Publications and Webinars on Asia-Pacific arbitration and ISDS

On 23 March 2022 Kyoto University awarded Luke Nottage an LLD by publications for his book of selected/updated and some new essays on International Commercial and Investor-State Arbitration: Australia and Japan in Regional and Global Contexts (Elgar, 2021). In addition, a Transnational Dispute Management report of (Young-OGEMID listserv) Q&A about the book was published in February 2022.

On 2 March 2022 Prof Luke Nottage joined Dr Michael Hwang SC (Singapore), Neil Kaplan CBE QC SBS (Hong Kong), Hafez Virjee (Paris) for a public webinar entitled “Between Theory and Practice”, discussing the development of international arbitration particularly in the Asia-Pacific region and the place of Australian practitioners in this global market: watch the recording here. The webinar also discussed the benefits of pursuing international arbitration as an elective course, in the context of the large range of international arbitration materials made available to Sydney Law School students and staff through the Delos Dispute Resolution platform thanks to a subscription donated by Dr Hwang.

On 25 February Luke Nottage was interviewed for a podcast recording by a Bosnia-based association for arbitration, discussing the hot topic of transparency vs confidentiality particular in investor-state dispute resolution. Below is the outline of key points discussed.

In addition, Luke Nottage spoke on ISDS and investment treaties at the UoW Transnational Law and Policy Centre‘s co-hosted symposium on topics being negotiated in the Australia-India FTA (recording here), focusing on mandatory mediation before investors arbitrate disputes, and was then invited to speak on ISDS reform more generally for a symposium hosted by the Indian government’s Centre for Trade and Investment Law.

Some of Luke Nottage’s related recent publications include an overview chapter for a new book on the Asian Turn in Foreign Investment, an econometric analysis of ISDS-backed treaties on FDI flows, international arbitration and society at large (in the new Cambridge Compendium), professional diversity in international arbitration, and a review forthcoming in the Australian Law Journal of a new book on International and Australian Commercial Arbitration.

