insolvency law, labour law and corporate governance. It will also consider how this may correlate with attempts to encourage firms in Japan as well as from abroad to make more use of new international arbitration and mediation facilities being developed or proposed recently for Japan.

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Japanese (legal) history, culture and “hidden” Christianity

[This is a research note for a documentary series being developed from Sydney analysing the world-wide spread of Christianity, which now attracts more believers in Asia and Africa than in the West. Christianity has not recovered from severe persecution in Japan during the 16th century, including martyrdoms in Nagasaki and Kyoto, but it has left surprising legacies – as noted even by the Gekkeikan sake company from southern Kyoto. The story reveals interesting points of intersection with Japan’s history, culture and law.]
Japan is a fascinating case study of a country in Asia that had an early and positive encounter with Christianity from the mid-16th century, but then severe persecution by Shoguns (generalissimos) seeking to maintain political control (Part 1 below). Western powers forced the country to reopen to the world from the mid-19th century and to allow Christianity to be promoted again. But the new government leaders pursued a strong secularist agenda to modernize the nation and rid itself of “unequal” trade treaties. This paradoxically fed into support of nationalist and militarist State Shinto, resulting in pressure on the Church as well as the Pacific War (Part 2). Christianity never took off in a big way in Japan, even after WW2 (Part 3), partly because it was too associated with America as a potential (& eventually actual) occupier, in contrast with Korea where Christianity and the West were seen by nationalists as potential allies against the Japanese as colonisers. Yet Christianity arguably has had a “hidden” influence through many centuries in Japan (Part 4). It can be seen as an example of how a small but dedicated following can have a disproportionate influence across many spheres – big and small (Part 5).

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Review – Rieko Kage “Who Judges? Designing Jury Systems in Japan, East Asia and Europe”

[Draft presentation / review for an authors-meet-readers session at the Asian Law & Society Association conference, 29 Nov – 1 Dec, Bond University. Remarks / asides in [[square brackets] and/or hyperlinked references, plus some edits, were adjusted afterwards for a final version being published in (2019) Asian Journal of Law and Society]
(Cambridge University Press 2017) xiii + 264 pages, ISDN 978-1-107-19469-4 Hardback
Reviewed by: Luke Nottage
University of Sydney Law School & Australian Network for Japanese Law (ANJeL)
This is a fascinating, compellingly argued, carefully researched and beautifully written empirical analysis of how the relative strength of “new left” against traditional right and old left political parties impacts differently on the introduction and design of “jury” or “lay judge” systems since the 1990s in East Asia and beyond. Kage’s mixed-method study convincingly shows how such political dynamics result in different degrees to which power is transferred away from professional judges and towards lay people being involved in adjudicating criminal matters. This transfer of power, which reduces judicial independence vis-à-vis the public (by involving them in adjudication) during an era where independence has often been growing vis-à-vis politicians, is most extensive in Spain (with a lay judge system was introduced in 1995), quite extensive in Japan (with the saiban’in system introduced in 2004, although not implemented until 2009), less extensive in South Korea (2007), and least extensive in Taiwan (comparing a “lay observer” Bill submitted in 2012). Key benchmarks for such a comparative assessment (summarized in Table 1.2 at p17) are whether professional judges retain powers to determine which cases end up being heard by lay judges, and voting rules allow lay judges to dominate binding decisions (p15).

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