Sydney Law School students in Asia: (2) Japan

As well as semester-length exchange opportunities, such as those described by Ganesh Vaheisvaran (presently at Yonsei University in Korea), Sydney Law School has already started to meet the challenge of ‘Australia in the Asian Century‘ by developing short-term offshore courses in various Asian countries.
Jenny Han, a final-year LLB student with a BA (Hons) in Japanese Studies, first reports below on two experiences in Japan. The Kyoto/Tokyo Seminars in Japanese Law are offered for credit to LLB/JD and Masters students over 10 days every February, to Japanese, Australian and other international students. Participation in the INC negotiation and arbitration competition in Tokyo usually attracts course credit (within the ‘International Moot’ LLB/JD unit), although Sydney Law School is moving towards fielding a team every two years (recommencing in the December 2015 moot). We are very grateful for financial supporters of these opportunities for closer engagement with Japan, especially Mr Akira Kawamura (LLM 1979, former President of the International Bar Association) and Mitsui Matsushima Australia Pty Ltd.
Glenn Kembrey then adds some remarks on his student exchange at Kobe University. He enjoyed it so much that he extended his stay beyond one semester (needed to complete his USydney LLB degree), studying in Kobe for another semester to hone his skills in comparative law.

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Sydney Law School students in Asia: (1) Korea

The Australian government is slowly following up on the agenda set out in last year’s ‘Australia in the Asian Century’ White Paper. An Implementation Plan has now been announced, along with an expanded Strategic Advisory Board, and public Submissions are sought on follow-up individual country strategies (by 31 May) for Japan, China, Indonesia, India and South Korea.
Of particular interest for Australian universities and their students, on 6 April the first round of applications opened for ‘AsiaBound’ study – with a deadline of 20 May 2013. The government had already announced on 31 October 2012, albeit in broad terms, the $37 million AsiaBound Grants Program:

AsiaBound provides funding in the form of $2000 or $5000 grants for around 3600 Australian students each year to participate in a study experience in Asia. Students are able to undertake short-term mobility for a variety of experiences including practicums, clinical placements, research trips or volunteer projects for up to 6 months. Students are also able to undertake semester based experiences for one or two semesters. In addition to study grants, AsiaBound offers grants of $1000 for preparatory Asian language study that can be undertaken prior to or concurrently with an approved mobility project.

Program Aims:
Increase the overall number of Australian students with a first-hand study experience of Asia through funding for short-term study and language grants as well as increased OS-HELP loans
Encourage more students to become Asia-literate by supporting institutions to diversify their mobility offerings in Asia
Enhance the skills and expertise of Australians through access to a variety of study opportunities in Asia
Support increased Asian language competency of Australian students together with mobility experiences
Increase collaboration and partnerships between Australian and Asian higher education and vocational institutions.

Hopefully this program will further encourage Sydney Law School student engagement with the fascinating world of law in Asia. Already they enjoy opportunities for short-term offshore courses in Japan (every February), China, Malaysia/Indonesia and Nepal. Our law students also have also competed successfully since 2005, as part of ‘Team Australia’ with ANU students, in the Intercollegiate Negotiation and Arbitration competition (INC) held in Tokyo each December. There is also growing interest in semester-length offshore exchanges to leading law schools in Asia, thanks to efforts to expand university- and faculty-level student exchange agreements (traditionally focused more on Europe and North America) as well as the growing numbers of law courses offered in English by partner institutions in the region. The government’s new ‘AsiaBound’ funding should further increase the attractiveness of these opportunities.
Already, our law students are taking the plunge. An example is Ganesh Vaheisvaran, who mooted at the INC in Tokyo (in the English-language division in 2011, and in the Japanese-language division last year). He is now spending a semester at Yonsei University in Seoul, thanks to a university-level student exchange agreement reinforced by a new faculty-level MOU. As you can read from the report below, Ganesh is obviously enjoying his Korean law and language studies – as well as some interesting extra-curricular activities!