* * *

25 February 2022 webinar on Transparency in ISDS:

  • Pros and cons of transparency in international arbitration generally?
    • Fewer costs and delays in procedures and award-writing if procedure limited to the parties/counsel and arbitrators, not wider public
    • vs leads to more info asymetries in this market for services (arbitrators, especially lawyers, even expert witnesses) hence potential costs and delays: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2987674
    • If diminishing net cost savings, even in intl commercial arbitration, less attractive balance from rule of law perspective, undermining legitimacy of international arbitration compared to (more public) litigation – see (Menon CJ article, quoted in my JoIA article on ACICA Rules 2021 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3931086: incidentally, those don’t relax confidentiality but do require disclosure of third-party funders)
    • Especially in investor-state arbitration, given its inherent greater public interests, and growing media attention (and polarisation)
  • Current regime:
    • Already considerable (surprising) transparency in ISA re awards (2/3): https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3227401 **
    • ICC Rules (mostly an ICA org, occasionally ISA): no confidentiality imposed on parties
    • ICSID Convention / Rules (2/3 of ISA cases): likewise, but eg „shall promptly“ publish „excerpts of legal reasoning“ in awards, need consent of parties for full award (or leak!)
    • Ad hoc arb UNCITRAL Rules (eg 2010): likewise, can publish awards if parties consent, arbitrator discretion re other transparency (eg Philip Morris v Australia procedural order)
      • Revised 2013 for transparency in all treaty-based arbs, then 2014 Mauritius Convention to extend transparency to pre-2014 treaties (whether UNCITRAL or other Rules)
  • The recent amendments of investment arbitration rules (most notably ICSID) and dispute resolution clauses in IIAs [eg] to allow third-party submissions.
    •  ICSID already in 2006 had amended its Rules for Convention and AF cases to somewhat expand confidentiality – https://icsid.worldbank.org/resources/rules-and-regulations/amendments/about
    • Recently decided further ICSID Rules revisions (since late 2016) align AF Rules (which also now can be adopted even without any party being member of the ICSID Convention) with expansive transparency across all stages as in UNCITRAL Rules; plus for ICSID (Convention states) Arb Rules eg at https://icsid.worldbank.org/resources/rules-amendments
      • [Proposed Rule 62] Automatic publication of award if 60 days pass and no objection lodged by a party (cf earlier debate that such „deemed consent“ too incompatible with Convention, which would need to be then amended but too many member states!)
      • [Rule 63] Publish excerpts of legal reasoning re decisions other than awards, eg on jurisdiction (eg recently under Australia-Egypt BIT: do treaties providing that a host state „shall“ consent to ISA provide advance consent to that procedure? Earlier see my https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2424987)
      • [Rule 64] publish other docs lodged (eg party submission) also if agreed by parties or tribunal discretion / weighing
      • [Rule 65] shall allow non-parties to attend hearings (and publish transcript or recording) unless a party objects
      • [Rule 66] but subject to redaction etc for „confidential information“ (listed types below)
      • [Rule 67] expanded provisions so tribunals MAY allow submissions etc by „non-disputing parties“ eg amicus curiae – text below bolded
      • [Rule 68] provisions so tribunals SHALL allow „non-disputing treaty parties“
  • Tension between the transparency concerns expressed by the States in the context of ISDS and the lack of actual application of the transparency rules in practice. 
    • Yet only 9 ratifications of Mauritius Convention, few of the big players (eg Canada 2016, Switzerland 2017, Australia 2020 alongside review of old BITs – but no public report!): lose control / treaty negotiating leverage? Prefer incorporating tailored regime in treaties, anyway need to do so (Rules options provided, and/or amendments) for post-2014 treaties as Mauritius Convention doesn’t apply to those
    • Some host states have been reticent about too much transparency, including in treaty (re)drafting or UNCITRAL reform deliberations: exposes their (even alleged) poor governance (hence many investors favour transparency, potentially even encouraging settlement: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2065636), impede settlement (only partly empirically justified? ** and see further Ubilava at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3352181), more costs and delays (arguments over exceptions to transparency: Prof Zachary Douglas at https://www.claytonutz.com/ialecture/previous-lectures/2020)
  • Impact of legal tradition and culture on the approach to transparency in ISDS?
    • Less determined by say civil vs common law tradition, more eg socialist law / governance (eg Vietnam etc haven’t even ratified ICSID Convention, Chinese treatise were slow to incorporate much transparency) or developing country status (eg India?)
    • Culture might have some (small) impact: surveys etc show Eastern parties / counsel see confidentiality as advantage over litigation compared to Western, more generally think of eg https://en.wikipedia.org/wiki/The_Farewell_(2019_film) ?
  • Possible solutions to the improvement of transparency, while maintaining the benefits of confidentiality that the parties desire
    • States party should try to agree in treaties in advance
    • or during proceedings (but then host state and investor, and often acrimonious generally)
    • Otherwise, tribunals and counsel need to be aware of the competing interests, pros and cons of transparency (especially for costs and delays) as discussed above, when weighing whether and how to allow disclosures.

New ICSID (Convention) Arbitration Rule 66

Confidential or Protected Information

For the purposes of Rules 62-65, confidential or protected information is information

which is protected from public disclosure:

(a) by the instrument of consent to arbitration;

(b) by the applicable law or applicable rules;

(c) in the case of information of a State party to the dispute, by the law of that State;

(d) in accordance with the orders and decisions of the Tribunal;

(e) by agreement of the parties;

(f) because it constitutes confidential business information or protected personal

information;

(g) because public disclosure would impede law enforcement;

(h) because a State party to the dispute considers that public disclosure would be

contrary to its essential security interests;

(i) because public disclosure would aggravate the dispute between the parties; or

(j) because public disclosure would undermine the integrity of the arbitral process.

Rule 67

Submission of Non-Disputing Parties

(1) Any person or entity that is not a party to the dispute (“non-disputing party”) may

apply for permission to file a written submission in the proceeding. The application

shall be made in the procedural language(s) used in the proceeding.

