Category: Australia-Japan Relations

[Vale Richard Nottage] Guest blog: “The Tokyo International Military Tribunal: A Reappraisal”

[Editor’s updated note: My father Richard Nottage, former Secretary of Foreign Affairs and Trade of New Zealand (1991-9) as well as ambassador to Japan, Indonesia and Geneva (UN and WTO), died peacefully in Wellington on 11 October 2025, aged 85. After retirement in 2000 he was Deputy Chair of the Asia New Zealand Foundation and Inaugural Chair of the National Archives Council, as he was keenly interested in history especially in Asia. A full obituary is at https://www.legacy.com/nz/obituaries/thepost-nz/name/richard-nottage-obituary?id=59877600 and a video of Richard discussing the creation of the WTO is at https://www.youtube.com/watch?v=Rbu5Pvjs8SM. I am updating a blog posting below from 2011 in his memory, reproducing from https://www.nzlii.org/nz/journals/NZYbkIntLaw/2010/18.htmla book review we co-authored around then.]

[Original editor’s note: Below is an overview of an intriguing book with this self-explanatory title, reviewed by my colleague specialising in public international law, A/Prof Ben Saul; and a former Research Assistant at our Sydney Centre for International Law, Naomi Hart. Their Review was published in [2010] Australian International Law Journal 295-9. The full PDF version, including footnote references, is downloadable here.

My own Review of this book co-authored by Professor Neil Boister (University of Canterbury) and Robert Cryer (University of Birmingham), appeared in [2010] New Zealand Yearbook of International Law XXX. That Review [also reproduced below] is written with my father, Richard Nottage, who in the 1960s undertook post-graduate research into pre-WW2 Sino-Japanese political and economic history using primarily the full sets of Tokyo War Crimes Trial documentation donated to the University of Canterbury (by the New Zealand Judge on the tribunal) and to Oxford University. A shorter Review written by Richard alone, published in (November-December 2010) New Zealand International Review 27-28, is already downloadable here.]

The Tokyo International Military Tribunal: A Reappraisal

Neil Boister and Robert Cryer
[Oxford: Oxford University Press, 2008, 358pp. ISBN 978-0-19-927852-7 £63.50]

For 60 years there has been relatively little analysis in English of the International Military Tribunal for the Far East, abbreviated by the authors of this book as the “Tokyo IMT” because it conducted its war crimes trial in Tokyo over 1946-1948. This lack of attention to the Tokyo trial is true especially in comparison with its European counterpart, the Nuremberg trials over 1945-1946. There are several reasons for this, as suggested in this important new book (at pp 2 and 301). First, the extensive literature about the trial in Japanese is not well known outside Japan. Secondly, there is a degree of Euro-centrism in the scholarship on international criminal law. Thirdly, and uncomfortably for the Western powers, one Judge on the tribunal – Justice Radhabinod Pal from India – condemned atrocities by the Allies, especially the use of the atomic bomb. This dissension distinguished the Tokyo tribunal from its Nuremberg counterpart, which allocated blame exclusively to the Axis powers.

Given this lacuna in the literature on international criminal law and regarding the Tokyo IMT generally, a short explanation of the main aspects of the Tokyo War trial may assist. As helpfully outlined in chapter 1 of the book, the trial cannot be understood without some knowledge of the domestic politics and constitutional arrangements in pre-war Japan and their impact on Japan’s foreign relations from the 1920s – especially its expansion into Manchuria and China through the 1930s, Indo-China in 1941 and, after Pearl Harbor, into Malaya, Singapore, the Philippines, Indonesia and elsewhere in the Pacific. Atomic bombs were dropped on Hiroshima and Nagasaki on 6 and 9 August 1945 respectively. Russia declared war on Japan on 8 August and took over Manchuria. Japan surrendered on 15 August 1945, leading to the transformative US-led Occupation of Japan under a new Constitution.

The legal foundations for punishing Japanese aggression took on a tangible form when the leaders of the United States, China and the United Kingdom adopted the Potsdam Declaration of 26 July 1945, later adhered to by the Soviet Union.. This provided for the punishment of Japanese ‘war criminals’, but not expressly for the establishment of an international criminal tribunal, nor for the prosecution of crimes against peace. These came six months later through “a time-fractured procedure by which General MacArthur, Supreme Commander for the Allied Powers [SCAP], promulgated the Tokyo International Military Tribunal’s Charter”.. Initially by a Special Proclamation on 19 January 1946, he established the Tokyo IMT for “the trial of persons charged individually or as members of organisations or in both capacities with offences which include crimes against peace, war crimes and crimes against humanity”.

The Tribunal’s Charter provided for the constitution, powers and procedures of the Tribunal itself, based largely on the Nuremberg Charter, as explained in chapter 2 discussing the Tokyo IMT’s ‘nature and jurisdiction’. The bench consisted of eleven members nominated by the respective Allied powers: the United States, Soviet Union, the United Kingdom, China, France, the Netherlands, Canada, Australia (with Justice William Webb of the Supreme Court of Queensland serving as the Tokyo Tribunal’s President), New Zealand, India and the Philippines. A sense of the Judges’ different backgrounds emerges gradually throughout this book, but more clearly in chapter 10 reviewing “the Tokyo IMT and legal philosophy” (at pp 277-291).

Chapter 3 shows how the selection of the 28 defendants was a problematic aspect of the Tribunal’s preparatory work. Boister and Cryer’s view is that the selection was too broad, as Japanese officials were charged merely by virtue of their position without reference to the nature or extent of their individual involvement in the war effort. But it was also insufficiently broad, as many prominent Japanese military, political and industry figures – including the Emperor, as well as individuals who had engaged in biological and chemical warfare – were not charged. The indictment, drawn from the authority of the Potsdam Declaration, Japan’s Instrument of Surrender and the Tokyo IMT Charter, was not well managed and over-ambitious. It revealed the prosecution’s basic conspiracy thesis that Japan – dominated by a militaristic, racist clique – sought, along with Germany and Italy, to rule the world.

Hundreds of individual charges were laid, many duplicatory, for crimes against peace (chapter 5), murder (chapter 6) and war crimes (chapter 7). The majority of the Judges on the Tokyo IMT extended liability to individuals if they shaped or influenced a war of aggression, whereas the Nuremburg Tribunal required individuals to have controlled or directed the war. The Tokyo IMT also took an expansive approach to the count of murder, defined as killing as part of an illegal war, whereas subsequent tribunals have punished for murder only when this amounts to a war crime or crime against humanity. The authors disagree with the Tokyo IMT on both points when discussing its overall ‘legal legacy’ (pp 301-311); but they note that several of the principles it established regarding war crimes were later adopted by international tribunals, such as the liability of a commander if lack of knowledge of a situation was due to negligence. The authors also criticise several views of the Tokyo IMT on ‘general principles of liability and defences’ (chapter 8), especially the (still controversial) notion that mere conspiracy to commit crimes against peace was punishable.