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Negotiating and Applying Investor-State Arbitration Provisions in Free Trade Agreements and Investment Treaties: Australia, Japan and the Asia-Pacific

My recent Sydney Law School Research Paper No. 12/84, forthcoming in a special issue 119 (9&10) Hogaku Shimpo (Chuo University) for Professor Satoru Osanai, is an edited and updated collection of postings over 2012 on this ‘Japanese Law and the Asia-Pacific’ blog (and/or the East Asia Forum blog) dealing with investor-state arbitration (ISA) and other forms of investor-state dispute settlement.
The topic has become particularly controversial for Australia, given its ongoing Free Trade Agreement negotiations with Japan. Japan is also considering joining negotiations underway among Australia and 10 other states (including the US) for an expanded Trans-Pacific Partnership Agreement, and both are also interested in the more recent ‘Regional Comprehensive Economic Partnership‘ (RCEP) initiative (ASEAN+6). Both Japan and Australia have almost always included ISA protections in their investment treaties, but Australia omitted them in investment treaties with the USA and New Zealand, and recently declared that it will no longer accept ISA in future treaties – even with countries with less developed legal systems and economies.

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Open Letter – Assessing Treaty-based Investor-State Dispute Settlement

Some are concerned about treaty-based Investor-State Dispute Settlement (ISDS), especially binding Investor-State Arbitration procedures in investment treaties and Free Trade Agreements. One response includes public calls for states to eschew such procedures completely in future treaties, for example in the expanded Trans-Pacific Partnership Agreement presently under negotiation. This approach would essentially leave foreign investors to approach local courts if host states illegally interfere with their investments, or to encourage their home states to activate an inter-state dispute resolution process, or to try to negotiate individualised arbitration agreements with host states.
An alternative approach is to identify and address more specific concerns with treaty-based ISDS. An example is the scoping paper and Public Consultation on ISDS generated by the Organisation for Economic Cooperation and Development, over 16 May – 23 July.
As a constructive contribution to this debate, we created an online form asking for views on whether ISDS should be left as is, abandoned completely, or adapted in various listed ways. As explained below, no respondents favoured eschewing ISDS completely. Yet that position represents the policy shift announced by Australia in the “Gillard Government Trade Policy Statement” (April 2011), resulting in ISDS being omitted from the Australia-Malaysia FTA (May 2012) but difficulties in negotiating other bilateral treaties (with Korea, and Japan) and the TPPA. Implications and other topics related to the TPPA negotiations will be discussed at a Roundtable in Canberra on 8 August, hosted by the Crawford School of Public Policy (ANU College of Asia and the Pacific).

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TPP negotiations and the IBA’s Draft Rules on Investor-State Mediation

As NZ lawyer Daniel Kalderimis points out recently, concerns about treaty-based investor-state arbitration (ISA) have been:

stirred up by the release of an “Open Letter from Lawyers to the Negotiators of the Trans-Pacific Partnership Urging the Rejection of Investor-State Dispute Settlement” on 8 May 2012. The letter is backed by well-meaning, and several well-known, signatories; most of whom are not especially well-informed about investor-state arbitration. The fact of the letter is welcome, as the issues are important. But the letter itself contains several overstatements and does not make a balanced contribution to the debate.