(2) In determining whether to permit a non-disputing party submission, the Tribunal

shall consider all relevant circumstances, including:

(a) whether the submission would address a matter within the scope of the dispute;

(b) how the submission would assist the Tribunal to determine a factual or legal

issue related to the proceeding by bringing a perspective, particular knowledge

or insight that is different from that of the parties;

(c) whether the non-disputing party has a significant interest in the proceeding;

(d) the identity, activities, organization and ownership of the non-disputing party,

including any direct or indirect affiliation between the non-disputing party, a

party or a non-disputing Treaty Party; and

(e) whether any person or entity will provide the non-disputing party with financial

or other assistance to file the submission.

(3) The parties shall have the right to make observations on whether a non-disputing

party should be permitted to file a written submission in the proceeding and on any

conditions for filing such a submission.

(4) The Tribunal shall ensure that non-disputing party participation does not disrupt the

proceeding or unduly burden or unfairly prejudice either party. To this end, the

Tribunal may impose conditions on the non-disputing party, including with respect

to the format, length, scope or publication of the written submission and the time

limit to file the submission.

(5) The Tribunal shall issue a reasoned decision on whether to permit a non-disputing

party submission within 30 days after the last written submission on the application.

(6) The Tribunal shall provide the non-disputing party with relevant documents filed in

the proceeding, unless either party objects.

(7) If the Tribunal permits a non-disputing party to file a written submission, the parties

shall have the right to make observations on the submission.

** “… around 85% of cases where either the investor or the state have won are fully Public, and almost all the rest are only Partly Confidential. For settled cases, as italicised, 41% are Public or Partly Confidential.  This suggests that minimising costs and delays through early settlement may often be facilitated by keeping the outcome at least partly private, but not necessarily in all situations.”

Asia-Pacific Online Legal Education Before and After the COVID-19 Pandemic

[Update: video recording on Youtube – click here.]

This 1 February 2022 noon-1.30pm (AEDT) webinar at Sydney Law School discusses 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, across several Asia-Pacific jurisdictions: Australia, Japan, Canada, Brunei/Malaysia/Singapore, Macau and Hong Kong. It draws on draft National Reports for an International Academy of Comparative Law conference hosted over 23-28 October 2022 in Asuncion (Paraguay), comparing over 20 jurisdictions worldwide, for a volume to be published by Intersentia co-edited by Professors Luke Nottage and Makoto Ibusuki.

Find out more about the project, including links to several draft reports.

Speakers:
Registration – gratis:

Please click here to register online.

Please click here to register in-person. (There are limited places available to attend this event in-person.)

This event is hosted by the Centre for Asian and Pacific Law at Sydney Law School, Australian Network for Japanese Law (ANJeL) and the Transnational Law and Policy Centre at the University of Wollongong.

Guest Blog: The Role of Independent Directors in Contemporary Asia

Written by: Joseph Black (CAPLUS law student intern, 2021)

On 26 October 2021 the Contemporary Asia International Forum Series coordinated a timely panel event entitled ‘The Role of Independent Directors in Contemporary Asia’. The panel was moderated by Dr Edith I Tzu Su, Associate Professor at the National Chung Hsing University in Taiwan, the host institution. The event was supported by the Centre for Asian and Pacific Law at the University of Sydney. Panelists were Dr Indraijt Dube, Professor of Intellectual Property Law at the Indian Institute of Technology Kharagpur; Dr Anil Hargovan, Associate Professor at the University of New South Wales; Dr Luke Nottage, Professor of Comparative and Transnational Business Law at the University of Sydney; and Dr Chun-Ren Chen, Professor at the National Cheng Kung University in Taiwan. We had the opportunity to explore key and original themes: the roles of independent directors in India; the roles of independent directors in Southeast Asia; and more. A few major questions reverberated throughout the session: are independent directors (although not executives or employees) de facto part of a wider managerial team; what are the implications of transplanting non-Asian laws and norms into Asian contexts (with a stronger blockholder tradition even in listed companies) and how are Asian companies distinguished from non-Asian companies? What made the webinar particularly interesting is that speakers had diverse insights and answers to these very topical and pressing questions.