Boister and Cryer support most widespread criticisms of ‘the conduct of the trial’ (chapter 4), including some apparent bias on behalf of some Judges – including President Webb. However, they note that subsequent international war crimes tribunals are “run, like the Tokyo IMT, largely on an adversarial process and also take a non-technical approach to evidence” (p 310). They also warn that experience from the Tokyo Tribunal shows that time and other pressures tend to build up in favour of loosening evidentiary rules once written witness testimony largely replaces oral evidence (p 311).

Lastly, when the Tokyo IMT concluded its deliberations in 1948, sentencing practices were undeveloped and the Tribunal had minimal guidance from its Charter (chapter 9). Of the accused, seven were sentenced to death, sixteen to life imprisonment, one to 20 years and one to seven years imprisonment. In 1958 the surviving parolees were released unconditionally.

The main aim of this book is “to provide a legal analysis of the Tribunal in the hope that it will help renew interest in the Tokyo International Military Tribunal and thus contribute to a fuller understanding of international criminal law”. It revisits “the very jaded view of the proceedings” taken in Victor’s Justice: The Tokyo War Crimes Trial1 by an influential political scientist, Richard Minear (p 1). In our view, the authors of the present work – experts in public international law from the University of Canterbury (Boister) and the University of Birmingham (Cryer) – have convincingly fulfilled their primary objective. Boister and Cryer conclude that the trial undeniably had “weaknesses in a number of areas”, but they succeed in showing that some of “its determinations of law are of continued relevance and worth” (p 2) for contemporary international tribunals and international law more generally.2

The authors also candidly note two limitations of their work, yet the book serves two corresponding and wider purposes. First, Boister and Cryer point out that they do not read or write Japanese and therefore were “unable to engage fully with that scholarship” (p 3) – although they acknowledge the great assistance provided to them by Dr Noboyuki Murai by “investigating, summarizing and discussing” aspects of that literature in Japanese.3 Similarly, the authors do not hold themselves out as scholars of Japanese law or politics. Yet their work is interesting from those disciplinary perspectives as well.

Discussing the ‘political legacy’ of the trial in chapter 11, Boister and Cryer suggest that if indeed a major purpose was to vindicate the Allied cause and condemn Japanese imperialism, then the Allied cause was not well served as “the perception was that justice was not done” (p 322). They acknowledge that some therefore have seen the trial as a political failure that contributed to resurgent nationalism, but suggest that recent literature shows how the trial was used in more complex ways within the Japanese political process. Students of Japanese politics will not be surprised at the latter perspective, as numerous other examples show how government and non-state actors within Japan often have used ‘foreign pressure’ (gaiatsu) to expand or create domestic forces (naiatsu) for achieving their own policy preferences.4

For scholars more interested in Japanese law, the work of Boister and Cryer also offers tantalising new perspectives. Discussing the “didactic function that some of the prosecuting states asserted was the reason for the trial”, they note that early evidence indicated that this was not being achieved – “the trial tended to be watched by the accuseds’ families, law students, and ‘courtroom habitués’, while it took SCAP pressure to ensure coverage in Japanese newspapers” (p 315). Yet the educational objective was not just to instruct Japanese citizens about good and bad forms of political or economic organisation. Presumably, it also aimed to reinforce a broader shift towards ‘Western’ rights-based legal order that commenced in earnest after Japan reopened fully to the world with the Meiji Restoration of 1868. A more targeted program of legal reforms was already well underway during the post-War Occupation, steered by American lawyers within SCAP, beginning with the drafting and enactment of a new Constitution in 1947 that incorporated US-style features such as judicial review of legislation and a Bill of Rights.5

That constitutional reform also continues to generate controversy among historians over the degree to which the outcome was imposed by ‘foreign pressure’, with another parallel debate about the Constitution’s contemporary significance reflected in calls for constitutional amendments.6 A major sticking point nowadays remains the ‘peace clause’ in Article 9. It provides that “the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes”; to that end, “land, sea, and air forces, as well as other war potential, will never be maintained [and] the right of belligerency of the state will not be recognized”. One wonders what reciprocal influence there might or should have been between the drafting of Article 9 and the trial then underway in the Tokyo IMT dealing with Japan’s crimes against peace.

Expansive interpretations of Article 9, resulting in Japan now having one of the largest armed forces (‘Self-Defence Forces’) in the world, began to emerge anyway from the Japanese government, some courts and commentators during the Korean War, and especially from around 1960 when the Japan- US Treaty of Mutual Security and Cooperation replaced the bilateral treaty of 1951.7 This arguably flexible approach to constitutional law interpretation had a major impact on jurists interpreting other legal norms in Japan, especially tort law and other provisions in the Civil Code, where a ‘balancing of interests’ approach to applying the law (rieki koryo-ron) became increasingly influential.8 As a whole, Japanese law remained comparatively open-textured during much of the post-War period. This may have undermined a strict version of the ‘rule of law’, although some argue that it supported community norms – both good and bad – better than in more legalistic societies such as the United States.9 Yet there has also been a strong undercurrent of more formalist or positivist approaches to law among jurists in Japan. A deluge of statutory amendments as well as large-scale reforms to the justice system over the last decade or so may favour that counter-tendency.10 Intriguingly, Boister and Cryer remind us that similar jurisprudential debates were apparent on the international law plane in Japan from the days of the Tokyo War Crimes Trial. The tension existed not only among the Judges on the tribunal, but also among the counsel. The leading American prosecutors adopted an avowedly ‘natural law’ approach, while most defence counsel – especially the Americans – responded with more formalistic arguments (pp 272-277).11

The second self-confessed limitation of the work by Boister and Cryer is that they are “lawyers, not historians” and that “the history and conduct of Japan in the run-up to and during World War II is highly controversial” (p 1). They do not enter substantively into those controversies. But the book is also valuable for those interested in this history. It draws renewed attention to a voluminous and unique body of documentation of great historical importance that sheds much light on Japan’s domestic politics during 1928-1945 and on its external relations in the Asia-Pacific region (especially with China) and globally. Speculating on the trial’s ‘historical legacy’, the authors observe that “an often overlooked aspect of the Tokyo IMT’s proceedings and their contribution to history is their record of evidence heard, rather than the judgments themselves”.. They also note the irony that “one of the things that the Tokyo IMT has frequently been criticized for, the admission of documentary evidence over live testimony, is one of the reasons its proceedings have historical value” – and indeed some present-day relevance (p 314).12

Indeed, for New Zealanders with a sense of history, the Tokyo IMT proceedings and their documentation have a particular significance. In 1962, as a Charles Upham scholar at Canterbury University, one of the present reviewers (Richard Nottage) wanted to write a thesis towards an MA (Hons) on some aspect of the Pacific War. The professor of history, Neville Phillips, suggested that the IMT papers might provide a basis for this. After the Tokyo IMT trial ended, the New Zealand nominee on the tribunal, Justice Erima Harvey Northcroft, had donated his nearly complete set of trial documents to the then Canterbury University College. In a letter of 27 January 1949 to the chairman of the Canterbury University College Council, conveying his bequest, Justice Northcroft wrote: “these [records of the trial] are not likely to be of value or interest to ordinary degree students, but may be of assistance to research students both in International Law and, more particularly, in History”. The bequest, one of the most complete sets of IMT documents in the world, contains some 380 volumes and 110,000 pages. In 1962, it was housed in several rooms of the old, then unused, Ilam homestead, which is now the University’s staff club.