Another oddity about the “Open Letter” is that it refers generically to “Investor-State Dispute Settlement” (ISDS) and ends by calling on “all governments engaged in the TPP [Trans-Pacific Partnership FTA] negotiations to follow Australia’s example by rejecting the Investor-State dispute mechanism and reasserting the integrity of our domestic legal processes”. ISDS incorporates both ISA (where the parties agree to be bound by the arbitrators’ decision) and investor-state mediation (“ISM”) or conciliation procedures (where the parties agree to negotiate a settlement but are not obliged to accept any proposals made by the third-party neutral mediator). At least the rest of the “Open Letter” indicates that the primary objection is to binding ISA.
By contrast, the “Gillard Government Trade Policy Statement” (April 2011) simply eschews ISDS in Australia’s future treaties, including the TPP. Perhaps the Statement meant only ISA, which allows greater inroads into host state sovereignty, given that overall it draws on the Productivity Commission’s recommendations from a 2010 Trade Policy Review report. But, by seemingly eschewing all forms of ISA, the Statement seems to go beyond the Commission’s recommendation on ISA itself.
Hopefully the Australian government, other states involved in FTA negotiations (such as the TPP) and those who wish to improve the ISA system (such as myself) or abandon it altogether (as do some signatories to the Open Letter) will not simply transpose their objections over to ISM too. There is significant scope for mediating investor-state disputes, and indeed the Draft Rules on ISM published recently by the International Bar Association (IBA) are a valuable guide to conducting mediation more effectively. Below I set out some preliminary analysis of those Draft Rules, prepared for the Law Council of Australia but representing my own personal views – particularly regarding the scope for arbitrators to adopt them as a means of settling ISA claims earlier and more effectively (ie ‘Arb-Med‘). A fully-footnoted version of my views is available on request, and I encourage feedback.

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“Asian Investment and Finance Law” – Special issue 34(1) Sydney Law Review (March 2012)

Professor Vivienne Bath and myself are guest editors and authors of two articles for this special issue, the first dedicated the Sydney Law Review to developments in or across Asian legal systems. The issue also includes an article on Indonesian law co-authored by Dr Simon Butt, presently serving as Director of the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS).
The special issue contains the following nine contributions, with full-text PDF versions freely downloadable from the Sydney Law Review webpage:

Introduction: Asian Investment and Finance Law
Vivienne Bath and Luke Nottage
Articles:
Corporate Rescue in Asia – Trends and Challenges
Andrew Godwin
Lessons from Product Safety Regulation for Reforming Consumer Credit Markets in Japan and Beyond?
Luke Nottage and Souichirou Kozuka
Embracing Sharia-Compliant Products through Regulatory Amendment to Achieve Parity of Treatment
Kerrie Sadiq and Ann Black
Between Piety and Prudence: State Syariah and the Regulation of Islamic Banking in Indonesia
Tim Lindsey
Reining in Regional Governments? Local Taxes and Investment in Decentralised Indonesia
Simon Butt and Nicholas Parsons
Foreign Investment, the National Interest and National Security – Foreign Direct Investment in Australia and China
Vivienne Bath
Responding to Industrial Unrest in China: Prospects for Strengthening the Role of Collective Bargaining
Sarah Biddulph
The Influence of the WTO over China’s Intellectual Property Regime
Natalie P Stoianoff
Book Review: The Derivative Action in Asia: A Comparative and Functional Approach [edited by Harald Baum, Dan Puchniak and Michael Ewing-Chow, Cambridge University Press, 2012]
Luke Nottage and Fady Aoun

Vivienne Bath and I also reproduce below the text of our Introduction (omitting footnote references). It outlines and commemorates the long and strong tradition of engagement with Asian legal systems on the part of Sydney Law School, CAPLUS and the Australian Network for Japanese Law (ANJeL).

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Divestment of foreign mining interests in Indonesia meets the ‘Gillard Government Trade Policy Statement’

By: Simon Butt and Luke Nottage (University of Sydney Law School)
[with a shorter version at http://www.eastasiaforum.org/]
Professor Chris Findlay recently wrote on the East Asia Forum about ‘Australia’s FDI challenges in the Asian Century’, highlighting problems reported recently by ANZ Bank and Qantas in the region. His proposals including ‘innovation in negotiating modalities’, including a possible new plurilateral agreement in the WTO that would cover all investments (not just in some services sectors). That’s a nice idea, but it’s proving hard enough to complete the current round of Doha Round negotiations. In light also of recent problems in Indonesia, the Australian government should meanwhile reconsider its abrupt policy shift last April regarding an important protection found in most of its bilateral and regional Free Trade Agreements (FTAs) and bilateral investment agreements (BITs): investor-state arbitration (ISA).