After Dr Su commenced the session and introduced speakers, and Dean Chang Yen Li of the National Chung Hsing University delivered a cordial welcome, Dr Nottage commenced the discussion on corporate governance and independent directors, sketching the growth of sharemarkets in ASEAN and other parts of Asia, focusing on Malaysia and more briefly Cambodia. He proposed comparisons focusing on why and when independent director requirements are introduced, how this happens, what they are, and where they actually or potentially have impacts. Dr Nottage noted that Malaysia presents interesting data on independent directors given its peculiar history. Amid and after the Asian financial crisis in 1997, the World Bank and IMF encouraged (without requiring) changes and new corporate governance regulations in Malaysia. Notably, Malaysia was an early leader calling for independent directors (implementing requirements before Australia), but commentators have wondered wonders if this was ‘window dressing’ to lure back foreign investors (and regain foreign investors who had fled after the financial crisis). While they may have tried to introduce independent director requirements, it is critical to consider that there are always problems with legal transplants. Malaysia developed (like Thailand[1]) a three-tiered system of mandatory listing rules, ‘comply or explain’ Corporate Governance Code higher standards, and even higher independent director requirements that listed companies can voluntary disclose (but for which they do not need to explain non-compliance). A particular innovation – somewhat paralleling Indian corporate law reforms in 2013 – is is to require a two-tier vote (including a majority of the minority) for directors serving more than 12 years.

By contrast, Cambodia has a much newer and smaller sharemarket, with a less well-resourced regulator, so relies just on mandatory minimum standards. Those exclude from independent directors any individuals serving in competing firms, as in Thailand, perhaps reflecting the weakness of competition law and enforcement.[2] It will be interesting to observe how the country changes and independent director requirements start to be tightened in an effort to make them more functional. Following Dr Nottage, Dr Dube’s discussion largely focused on the role of independent directors in contemporary India. Dr Dube posed interesting questions – such as whether Indian corporate governance needs to be ‘Indianised’ – and explored the emergence of diverse laws in tandem with growing conceptualisations of independent directors in the Indian context. Dr Dube seemed to use a very interesting word – calibrating – to define continuity and change in this area in India in recent years. Dr Dube discussed the mandatory appointment of women independent directors; declaration of independence; auditing independence; the theory that independent directors played significant roles in raising market size, profitability, and sustainability; and evidence-based research finding a positive correlation between influences of independent directors and companies’ policies on health, safety, and environmental audits. Dr Dube noted the Tata Group Supreme Court case in 2016 (regarding the removal of then chairman Cyrus Mistry from office and later the company’s board) and implications (i.e., normalising independent directors in this context?).

Later, Dr Hargovan and Dr Chen posed as commenters and critically appraised Dr Nottage and Dr Dube. Dr Chen particularly analysed the concept of novel law on independent directors as window dressing to attract foreign investment, whether independent directors are supposed to serve as managers or a check against managers, tensions in boardrooms, incumbent directors refusing independent directors access to certain corporate data in Taiwan, seemingly inevitable conflicts between majority and minority shareholders, and implications of declaring independence (i.e., is it just a declaration?). Dr Hargovan referred to minority interests in family-dominated companies in Asia, independence from whom and for what (definitional issues), the perils of the legal transplant, optimal board composition (taking into account local conditions and cultures), characteristics of Asian companies (tangential to varieties of capitalism), the Kotak Committee Report in India (2017), and indicia of independence (interestingly similar between say Australia and India). Dr Hargovan noted that listed companies in Asia are more likely to be controlled by promoters than in Australia, where ownership is typically more diffused and the participation of institutional investors in corporate ownership follows a different pattern. Dr Hargovan closed by noting that the Anglo-Australian model is not guaranteed to be successfully transplanted to Asian countries; a lot depends on the economy and other factors, as illustrated by his recent article on Indian developments.[3]

Dr Nottage and Dr Dube closed with a few short words in response, although time was limited. To view the recording and for further Contemporary Asia International Forum Series events, please contact Dr Edith I Tzu Su at edithsu@nchu.edu.tw.

***

Joseph Black is a Juris Doctor student at the University of Sydney and anticipates commencing his Masters of International Law program from February 2022. Joseph is an intern with the CAPLUS and is interested in Japanese Law, Chinese Law, Indonesian Law, East Asian Studies, and other fields.