The late Professor S A M Adshead, who had arrived recently from the UK to take up a lecturership in history, was assigned as thesis tutor to Richard Nottage. C W Collins, the Librarian, made the papers available and provided keys to the homestead. Adshead devoted weeks of his own time assembling the tribunal papers into an orderly form, and provided much valuable guidance and advice as Richard wrestled with a thesis entitled China and Japanese Politics 1934-39. Richard spent several months in 1962 alone in the grand old mansion, and was probably the first student or staff member to utilise this unique archive. Subsequently, in 1963-1965, he used the UK set of IMT documents while a post-graduate scholar at Oxford University, producing a thesis on the establishment of Japanese puppet governments in China (1935-1940) which was supervised by the late Professor Richard Storry. At that time little was known or written about the various ultimately unsuccessful attempts by local Japanese armies in China to establish puppet regimes there. Yet Japan’s political failure in China was a major cause of the Pacific War.

The Northcroft Collection was ‘re-discovered’ in 2005 by the manager of the Macmillan Brown Library, Jill Durney, and Jeff Palmer, the library archivist. They recognised its significance. It was inscribed recently on the Regional (Asia/Pacific) Register of UNESCO’s Memory of the World Programme, the first item from New Zealand to receive such recognition and a testament to the enormous value of the collection. It has also been identified as Canterbury University’s most urgent e-heritage project for archival scanning and full text digitisation.13 This will be of immense benefit for scholars and others in New Zealand, the Asia-Pacific region and beyond, as they seek to understand the on-going historical debates as well as the divisions and ambiguities in Japan about its culpability in the war. Fortunately the original Collection has survived the devastating earthquake that struck Christchurch on 22 February 2011.

Researchers in the history of international law should also note that there is a small selection of Tokyo IMT and related papers published in New Zealand in 1982.14 Of special interest amongst these is a paper assessing the Tokyo Tribunal dated 8 April 1949 written by the assistant to Justice Northcroft at the Tokyo trial, the late Quentin Quentin-Baxter. (He later served as a New Zealand diplomat, including a posting back to Tokyo; as professor of international and constitutional law at Victoria University of Wellington; and on the UN International Law Commission.15) Quentin-Baxter’s paper is a more succinct version of the lengthy report Justice Northcroft sent to New Zealand’s Prime Minister in March 1949, in which, amongst other things, he advocated the establishment of a permanent international criminal court. Quentin-Baxter wrote:

It is, therefore, one of the most important results achieved by setting up the Tokyo Tribunal that it conducted an historical enquiry into the actions of Japan and ascertained the proximate causes of those actions. There is set upon its findings a seal of authority and impartiality which cannot attend the work of any historian of recent events; for the Tribunal’s decision was reached upon all the available evidence and after the fullest opportunity had been afforded for the presentation of opposing views.

Readers of The Tokyo International Tribunal: A Reappraisal will be able to come to their own judgments on this particular conclusion. Overall, this meticulously well-researched, well-structured and generally well-written book certainly deserves a wide readership – not just among its primary target audience of international lawyers, but also among students of Japanese history, politics and law.

Richard Nottage CNZM; Deputy Chairman, Asia New Zealand Foundation; Chairman, Archives Council; former New Zealand Ambassador to Japan and Secretary of the Ministry of Foreign Affairs and Trade

Luke Nottage Associate Professor, Sydney Law School; Comparative and Global Law program coordinator, Sydney Centre for International Law (SCIL); Director, Centre for Asian and Pacific Law at the University of Sydney (CAPLUS);
Co-Director, Australian Network for Japanese Law (ANJeL)

This review draws partly on a shorter book review by Richard Nottage published in (November-December 2010) New Zealand International Review 27-28.

Continue reading “[Vale Richard Nottage] Guest blog: “The Tokyo International Military Tribunal: A Reappraisal””

Pursuing legal careers in Japan

[Update of 25 October 2025: the videorecording (and transcript) of this event can be found here or via the Sydney Law School youtube channel]

In this lunchtime seminar at Sydney Law School on 6 August, organised by the Australian Network for Japanese Law (ANJeL) with light lunch provided by CAPLUS, Japanese legal professionals will speak about their experiences, and discuss possible avenues to pursue a legal career in Japan.

ANJeL Visiting Judge Hiroyoshi Kimura will explain how law students become lawyers and judges in Japan.

Nagoya University Professor Tomoko Ishikawa will outline her experiences also as a judge and foreign ministry legal expert, plus student exchange opportunities and experiences

Mori Hamada & Matsumoto partner Naoki Ishikawa will explain how Australian law graduates have worked in his large law firm

ANJeL co-director Prof Luke Nottage will provide a Zoom interview of Inpex Senior Legal Counsel Joel Rheuben (USydney LLB/BA then uTokyo LLM graduate, who competed in Japanese in Tokyo’s INC negotiation and arbitration moot competition “Team Australia” that won two decades ago).

Wednesday 6 August 2025, Time: 12.45-1.45pm (Light lunch to be provided 15 minutes prior)

Venue: Boardroom, Level 4, New Law Building, Eastern Avenue, University of Sydney, Camperdown campus

Please register via: https://www.eventbrite.com.au/e/pursuing-legal-careers-in-japan-tickets-1426116636249

Redesigning Consumer Law for the E-Commerce Era: Insights from Comparing Australia and Japan

Written by: Luke Nottage (University of Sydney) and Souichirou Kozuka (Gakushuin University, ANJeL-in-Japan program co-convenor)

Leading up to Australia’s federal election due by May 2025, the Commonwealth Treasury has (re-)initiated public consultations into reforms to the Australian Consumer Law (ACL), partly responding to the growth of e-commerce especially since the COVID-19 pandemic. Two main consultations in fields outlined below, compared to regimes in Japan, highlight some intriguing features for policy debate – extending also into the wider Asia-Pacific region.

First, unlike consumer laws in most jurisdictions across Asia, the ACL has already come to apply to many business-to-business (B2B) transactions. A typical economic argument is that this levels the playing field so businesses compete transparently and consumers have more trust in the market. However, there is a risk of individual consumers cross-subsidising through higher overall prices the businesses gaining similar protections. An additional political dynamic may be that Australia has often closely-fought elections, and many small businesses pressing for the same protection as individual consumers.

Secondly, the federal consumer affairs regulator, the Australian Competition and Consumer Commission (ACCC) and State or Territory regulators also have comparatively strong enforcement powers. Thirdly, the ACL and some proposed reforms highlight whether consumer law can and should rely on generally worded standards, more specific rules, or both.