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ANJeL Anniversary Conference debrief – commemorating and comparing the 11 March disasters in Japan

Like so many in Australia and worldwide, we remember sadly today over 19,000 confirmed dead or still missing from Japan’s triple disasters a year ago. Our thoughts and prayers also go out to the many more who collectively have lost their lives from natural disasters in other parts of the Asia-Pacific – including the 2004 tsunami in Indonesia and other countries facing the Indian Ocean, the 2008 earthquake in Sichuan, the Christchurch earthquake and the Queensland floods – just over a year ago, too.

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ANJeL Anniversary Conference (Asia-Pacific Disaster Prevention and Management): Opening Remarks (for 1 March)

On behalf of the University of Sydney, please let me welcome you all to this international conference, on ‘Socio-legal norms in preventing and managing disasters in Japan: Asia-Pacific and interdisciplinary perspectives’, by acknowledging the many people and organizations that have made it possible. I thank especially our many speakers, session chairs and other participants here today – including Consul-General Kohara (who will soon add a few words to open the conference) and several others who will be joining us later (by Skype from Japan and the US, as well as the Federal Minister for Emergency Services and Adelaide University’s new Pro Vice-Chancellor (Int’l) Professor Kent Anderson, who will give closing speeches tomorrow).
I also gratefully acknowledge our main sponsor, the Japan Foundation Sydney, which last year requested applications for joint research events on this important topic; and the other participating institutions – the Law Faculty of Tohoku University (one of USydney’s longstanding partners in Japan) and various USydney-related organisations that have come together to provide matching funding: the Law School and its Centre for Asian and Pacific Law (CAPLUS), the Australian Network for Japanese Law (ANJeL, centred on the Law Schools at USydney, ANU and Bond University), the new China Studies Centre, the Department of Japanese Studies, and the Office of the Deputy Vice-Chancellor (Int’l).
May I also single out our fine administrative support staff: Dale Nouwens (Law School Events Coordinator) and Melanie Trezise (ANJeL Executive Coordinator). I truly appreciate their help, especially as I will need to step outside this conference occasionally over the next few days. As the relevant Associate Dean, I also need to keep an eye on the Orientation Program for new International Students in the Law School, which will be taking place in parallel in the lecture theatre across the corridor.

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Anniversary Conference, 1-2 March 2012: “Socio-legal Norms in Preventing and Managing Disasters in Japan: Asia-Pacific and Interdisciplinary Perspectives”

The “3-11 triple disasters” that afflicted Japan on 11 March 2011 have highlighted broader regulatory issues facing countries particularly in the Asia-Pacific region, including Japan’s FTA negotiation program. A few months after “3-11”, the Japan Foundation established a special grant program calling for collaborative research conferences on disaster prevention and management – seeking applications by end-September, with decisions to be reached by end-October and conferences to be concluded by March 2012. An application by a consortium led by the University of Sydney Law School was successful, allowing a major international conference to take place in the new Sydney Law School premises over Friday 1 March and Saturday 2 March 2012. Other sponsors of this event are the University’s Japanese Studies Department and the new China Studies Centre, the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS), the Australian Network for Japanese Law (ANJeL), and the Law Faculty of Tohoku University (one of the University of Sydney’s longstanding partner institutions).
The conference will commemorate the first anniversary of the 3-11 disasters, and also represents ANJeL’s tenth international conference on diverse aspects of Japanese Law. It will examine regulatory issues from a variety of social science perspectives, focusing on Japan but comparing Australia (of course, especially in the wake of January’s devastating floods in Queensland), New Zealand (especially issues highlighted by the Christchurch earthquake), Indonesia (the Aceh tsunami), China and the USA (especially earthquakes and nuclear power issues).
Please “save the date”, and keep an eye on the ANJeL website and the Sydney Law School “events” website for forthcoming registration and other details.

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