[1] Nottage, Luke R., Independent Directors and Corporate Governance in Thailand: A New Frontier (May 13, 2020). Journal of Transnational Law and Policy, 31 (Forthcoming, early 2022), Sydney Law School Research Paper No. 20/26, Available at SSRN: https://ssrn.com/abstract=3599705

[2] Nottage, Luke R., Fledgling Corporate Governance and Independent Directors in Cambodia’s Securities Market (November 14, 2019). Australian Journal of Corporate Law, 35, 2020, pp. 208-234, Sydney Law School Research Paper No. 19/60, Available at SSRN: https://ssrn.com/abstract=3459361

[3] Hanrahan P; Hargovan A, 2020, ‘Legislating the concept of the independent company director: Recent Indian reforms seen through Australian eyes’, Oxford University Commonwealth Law Journal, vol. 20, pp. 86 – 114, http://dx.doi.org/10.1080/14729342.2020.1773018

Japanese and Asia-Pacific Dispute Resolution events over October 2021

Over this month I am pleased to contribute to three events regarding Asia-Pacific arbitration and dispute resolution. On 1 October, I am moderating a session on International Commercial Arbitration in Japan and Germany, at the comparative ADR conference hosted by Institute of Japanese Law at the FernUniversität in Hagen to commemorate the 30th anniversary of its online courses in Japanese law. The speakers are well-known lawyers Ms Yoshimi Ohara (Nagashima Ohno & Tsumematsu) and Dr Christian Strasser (HEUKING KÜHN LÜER WOJTEK). Other sessions compare investment treaty arbitration as well as mediation.

On 20 October I present two classes in a new postgraduate law course on international commercial arbitration developed for the University of Chile by Santiago-based lawyer and former USydney LLM student Ricardo Vasquez Urra, which we hope will be offered annually. This too draws on my recently published book on international commercial and investor-state arbitration, and parallels my co-teaching (with barrister Dr Anna Kirk) the LLM course on international commercial arbitration at the University of Auckland late last year and in 2022.

On 2 October, I present the module on consumer redress and access to justice for a new postgraduate intensive course on consumer protection developed by the University of Malaya. I highlight law and policy developments mostly by comparing Australia, Japan and Southeast Asia, building on books including ASEAN Consumer Law Cooperation and Harmonisation (CUP 2019) and Contract Law in Japan (Wolters Kluwer 2019, 2nd ed 2022), as well as other recent publications including Studies in the Contract Laws of Asia (especially Volume III, all reviewed here for the Journal of Japanese Law). We explore some law and practice around courts and tribunals, Ombudsman and related arbitration-like processes, mediation, and other processes for consumer redress.

P.S. On 26 October I also present on “Corporate Governance and Independent Directors in Southeast Asia” (focusing on Thailand and somewhat Malaysia) for a webinar on the Role of Independent Directors in Contemporary Asia, part of the Contemporary Asia International Forum Series 2021 at National (National Chung Hsing University) hosted by Professor I-Tzu (Edith) Su.

P.P.S. This marks the 250th posting on this Japanese Law and the Asia-Pacific blog, over more than a decade. Many thanks to occasional guest bloggers and all readers!

Studies in the Contract Laws of Asia (Volumes I-III of VI)

My review essay [longer manuscript here on SSRN, shorter version forthcoming in Journal of Japanese Law (end-2021)] assesses the detailed, authoritative and thought-provoking first three of six proposed volumes in the series on “Studies in the Contract Laws of Asia” published by Oxford University Press. Lead-edited by Mindy Chen-Wishart, these excellent volumes span remedies for breach (2016), formation of contract and third-party beneficiaries (2018), and contents of contracts and unfair terms (2020, thus extending to an important area of consumer law). The respective editors argue quite compellingly for significant functional convergence even among Asian legal systems from quite divergent legal traditions. However, such convergence arguably becomes less obvious especially by the third volume. The functional analysis also focuses primarily on what decisions would be rendered by courts in stylised fact scenarios rather than whether and how such outcomes are reflected in contracting practices or law reform processes. Closer examination of these aspects may make future volumes even more valuable for researchers, practitioners and policy-makers.

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]

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.