Australia’s Treasury last year renewed a consultation into whether the ACL should add further prohibitions on unfair commercial practices, to address burgeoning concerns such as ‘subscription traps’ (suppliers making it much harder to cancel subscriptions than to sign up). Such practices are not easily covered by the ACL’s prohibition on misleading conduct by any suppliers ‘in trade’ (hence also B2B, since the 1970s). Nor do they usually fall within the broadly worded prohibition on unconscionable conduct, taking advantage of particular vulnerable groups (gradually extended to B2B since the 1990s).

The latest Treasury-led proposal sought further views on adding both a general prohibition on unfair practices (for example as in the EU, but there limited to business-to-consumer or B2C transactions, ie involving an individual transacting with a supplier for a non-commercial purpose). It also discussed specific prohibitions (as with legislation recently added in Germany, the UK and the USA against subscription traps). Regulators like the ACCC would enforce such new prohibitions in both B2B and B2C situations, including through injunctions, as for unconscionable or misleading conduct and specific types of prohibited misrepresentations.

Japan’s comparable regime instead regulates only B2C transactions and has come to preference specific prohibitions. The Consumer Contracts Act 2000 allows consumers to cancel contracts arising from some types of misrepresentations, plus various very specific situations of unconscionable advantage-taking. Business associations argue that a broader general provision would be very hard to comply with.

Extra challenges for consumers arise because injunctions against suppliers’ bad advertising and practices leading into contracts can only be brought through government-certified consumer NGOs. This system was inspired by German law but Japan’s NGOs are very small and under-resourced. Further, because the Consumer Contracts Act applies only B2C, it is hard to generate sufficient momentum among claimants, and hence case law.

The Consumer Affairs Agency, when established independently in 2009, assumed jurisdiction from the Japan Fair Trade Commission (the competition regulator) only to enforce the Act against Unjustifiable Premiums and Misleading Representations that prohibits representations promoting the quality of goods or services as ‘significantly superior’ or describing trade terms as ‘significantly more advantageous’ than they actually are.  Particular bad practices are also regulated by the Designated Commercial Transactions Act (as it was renamed from the Door-to door Sales Act in 2000), for example allowing ‘cooling off’ (withdrawal rights) for consumers in high-pressure situations like door-to-door selling or buying. Besides administrative orders now issued by the Agency, criminal penalties can be imposed for not providing contracts in writing or alerting consumers to such rights.

A second major Treasury consultation in Australia from 2024 asks for further views on whether regulators should be able to issue civil fines on suppliers failing to give ACL remedies for minimum performance standards in contracts (‘consumer guarantees’, as in New Zealand and Malaysia, but extending to some B2B situations). These require goods to be of ‘acceptable quality’ and services to be provided with due care. Since 2023, Australian regulators already have such a power to fine for first-time use of unfair terms in standard-form contracts. From 2016, regulation of such terms was extended to contracts with  ‘small business’, including now some medium-sized ones.

Adding such civil pecuniary penalties was seen as more effective than relying on injunctions to stop misuse of unfair terms, and/or consumers proving they are unfair so are void. This innovation, adding public sanctions, is despite Australia gradually introducing from the 1990s a US-style ‘opt-out’ class action system. That was premised on lawyers (perhaps with third-party litigation funders, allowed since 2006) might efficiently aggregate smaller value claims (such as excessive and therefore unfair bank fees). Yet even this regime seems to have been insufficient to prevent the spread of unfair terms, including in online businesses.

Japan’s Consumer Contracts Act similarly voids a few specific types of unfair terms. It does have also a general provision voiding others where contrary to good faith (ie unreasonable, compared to general Civil Code default provisions for contracts). However, business associations are opposed to listing in the Act even a ‘grey list’ of further contract terms that may be unfair, as in the ACL (and the EU law on unfair terms that influenced Australia, as well as partly Japan).

Furthermore, Japan’s Act again applies only B2C, although there is also some weak regulation of standard form terms extending to B2B under Civil Code amendments for contracts concluded after 2020. Injunctions to prevent misuse of unfair terms are only possible through certified NGOs, not consumer regulators, and the latter cannot issue fines. A class action regime introduced in 2013 also requires coordination through certified NGOs (not eg a law firm), and inefficiently requires individual consumers to opt-in to claim damages if and when a court finds liability for a class. Unsurprisingly, few claims have been made so far.

Despite these comparative limitations on consumer protection law in Japan, the practical outcomes in Australia may not be so different until recently, thanks to better customer service and reputational effects in Japan. However, the explosion in e-commerce and new types of marketing or practices, as well as possible transplantation of unfair terms into online contracts, may lead to a stronger message being sent to Japan (and Asian countries like Singapore, similarly lacking a broad unfair practices prohibition). This could be achieved by law reforms extending protections to some B2B situations, beefing up generally worded and/or specific prohibitions, expanding powers of regulators (for injunctions and even fines), and/or moving to a US-style opt-out class action system. However, the compliance costs and chilling effects on business innovation also need to be weighed carefully.

“Rule-based International Traceability of Critical Raw Materials Supply Chains”

Written by: A/Prof Jeanne Huang & Prof Luke Nottage

This is the theme for our project (with Jeanne Huang as one Chief Investigator) funded recently by the University of Sydney, jointly with institutional partner Fudan University (Shanghai). The sub-theme is “Climate and Environmental Justice between China, Australia, and Other Selected Countries”, including Japan. It is part of series of research projects aimed at advancing the UN’s Sustainable Development Goals (SDGs), and involves also from our Sydney Business School Prof Hans Hendrischke (specialist in China). The other Chief Investigator from the Fudan University side is A/Prof Ping Jiang, assistant director of the Department of Environment Science and Engineering.

Abstract: “The US Inflation Reduction Act and the EU Digital Product Passport both underscore the urgent need for enhanced Environmental, Social, and Governance data traceability across Australian miners, Chinese processors, and US/EU regulators and consumers of critical raw materials (CRM) like Lithium. Addressing this need, this project explores how to establish a rule-based traceability framework to foster sustainable CRM supply chains between Australia, China, the US, and the EU. It adopts a multifaceted approach, incorporating law-business-engineering interdisciplinary research, interviews, case studies, conflict-of-law concepts, and comparative law methodology to address cross-border legal and ethical tensions and promote circular economy within CRM supply chains. It aims to use traceability to enhance transparency, visibility, and trust in CRM supply chains, and promote responsible sourcing and consumption, crucial for global digitalization, electric vehicles deployment, energy transition, and ultimately achieving the UN Sustainable Development Goals.”

The first of many planned research outputs planned through to mid-2025 is our presentation (slides here) on 12 July 2024 at the “Law and Sustainability” conference at the University of Sydney, co-organised with Singapore Management University and Hong Kong University (program and other details here). We look forward to feedback as we develop our presentation, “Private International Law and Sustainable Development: Establishing International Traceability of Critical Raw Materials Supply Chains” into a full paper that assesses and adapts models particularly from international dispute resolution (arbitral award and judgment recognition) and other international treaty regimes to facilitate recognition of CRM certificates in cross-border supply chains.