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)

Improving the Effectiveness of the Consumer Product Safety System: Australian Law Reform in Asia-Pacific Context

[This is the original draft for a posting that was significantly revised and published under a different title on 29 October 2020 by The Conversation, prompting also interviews/podcasts with ABC National Radio “Life Matters” on 5 November 2020 and “Counterpoint” on 14 December 2020. This work is related to my ongoing ARC-funded joint research project DP170103136 and a JCP article published earlier this year (manuscript on SSRN.com here). A version will be presented and then discussed in the 1 December 2020 webinar for the International Association of Consumer Law (pre-recording available here) and the Consumer Law Roundtable hosted this year by QUT on 3 December. (Last updated: 1 December 2020.)]

The COVID-19 pandemic has heightened our awareness of safety risks, but also the socio-economic costs needed to reduce them. Public health interventions can also collide with human rights and constitutional principles, and undermine state capacity. Australia’s policy-makers and regulators are still facing many difficult choices to manage this new disease.

In consumer law, they and peak NGOs like Choice have also been busy grappling with a range of pandemic-related issues. These range from hand sanitiser quality through to refunds for airfares and other travel services. Nonetheless, hopefully policy-makers can now get back to some unfinished business, as we learn to live with COVID-19 while praying for a vaccine or cure.

In October 2019 the Treasury released its Consultation Regulatory Impact Statement (RIS) entitled “Improving the Effectiveness of the Consumer Product Safety System”. This was part of a suite of reform initiatives agreed after the 2016-7 review of the Australian Consumer Law (ACL), which re-harmonised consumer rights and regulatory powers nationally from 2011.

The review’s Final Report and now the RIS considered adding to the ACL an EU-style “general safety provision”. European countries (such as the UK in 1987, then the EU from 1992), as well as Hong Kong, Macau, Malaysia (1999), Canada (2010) and Singapore (2011, partially), have introduced such a GSP. It was discussed in several earlier government inquiries, notably by the Productivity Commission in 2006 and 2008, but the Commission concluded that the ACL should try some other measures first. A GSP would require manufacturers and importers to ensure that they only supply safe consumer products, otherwise risk public law sanctions from regulators.

Choice found that many Australians wrongly assume we already have this requirement. Yet the ACL currently only allows mandatory safety standards to be set pro-actively for specific types of general consumer products (currently around 40, many involving higher-risk children’s products). These specific standards take a long time to develop, usually only after serious injuries or deaths particularly within Australia. A recent example is renewed efforts to introduce a mandatory standard around button batteries, after a third child died in July and the AFL withdrew thousands of bracelets in October 2020. Regulators can also issue bans (around 20) for products found unsafe, but this is an even more reactive response.

Also only after harm arises, manufacturers can be indirectly incentivised to supply safe products by harmed consumers potentially bringing strict liability compensation claims. But such ACL product liability claims, requiring individuals to prove a “safety defect”, are becoming proportionately fewer. Even large class action law firms prefer focusing resources on more straightforward and large-scale claims by shareholders against listed companies for misleading conduct.

The Treasury’s draft RIS invited public comment on various reform options and three perceived problems with Australia’s consumer product safety system. One problem was misunderstanding about the current ACL regime. A second was its largely reactive nature, impacting on regulatory interventions and supplier behaviour. A third was considerable harm from unsafe consumer products. The ACCC identified 780 deaths and 52000 injuries annually. It also estimated at least a $4.5 billion annual economic cost, assuming around a $200,000 “value of a statistical life year” for premature deaths and disability. There were also costs of $0.5 billion in direct hospital costs for governments, and further costs associated with minor injuries and consequential property loss. (These seem conservative estimates, especially as the US consumer safety regulator recently US$1 trillion costs annually for that country – although the methodology and assumptions for that estimate are not set out in the UNCTAD report.)

My own Submission and a related peer-reviewed article added comparative empirical data in support of a GSP. First, the OECD Global Recalls portal shows that Australia reported higher per capita voluntary recalls over 2017-9 than Korea, the UK, Japan and the USA. Australia reported a rate similar to Canada, at least on the OECD data, but Canada’s legislation has a more expansive duty on suppliers to report product accidents to regulators compared to that added to the ACL. A large proportion of our recalls involve child products, mostly from China.