Australia’s Anti-ISDS Approach Again: AANZFTA Protocol Ratification Hearing in Parliament

On 21 August 2023 Australia signed, with New Zealand and the ten member states of the Association of Southeast Asian Nations (ASEAN), the Second Protocol to Amend the Agreement Establishing the ASEAN-Australia-New Zealand Free Trade Area (AANZFTA), after announcing in November 2022 substantial conclusion of the free trade agreement (FTA) review that had commenced in September 2018. This amended treaty added new chapters and updated many others, whereas the first Protocol in 2015 focused on streamlining certification for cross-border movement of goods.

For example, as I noted in my written Submission in January 2024 to the Australian Parliament’s Joint Standing Committee on Treaties (JSCOT) inquiry into ratifying the Second Protocol, it added more provisions on consumer protection generally (in Article 7 of Chapter 17, but setting narrow minimum standards for national laws and not subject even to the inter-state dispute settlement Chapter that could help give those commitments more bite, compared to the Australia-UK FTA signed in 2021) and for e-commerce (Article 18 of Chapter 10, underpinned by inter-state dispute settlement – unlike the ASEAN+5 Regional Comprehensive Economic Partnership or RCEP signed in 2020).

However, my Submission and others focused mainly on the Second Protocol’s update to Chapter 11 on Investment. The substantive commitments (in Section A, Arts 1-18) were adjusted largely in line with RCEP’s Investment Chapter, but the main controversy concerned Section B’s retention of the investor-state dispute settlement (ISDS) option allowing arbitration as with the original AANZFTA (in forced from 2010). A week before the Second Protocol was substantially agreed, Australia’s Labor Government had declared on 14 November 2022 that it would not agree to ISDS protections for foreign investors in any future treaties, and would seek to review and remove them in past investment treaties. The New Zealand government had also announced in late 2017 that it would not agree to ISDS in future treaties, mimicking the stance of an earlier Labor (with Greens) Government when in power in Australia over 2011-2013.

Compromises were made when retaining ISDS in the Second Protocol’s Investment Chapter. The parties will first suspend application of the National Treatment commitment (not to discriminate against foreign investors compared to local investors, subject to scheduled country-specific exceptions) for breaches arising within 30 months of the upgrade. This is quite significant as the Second Protocol enlivens a previously inactive (Article 3) obligation for National Treatment. The second compromise is Article 17, providing for a work program to review Section B on ISDS no later than 18 months after the date of entry into force of the Second Protocol, to be concluded within 12 months unless extended by the states party – so probably by the end of 2027. (The program also requires discussion about adding two extra prohibitions of performance requirements in Article 6.1.) Given the Australian Labor Government’s opposition to ISDS, it can be expected to press for the removal or otherwise significant curtailing of Section B on ISDS. However, it faces a general election by May 2025, and if it loses to the Coalition the latter will reinstate a more flexible approach – agreeing to ISDS on a treaty-by-treaty assessment of Australia’s national interests. New Zealand’s Labor Government also lost the general election in October 2023, and its new Coalition Government is also likely to be quite sanguine about retaining ISDS.

In parallel, RCEP’s investment chapter had instead omitted ISDS but Article 10.18 established a work program to reconsider whether or not and how to add ISDS. This negotiation was to be started within two years of this ASEAN+5 treaty coming into force (January 2022 for ten states), to be concluded then within three years – so by the end of 2025. The largest non-ASEAN member states of RCEP with large outbound investments such as Japan, Korea and even China, may press for adding ISDS. However, their outbound investors mostly have anyway at least one other ISDS-backed treaty to invoke even without RCEP (eg Japan and Australia have the CPTPP, even though ISDS was omitted also from their 2014 bilateral FTA).

My Submission, and oral evidence given (with video-recording here) in favour of ratifying the Second Protocol (contrasting with the evidence and submissions opposing ratification from the Australian Council of Trade Unions and AFTINET), identified likely net benefits from ISDS-backed treaties including this one but also options for further drafting improvements, drawing partly on my submission to the 2020 DFAT review of Australia’s standalone bilateral investment treaties. I also urged ongoing transparency and stakeholder involvement in the envisaged work program.

We can expect most JSCOT members to recommend that Australia ratifies the Second Protocol. After all, JSCOT always has a majority of Government parliamentarians on the Committee, and its own minister has already signed the Protocol (after review by Cabinet colleagues). In addition, the Coalition parliamentarians in opposition have always maintained a flexible approach towards ISDS provisions. The solitary Australian Greens member, however, seems likely to recommend against ratification, as its parliamentarians have done on committees considering treaties that contain ISDS provisions. What will be more interesting is what the Labor members say about ISDS, including the evidence given, and what that might imply for Australia’s ongoing negotiations regarding investment agreements with India and the European Union.

“The Vis Moot in Japan: Tips and Tricks for Participants”

This hybrid-format 14 February 2024 seminar in Tokyo was planned primarily by the “Japan Arbitration Club” formed recently among younger arbitration experts and afficionados, led by Carlotta Bruessel (now with Nishimura & Asahi, Japan’s largest law firm, and previously working in Canberra and Sydney) who also moderated this seminar. My co-panellists included Eriko Kadota, now a managing associate in Tokyo with Linklaters (which co-sponsored the seminar and provided the venue) who competed successfully for ANJeL’s “Team Australia” in the intercollegiate negotiation and arbitration moot competition (INC) while a student at Sydney Law School. Other event supporters were the Australian Network for Japanese Law (ANJeL), the International Chamber of Commerce’s Young Arbitration and ADR Forum (ICC-YAAF, as this year’s Vis Moot applies the ICC Arbitration Rules) and the Moot Alumni Association for the Vis moot. The latter’s Japan members and others have started coordinating a “pre-moot” competition for Japanese university teams before they go to the main Vis Moot held in Vienna or the spin-off Vis East Moot held in Hong Kong.

The main focus of this seminar was to share experiences and ideas especially for Japanese students and coaches about what to expect in the Vis Moots. However, to that end I added some contrasts with the INC, which has also greatly enhanced interest and skills in arbitration among Japanese and other law students over the last two decades.

My first encounters with the Vis Moot dated back to the late 1990s, when I was joined as associate professor at Kyushu University Law Faculty by Hiroo Sono, who had already attended the Vis Moot and eventually became Dean of the Law School at Hokkaido University. (We also ended up co-authoring in 2019 a Kluwer book on Contract Law in Japan.) I took his prescient advice to attend the Sixth Vis Moot in Vienna as a mock arbitrator around Easter in 1999, as he had done in 1997. Then we ran a small courses for the Japanese-language LLM program and then new English-language LLM/LLD program in Kyushu University to coach a team that competed in the Seventh Vis Moot in Vienna in early 2000. Already there had been one Japanese team, from Meiji Gakuin University (competing in the Fifth and Sixth Vis Moots), but there was very little awareness of the competition around that time – or indeed about arbitration – in Japan. Writing articles in Japanese (in 1186 Jurisuto and 67 Hosei Kenkyu / Journal of Law and Politics, in 2000) with Professor Sono and in English (66 Hosei Kenkyu Part I and Part II in 1999) to promote more interest in the Vis Moot, I speculated that its growth already over the 1990s was linked partly to states starting to accede to the UN Sales Convention (CISG, agreed in 1980 and in force from 1988). It was even clearer that the numbers of teams per country were rising, generating critical mass and even by then creating scope for “pre-moots” before the main competition in Vienna – as seen from this Figure 1 reproduced Part II of my 1999 article in Hosei Kenkyu:

Japan acceded in 2008 (as explained in his JJL article here), thanks significantly to the efforts of Professor Sono who was seconded around then to the Ministry of Justice from Hokkaido University to promote understanding and engagement with CISG. This has made the UN Sales Convention directly relevant for Japanese traders and their legal advisors, who also need to assist Japanese subsidiaries and affiliates especially in Asian states that are also increasingly member states of CISG. Another contemporaneous development has been the comparatively belated but (especially since 2017) significantly greater interest in international arbitration among stakeholders in Japan (including now some very large local law firms, as well as branches of Western firms that were allowed full profit-sharing partnerships with Japanese bengoshi lawyers from 2004). This evolving context helps explain why by the 30th Vis Moot in Vienna held in 2023, there were four teams from Japanese universities (out of by then 380 teams in total): Doshisha, Kwansei Gakuin, Waseda and Seinan Gakuin. And for the 20th Vis East Moot in 2023, for example, Nagoya University reached the final eight teams.

These are impressive achievements for teams coming from a country where the native language is not English (the language of the Vis Moots), which helps Australian and other university teams; and not even a Western language, which helps continental European and other teams that have also been frequent and often very successful competitors as well. A further challenge for Japanese teams has been that traditionally the law schools from common law jurisdictions put more emphasis on mooting generally, to build up the oral advocacy skills needed for the court cases that drove the development of the common law. (Already in 1999 I was impressed by the enthusiasm and skills of a team from an Indian law schools, which are also now often top performers in both Vienna and Hong Kong moots.) However, more opportunities for mooting and oral argumentation have grown also within the civil law tradition countries, including Japan – perhaps linked to its postgraduate Law School program inaugurated from 2004, which (with some difficulties) has expanded the numbers and skills of bengoshi lawyers. This gradual transformation in Japanese legal education more generally is arguably also reflected in the growing popularity and skill levels associated with the INC moot held in Tokyo towards the end of each year since 2002.

However, the INC moot differs in several ways from the Vis Moot, so the latter creates extra challenges for Japanese university teams – most of which compete now in both competitions. First, INC has a division or track where (sub)teams compete in Japanese, not just in English, and indeed the aggregate score for each university is reduced if competing only in one of the two languages. More preparations – in research, writing memorandums and the crucial practice moots – can therefore be done in Japanese as a native language. Japanese university teams competing only in English in the Vis Moots therefore need to factor in extra time and confidence-building exercises, perhaps involving more English-speakers as team members and coaches.

Secondly, the INC applies the UNIDROIT Principles of International Commercial Coontracts (first issued in 2004). Although their provisions overlap with CISG considerably, as later and opt-in rules of law (that parties must actively adopt), the UNIDROIT Principles can be more ambitious in their scope. They include provisions, say on regulating contractual unfairness, or allowing for adjustment of contracts in the event of supervening hardship, that are mostly left out of CISG for the applicable national law. The UNIDROIT Principles additionally apply to more complex (services and other) contracts than the international sale of goods, allowing for more arguments emphasising good faith and cooperation among the contracting parties than under CISG. In addition, the UNIDROIT as a restatement of the lex mercatoria are still not accepted by courts in many jurisdictions as governing law even if agreed upon by the parties for their cross-border contracts, unless combined with an international arbitration clause. And because arbitration is mostly confidential, whereas court litigation is mostly public, this means there is now much more publically-available case law on CISG from national courts around the world (and therefore related commentary) than on the UNIDROIT Principles as applied by arbitral tribunals.

The result of these differences is that arguments on contract law applying CISG in the Vis Moot tend to be more neo-classical and based on formal reasoning centred on the parties’ agreement and language used. By contrast, the arguments applying the UNIDROIT Principles in the INC moot can be more open-textured, appealing to wider contextual (moral, economic and other) considerations, although over the last decade or so these arguments have also become more formalised.

Thirdly, the INC is a one-shot competition. Each university only argues once in the arbitration round (and indeed only for one side, as assigned randomly by the organisers), even if the university fields multiple sub-teams competing in parallel. By contrast, the Vis Moot envisages that the higher-scoring teams can progress through to Finals, over many days of mock arbitration hearings. This also makes that competition more amenable to detailed and therefore more formal-reasoning arguments by the teams.

Fourthly, the INC traditionally did not address arbitration law problems, whereas those are often at least as important in the Vis Moot as the contract law problems. Recently, the INC incorporate some arbitration law questions in that round, but a key difference remains that the second day of the INC competition is a mock commercial negotiation seeking to reach agreement on a complex international joint venture. The skills required for successful negotiation, such as asking open-ended questions to try to understand the other side’s underlying interests, are often quite different that the more adversarial advocacy skills expected in international arbitration. Developing the latter is another challenge for Japanese university teams, even if students or coaches have become familiar with the INC moot.

Overall, the Vis Moot is designed to run as a quite formalised procedure, and has become more so as the numbers of teams competing in that competition has continued to grow. (This is true even of the Vis Moot East event, which I attended also in its earlier years when it was still smaller and therefore more like the Vienna moot over the 1990s.) This reflects the fact that the Vis Moots (in Vienna and to a growing extent also in Hong Kong) are also now a premier competition for students, coaches and mock arbitrators to network in order to enhance opportunities to actually practice international arbitration. There has also been resurgent formalisation of international arbitration over the last 10-15 years, including burgeoning costs and delays. Accordingly, Japanese participants in the Vis Moots should not be surprised to find that competition to be more rule-bound and intense even compared to moots like the INC.

Lastly, I share with you some excellent practical tips especially on oral advocacy for the Vis Moot (but also useful for the INC moot), from my colleague Prof Chester Brown. He has been lead coach for the University of Sydney Law School team that has competed very successfully in Vienna for around the last 15 years:

  1. Present clear and simplified arguments
  2. Signpost them (eg “We have three points …[but due to time the main focus will be on … unless the tribunal has particular interest in …]”)
  3. If “respondent” on issues, respond to points made by claimants rather than reverting to written submissions
  4. identify for the tribunal where parties agree or disagree (eg on the legal test)
  5. use evidentiary record and precisely
  6. remember points given for teamwork (eg for keeping to time)
  7. remember one’s own timekeeping (eg if arbitrator questions a lot on an early issue, be ready to present on the second issue in say 1-2 not 6-7 minutes (& then ask for extra minute for both sides).

ANJeL “Team Australia” 2nd again in INC Negotiation & Arbitration Moot!

Congratulations to University of Sydney Law School LLB and JD students Michelle Chen Daniel Hu, Kim Nguyen and Sean Yalcinkaya. They combined with other students mostly from ANU to form “Team Australia”, which again came second in the INC negotiation  and arbitration competition held over 9-10 December 2023 in Japan (this time pipped by UTokyo, with KyotoU coming third).

Importantly and deservedly, Team Australia won the ANJeL-sponsored prize for best (marks in) Teamwork. That was particularly impressive as the students have to cooperate cross-institutionally, and focus on moot preparations over the tense exam period. The students were also able to have a special tour of the apex Supreme Court, helped by ANJeL’s longstanding support for judicial visitors from Japan.

Special thanks to the lead coach and ANU law lecturer, James C. Fisher (and in past years Profs Kent Anderson and Veronica L. Taylor, ANJeL Advisors) as well as CAPLUS affiliate Nobumichi Teramura and Inma Conde for practice arbitrations. We are also grateful for support from DFAT (New Colombo Plan scholarships), Dean Simon Bronitt, Mitsui Matsushima and many past Moot alumni – including Ben Hines  and Irene Ma (both in the 2022 Team that also came second) and Eriko Kadota (now with Linklaters in Tokyo). For more details about this and past Teams see here.

Arbitration and Sports Law (Baseball) Dispute Resolution in Australia and Japan

As part of the Japanaroo suite of events, ANJeL is delighted to coordinate at Sydney Law School the two free public seminars below, both including a strong comparative focus on Japan and Australia, and involving a former Chief Justice of Victoria. One on Thursday 21 September compares arbitration’s historical trajectory (hybrid-format seminar, including two ANJeL program convenors based abroad – register via https://law-events.sydney.edu.au/events/intarbitrationaujp). The second on Friday 22 September compares sports law and dispute resolution (generally and with baseball as a major case study; in-person only, chaired by another ANJeL convenor Micah Burch – register via https://law-events.sydney.edu.au/events/globalsports-767).

1. Comparative History of International Arbitration: Australia, Japan and Beyond

This hybrid-format webinar compares the historical trajectory of international arbitration law and practice in Australia and Japan in regional and global contexts. An aim is to explore the evolving images and contours of arbitration and scope for cross-border collaboration in promoting this popular but sometimes contested form of dispute resolution.

Speakers

Commentator: Prof Luke Nottage (University of Sydney)(Drawing on the concluding chapter in his 2021 book: https://japaneselaw.sydney.edu.au/2020/08/book-in-press-with-elgar/ and his Encyclopedia entry on ACICA (with Prof Richard Garnett) at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4431276 )

Thursday 21 September

Time: 4-5.30pm

Location: The University of Sydney, Common Room, Level 4, New Law Building (F10), Eastern Avenue, Camperdown

Cost: Free, but registration is essential. Please select your attendance type during registration.

CPD points: 1.5 points

This event is being held an online and in-person at Sydney Law School. Please indicate your viewing preference when registering.

This event is proudly co-presented by the Centre for Asian and Pacific Law, the Resolution Institute and the Australian Network for Japanese Law at the University of Sydney Law School.

2. 2nd Annual Global Sports Law Symposium: Dispute Resolution

In-person event

This symposium brings together luminary experts and practitioners in sports law to discuss dispute resolution in the world of sports (it follows on from ANJeL’s seminar on international arbitration). The symposium’s first panel will feature two giants of the Australian sports law world reflecting on their careers in jurisprudence and sports administration resolving disputes in the sports area. The second panel will be a case study focusing on dispute resolution in baseball with two experts on both Japanese and Australian baseball.

About the Speakers

A. Dispute Resolution in Sports: Expert Reflections

Professor Deborah Healey (University of New South Wales)

Deborah Healey is the Director of the Herbert Smith Freehills China International Business and Economic Law (CIBEL) Centre and the Editor of the Sports Law Journal. She has more than 30 years of experience serving on the boards of major sports governance organizations and serves on the National Sports Tribunal.

Professor the Hon Marilyn Warren AC KC (Monash University)

Marilyn Warren is a Vice Chancellor’s Professorial Fellow of Monash University and is the former Chief Justice of Victoria. She practices as a commercial arbitrator and teaches law as a Professor at Monash’s Law Faculty.

B. Dispute Resolution in Sports: Baseball Case Study

Mr. Mark Marino (CEO, Baseball NSW)

Mark Marino has been the CEO of Baseball NSW since 2014 and is an Executive Committee Member of the Australian Baseball Players Alumni Association. Mark played collegiate and professional baseball in the United States and was the CEO of the Sydney Blue Sox 2014-2018.

Dr. Matt Nichol (Lecturer, Central Queensland University, (Melbourne))

Matt Nichol is a lecturer and sports law academic at the School of Business and Law at Central Queensland University and a board member of Baseball Victoria. His research uses approaches to labour law and regulatory theory to understand the regulation of labour in professional team sports.

Moderator: Mr. Micah Burch, Senior Lecturer, Sydney Law School.

Hosts: Sydney Law School, Australian Network for Japanese Law, Australia New Zealand Sports Law Association

Date: Friday, 22 September 2023

Time: 4.00-5.30pm

Location: Common Room, Level 4, New Law Building (F10), The University of Sydney

Please follow directional signage on arrival.

CPD Points: 1.5

This event is proudly co-presented by The University of Sydney Law School, the Australian Network for Japanese Law and the Australia New Zealand Sports Law Association.

Vote of thanks for Chief Justice Bell’s launch of “Comparing Online Legal Education” (& Foreword by James Douglas KC)

[From book launch on 3 August 2023]

I am very grateful for NSW Chief Justice Andrew Bell [pictured, above on left] for taking time from his busy schedule to launch this book [video-recording here or via the Sydney Law School podcasts on Youtube]. Perhaps I should have asked instead for such a favour for my next volume just into press, on Corruption and Asian Investment Arbitration, given His Honour’s longstanding shared interest in cross-border dispute resolution. But the Chief Justice also was a valued lecturer for Sydney Law School over many years, and I was struck by the remarks made about online legal education in another book launch following the annual Winterton lecture in the Banco Court a few months ago. Thank you very much for sharing some further ideas and kind words, reminding us of the history of technological developments in the research and teaching of law over our lifetimes, in the context of this volume.

I also acknowledge the Foreword [reproduced below] kindly contributed by former Queensland Supreme Court Justice James Douglas, here today [pictured, 2nd from right] and a longstanding elected member of the International Academy of Comparative Law. I also appreciate that Academy and then Secretary-General Prof Diego Fernández Arroyo for inviting me in early 2020 to become the General Reporter comparing developments world-wide related to online legal education. That became of course a very hot topic due to the COVID-19 pandemic, which unfortunately meant not all nominated national reporters ended up producing chapters for this book. But I think it nonetheless achieved a fairly representative mix of jurisdictions to draw wider comparative conclusions – jurisdictions from common law, civil law and mixed traditions, more or less democratic states, large and small states, developed and developing economies.