[Table 1: Comparing Australia’s Recalls (2017-9)]

Secondly, annual recalls have been growing in Australia, as pointed out by Dr Catherine Niven et al (co-researchers for our ARC-funded project comparing child product safety) and various submissions by Choice. The uptick is noticeable from around 2012, tracking burgeoning e-commerce and more importers dealing with more manufacturers abroad. We can anticipate more more consumer product safety problems due to further online sales during the pandemic, and the ACCC issued warnings in April 2020. So far this year, though, annual recalls are down, according to the around 240 by end-October (excluding automobile recalls), compared to around 400 over all of 2019. This drop is likely to be temporary and caused by: (a) pandemic-related recession causing less consumer spending, (b) less time and energy for consumers to complain about unsafe products, (c) businesses struggling with finances and staff so not checking products and conducting or reporting recalls as much, and (d) less regulatory capacity to sweep bricks-and-mortar shops for unsafe products or monitor online platforms (except perhaps the larger ones).

[Figure 1: Australia’s Recalls (1998-2019)]

Perhaps for similar reasons, the Canadian government website shows a drop in recalls reported there this year too: about 130 by end-October compared to 251 over 2019. That website also curiously records fewer recalls annually for “consumer products” (excluding vehicles, foods and healthcare products) than reported on the OECD portal, suggesting Canada’s recall rate per capita may instead be significantly lower than Australia’s. Importantly, it shows a significant drop in annual recalls from 2009 (306) and 2010 (299) to 2011 (258) and 2012 (236), followed by annual recalls averaging around 250 consistently from 2013-2019. The GSP introduced by the Canada Product Safety Act 2010 therefore seems to have had a positive impact, shifting supplier mindsets towards adopting a more pro-active approach including better safety assessments before putting goods onto the market. Singapore also reported a drop in unsafe children’s products found there the year after it introduced a form of GSP through 2011 Regulations.

In further contrast to Australia, the USA reported significantly fewer recalls following the introduction of third-party conformity assessment for toy exporters after problems emerged particularly with China-sourced products around 2008. Dr Niven et al further note that Australian recall notices do not need to include some significant information, eg regarding (even de-identified) injuries. Many Australian recalls of child products also involve breaches of the mandatory standards that have actually been set. (For more details, see her PhD thesis now available here.)

Our regulators could try to sanction local suppliers more for such breaches. But introducing a broader GSP would encourage a “paradigm shift” needed among Australian firms. As discussed in my article, this ACL reform could complemented (but not replaced) by some of the other RIS options, and/or a “product safety substantiation notice” power (mirroring ACL s219, allowing regulators to require suppliers to substantiate claims or misrepresentations that might be misleading).

Introducing a GSP would make Australian suppliers think more carefully about (and document) safety assessments before putting consumer products on the market. This is more efficient and safer than releasing products and then trying to recall them after problems start to be reported, hoping not too many (more) consumers get harmed. It would also encourage Australian firms to “trade up”, like counterparts overseas, to the standards expected in many of our trading partners.

[Luke Nottage receives funding from the Australian Research Council: DP170103136, “Evaluating consumer product regulatory responses to improve child safety”. He provides occasional pro bono advice to Choice regarding consumer law and policy reform, and acknowledges assistance from them in compiling from government recalls data what is reproduced here as Figure 1.]

UNCCA conference (video) presentation: “Australia’s investment treaties and reviews”

Written by: Prof Luke Nottage & Ana Ubilava

[This posting and linked video presentation, reproduced from Erga Omnes, relates also to my book in press with Elgar comparing international arbitration in Australia and Japan in regional and global contexts.]