I thank all the contributors to this book, especially my co-editor Seijo University Prof Makoto Ibusuki, ANJeL-in-Japan program convenor and frequent visitor to Australia (and many parts of the world). I particularly valued some early zoom discussions over 2020, comparing different challenges and reactions in Australia and Japan. We and this book also benefited from an excellent chapter co-authored by ANJeL Advisor and Newcastle DVC, Prof Kent Anderson here tonight, comparing different “gatekeepers” across jurisdictions that regulate entry to the legal profession: lawyers, governments, universities and the market. The book’s summary general report plus the jurisdictional reports consider how each model, along with other factors such as ICT infrastructure and funding for universities as well as the extent of COVID-19 impact, can influence the trajectories of in-person and then online legal education.

I thank also Rebecca Moffat and the very professional team at Intersentia, which has become the publisher for the book series from the Academy’s four-yearly major comparative law congresses. (I only hope they bring down the price for the e-book version.) I am especially grateful to Intersentia and the Academy for adapting for the book cover an abstract artwork provided by my daughter Erica Kobayashi Nottage of Enso Circulation, finishing off at the National Art School this year, and for the rest of my immediate family for joining us for the book launch.

For hosting tonight, I thank Dean Simon Bronitt [pictured in photo above, right] and Sydney Law School (including its Centre for Asian and Pacific Law, the cross-institutional Australian Network for Japanese Law, and Carla and Ashleigh from our terrific Events Team). Further editorial and research assistance for the book was kindly provided through the University of Wollongong’s Transnational Law and Policy Centre, where I enjoy an honorary affiliation. I am also glad for the support of Assoc Prof Markus Wagner, leading that Centre, and his Dean Trish Mundy kindly co-authored an insightful chapter on online legal education in Australia.

Thank you again for the insightful remarks on launching this book, Chief Justice, and for all my colleagues, family, friends and others who attended to support this event.

***

Book’s Foreword, by the Hon James Douglas KC:

A long time ago I experienced the mixed joys of both undergraduate and postgraduate law lectures and tutorials delivered directly in the classroom among fellow students. In my final undergraduate year in 1973, however, I studied part-time entirely remotely by reading lecture notes with references to the relevant texts and cases. Luckily, I had access to an excellent law library and was the associate of a judge in a final appellate court where there were other such judges with associates who were recent graduates. I could bounce ideas off them and learn from the cases argued before the court. I hate to think what that experience of remote learning would have been like had I not had that environment around me. I admire greatly those lawyers who have successfully educated themselves solely through distance or online education. 

I recognise the advantages that modern technology can provide to remote learning not only through video-conferencing of lectures and tutorials but by direct access to relevant primary materials online. That early experience, however, has biased me in favour of live teaching in a class full of students actually present. As the authors recognise in their introduction, even interactive video-conferencing makes it more difficult for remote students ‘to engage in classroom discussions … where picking up on nuances can be harder than in physical interactions, even for native speakers’. Common experience of video-conferencing outside the academic environment backs up those conclusions. 

There is so much to be learned also in informal discussion with lecturers and other students and from an environment where the social interaction and physical facilities are focused on what you are studying. As the authors say about the experience of online education in Macao, ‘law is rooted in human interactions, benefiting not only from direct student–teacher contact but also from student learning among peers, through classroom teaching but also other personal contacts on campus’. This personal contact is recognised as a continuing advantage particularly in aspects of courses where students need to learn practical or ‘soft’ skills.

The period leading up to the International Academy of Comparative Law’s 2022 Congress in Paraguay coincided with the spread of the COVID-19 virus and the curtailment of normal legal education in very many jurisdictions. So the decision to examine the topic of online legal education at the Congress proved to be very ‘timely’, as Professors Nottage and Ibusuki say in their General Report. Suddenly online legal education had become frighteningly necessary and common. It can also provide access to courses otherwise practically too expensive or unavailable to less privileged students. What, therefore, may be the consequences of greater use of online legal education for the future of the profession and the teaching of law around the world?

This useful volume examines those issues relevant to online legal education in 13 jurisdictions representative of the major common law and civilian traditions as well as some hybrid jurisdictions. It makes some tentative predictions for the future of such education. The examples also carry the advantage of having been drawn from countries with widely varying economies, unequal access to technology for online teaching and differing traditions in the teaching of law. 

The authors link legal education to the legal profession and main legal traditions of each jurisdiction covered, and include pre- and post-admission education for law graduates. The focus is mostly on university-level legal education but practical professional training in some jurisdictions is also addressed. Online education for such practical training can be more effective than may be the case for young undergraduates. It is also notable that the topic shows the typical tensions between continuity and change often found in comparative studies. 

Some of the main general conclusions reached are that developments in online legal education in the 13 jurisdictions examined should be influenced by the nature of the jurisdiction’s legal tradition and legal profession, its level of public funding for universities, its level of economic development, including its infrastructure for information and communications technology, and the particular impact of the COVID-19 pandemic. The work as a whole will be especially useful for those considering how to deploy online legal education in a particular jurisdiction, using that analysis, with a view to setting up a properly nuanced regime for that style of education for that jurisdiction. 

Those charged with these significant responsibilities in jurisdictions and universities around the world will derive great benefit from studying the insights contained in this volume. 

Japanese Imperial Decoration for former NSW Chief Justice Bathurst

ANJeL is delighted to join in congratulating its member and longstanding supporter the Hon Tom Bathurst AC KC, former Chief Justice of New South Wales and now King’s Counsel with 6 Selbourne Wentworth Chambers, for being awarded recently this year a very high Honour from the Emperor on the advice of the Japanese Government. Very few jurists have been accorded this Honour, but among them are French law reform advisor and professor Gustave Emile Boissonade (1825–1910) and former High Court of Australia justice the Hon Michael Kirby AC CMG (awarded in 2017).

Photos from the conferment ceremony, attended also by the immediate past President (now NSW governor) and current President of the NSW Court of Appeal as well as ANJeL visiting Judge Kohei Sasaki and others, can be found here along with the Consulate-General’s further explanation:

“On 29 April, Mr Tom Bathurst was announced as a recipient of The Order of the Rising Sun, Gold and Silver Star, in the 2023 Spring Imperial Decorations, in recognition of his contribution to strengthening ties between Japan and Australia and the promotion of mutual understanding in the judicial field.

On 6 July, at his official residence, Consul-General Tokuda presented the Order of the Rising Sun, Gold and Silver Star to Mr Bathurst, former Chief Justice of the Supreme Court of New South Wales and former Chair of the Judicial Section of the Law Association for Asia and the Pacific (LAWASIA). During the ceremony, a video message from Japan’s Chief Justice TOKURA Saburo was played to Mr Bathurst and assembled guests.”

ANJeL is also very grateful for support over the last two decades from the current NSW Chief Justice, the Hon Andrew Bell (launching on 3 August Luke Nottage’s book co-edited with Prof Makoto Ibusuki, comparing online legal education) and Mr Bathurst’s predecessor, the Hon J J Spigelman who first collaborated with ANJeL in its formal judicial exchange program with the Supreme Court of Japan. ANJeL also thanks Mr Shuichi Tokuda and his predecessors as Consul-General of Japan in Sydney, who have assisted with this program and other ANJeL activities while serving on its Advisory Board.