The UNCITRAL Coordination Committee for Australia (UNCCA) and the Commercial Law Association (CLA) is holding an online seminar on Monday 26 October 2020 partly to celebrate the fortieth anniversary on the CISG (UN Convention on Contracts for the International Sale of Goods). The live, interactive seminar will be supplemented by a full conference package including pre-recorded presentations. A longer (30-minute) version of a pre-recording by UNCCA Fellow Dr Luke Nottage (Professor of Comparative and Transnational Business Law) and Ana Ubilava (PhD student at Sydney Law School and ANJeL Executive Coordinator) can be viewed here. Our presentation is entitled “Australia’s recent investment treaty ratifications and reviews: The UN Transparency Convention and investor-state mediation”. It is based on Ana’s recent postings on investor-state mediation (her PhD thesis topic) for the Kluwer Mediation Blog (reproduced here) and for the Kluwer Arbitration Blog with Luke and Prof James Claxton, as well as her lead-authored chapter with Luke for his co-edited book on Asia-Pacific international business dispute resolution due out from Kluwer by end-2020:

Ubilava, Ana and Nottage, Luke R., Novel and Noteworthy Aspects of Australia’s Recent Investment Agreements and ISDS Policy: The CPTPP, Hong Kong, Indonesia and Mauritius Transparency Treaties (March 4, 2020). in Nottage, Luke; Ali, Shahla; Jetin, Bruno; Teramura, Nobumichi (eds), “New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution”, Wolters Kluwer, (Forthcoming) , Sydney Law School Research Paper No. 20/12, Available at SSRN: https://ssrn.com/abstract=3548358 or http://dx.doi.org/10.2139/ssrn.3548358

Our presentation updates for recent developments including DFAT’s public consultation to review Australia’s remaining BITs, with Luke’s Submission here and a related thought-provoking Clayton Utz / University of Sydney International Arbitration Lecture this year by Prof Zachary Douglas; but a summary of our original chapter manuscript is as follows.

Abstract: Investment treaties, and especially investor-state dispute settlement (ISDS) provisions, became a political hot potato from around 2011 when Philip Morris brought the first-ever ISDS claim against Australia under an old bilateral investment treaty (BIT) with Hong Kong. A Labor-Greens Government declared that it would no longer agree to ISDS provisions in future treaties, but when a centre-right Coalition Government regained power from 2013 it reverted to concluding treaties containing ISDS clauses on a case-by-case assessment. Australia therefore agreed to ISDS in FTAs with Korea and China, but not bilaterally with Japan. However ISDS-backed provisions apply between Australia and Japan since the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) can into force between them (and five other Asia-Pacific nations so far) from January 2019. Yet the Australian parliament engaged in robust debate about ratification of the CPTPP, with Labor Opposition (and Greens) parliamentarians continuing to voice concerns over ISDS provisions, despite the Philip Morris claim against Australia’s tobacco plain packaging having been rejected on jurisdictional grounds in 2015.

This paper examines how (US-style) CPTPP drafting compares with two important recent investment agreements subsequently signed by Australia over 2019, namely with Indonesia as part of a wider free trade agreement (IA-CEPA), and with Hong Kong (AHKIA, alongside a bilateral FTA covering non-investment matters). AHKIA came into force from 17 January 2020, while IA-CEPA has been ratified by Australia but not yet by Indonesia. IA-CEPA adds a provision unique in the universe of over 3000 investment agreements world-wide, probably proposed by the Indonesian side: a compulsory mediation step prior to arbitration, if the host state requests mediation after the foreign investor initiates ISDS. The paper also highlights other features of both treaties that may help reduce delays and hence costs in ISDS. The paper summarises empirical data about delays and costs, as well as transparency around ISDS as another growing public concern, including some of our own empirical data provided as evidence to an Australian parliamentary inquiry into ratifying the CPTPP.

We also examine the 2019 parliamentary inquiry that agreed with the submission that Australia should ratify the Mauritius (“UN ISDS”) Convention, thereby retrofitting extensive transparency provisions on pre-2014 treaties between Australia and other states that might also accede to that framework Convention. Even if Mauritius Convention ratifications proliferate, however, it will not retrofit extra transparency provisions to treaties concluded even after 1 April 2014 even among those states (say between Australia and Indonesia, where the investor chooses the ICSID Rules rather than UNCITRAL Rules option for arbitration). Accordingly, states ratifying the Mauritius Convention will still need to agree bilaterally to expand any still-limited transparency provisions in such post-2014 treaties, which is quite inefficient compared to a multilateral solution. Nonetheless, we conclude from these new developments that Australia is now better placed to play a more active role in guiding the future path of international investment treaty-making multilaterally and especially in the Asia-Pacific region.