Guest Blog: Pandemic Pressure Points –Economics Governance and Society in Japan

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

On 25 August 2021, the Australian Network for Japanese Law (ANJeL), the Australia-Japan Society of New South Wales (AJS), the Australia-Japan Research Centre (AJRC), the Japan Studies Association of Australia (JSAA) and the Centre for Asian and Pacific Law (CAPLUS) delivered a timely seminar entitled “Pandemic Pressure Points: Economics, Governance and Society in Japan”. The webinar was moderated by Dr Rowena Ward, JSAA Treasurer and Senior Lecturer in Japanese studies at the University of Wollongong. Panellists were Professor Yasuko Hassall Kobayashi, Associate Professor at Ritsumeikan University’s College of Global Liberal Arts (and Honorary Associate Professor, ANU College of Asia and the Pacific); ANJeL co-director Professor Luke Nottage from the University of Sydney Law School; and Professor Shiro Armstrong, AJRC director and Associate Professor of economics at the Australian National University (also co-editor of the East Asia Forum blog). Closing remarks were given by Masahiko Kiya, Consul-General of Japan in Sydney, and also Patron of AJS and on ANJeL’s Advisory Board. We had the privilege to explore diverse and topical themes: the impact of the pandemic on Japanese governance and its legal system, the impact of the pandemic on the Japanese economy, how the pandemic has disadvantaged vulnerable groups, and, among other themes, the emergence and potential of digitalisation in Japan.

Dr Ward commenced the substantive part of the seminar by sharing graphs reflecting vaccination and case numbers in Japan. While the number of cases has substantially increased since the middle of June 2021, deaths have recently come down compared to the 7-day average (~7 compared to 32), and have been kept very low by international standards even during earlier waves. Turning to age and sex statistics, males, especially in their 80s, are generally at a higher risk of death than females, and recently, there have been virtually no women in their 30s who have died from COVID. Around 40% of Japanese have received two doses. This number is somewhat higher than in Australia, which has also ramped up vaccinations over the last two months.

Following the statistics, Professor Kobayashi presented and dissected the economic disparity between women and men in the Japanese labour market amid the pandemic and the general social picture. Professor Kobayashi noted that women have generally had less income than men (~251.0 to 338.0); have been subject to precarious, part-time jobs at a higher rate than men; and have experienced more unemployment than men. Women with child/ren had the highest unemployment rate (11.5% compared to 4.2% for men and 9.1% for women) according to May 2020 statistics. As Professor Armstrong later suggested, the actual rate of unemployment figure may be unknown for all women (and men), as the unemployed may not have started looking for employment and are therefore not incorporated in unemployment statistics. Professor Kobayashi noted that there has been an increasing number of telephone consultations for domestic violence (skyrocketing from around 9,000 in January 2020 to over 17,000 between March and April 2020). Furthermore, women have found themselves tasked with ever-more domestic responsibilities, and would like men to participate more in the household than pre-pandemic (21% of tasks to about a quarter).

Professor Armstrong turned to the Japanese economy, and discussed the immediate impacts of the pandemic on the economy. He noted that, while the economy did not shrink this quarter, we may miss the ‘Olympic bounce’ that historically accompanies the Olympics (Tokyo was in a state of emergency and we did not see the type of tourism that follows the Olympics). Nonregular workers, women, young people, the elderly, and the vulnerable in Japanese society have particularly experienced financial hardship. Unlike Australia, Japan has provided limited stimuli, and it has taken considerable time for Japanese to receive checks and masks.

Later, Professor Nottage discussed Japanese law before and amid the pandemic. Japan has been comparatively unusual in pandemic management by not imposing criminal or other legal sanctions on individuals, but instead relying mainly on community norms and self-responsibility to limit movement and COVID-19 spread. One question is whether this provides another example of what Professor John Haley identified as a persistent pattern of “authority without power” in Japanese legal history, meaning authorities don’t have or want to invoke legal powers. An illustration is the practice of informal “administrative guidance” to influence business activity, quite common until the 1980s.

However, Professor Nottage observed that with the COVID-19 pandemic, the government did have constitutional power to extend emergency powers to restrict business activity (which it eventually legislated for, but still in a soft manner compared to Australia and other countries) and even to restrict movement by citizens. The government seems to have decided not to introduce harder lockdown measures because legally they still have to be proportionate, and Japanese citizens and firms generally act responsibly anyway. Another reason is that compensation should be paid if constraints are legislated, and the Japanese government already has high levels of national debt. The response has arguably struck quite a good balance, if we focus on the very low death rates (as the government seems to have done from the outset of the pandemic) combined with benefits from keeping the economy largely open. As one Tokyo-based law professor remarked, a visitor nowadays wouldn’t really know that Japan was going through a global pandemic, except for people wearing masks in crowded situations, somewhat fewer commuters as more work or have university studies from home, and some organisations restricting numbers and hours of operation.

The recent reliance mainly on self- and community responsibility does sit somewhat uneasily with the reforms implemented after an all-of-government report on justice system reform, aimed at making the law more part of everyday life in Japan. Those changes to civil and criminal justice, as well as the expansion of legal education and professionals, were aimed at allowing businesses more flexibility instead of ex ante regulation by public authorities, but improved processes to provide ex post remedies for misbehaviour through more functional courts or alternative dispute resolution systems. But in public health, especially in crises like a pandemic, prevention is usually better than cure. There are downsides, too, in moving socio-economic ordering in an overly legalistic direction.

Professor Nottage also mentioned some areas where the pandemic has had significant impact on Japan’s legal system, drawing on a series of YouTube interviews with various experts in Japanese law, funded through the Japan Foundation Sydney for ANJeL and the JSAA. Japan’s contract and consumer law systems seems to be responding comparatively well, but the pandemic challenges have forced the courts to bring forward plans to digitalise their still mostly paper-based procedures. By contrast, the rapid worldwide shift to remote hearings in international arbitration and mediation creates opportunities for newly established ADR institutions in Japan, but also significant competition.

The webinar also had a variety of questions and answers during the question segment, in the Sydney Law School podcasts recording. For further developments and perspectives, the AJRC is holding a Japan Update 2021 online seminar on 8 September 2021 over 10:00AM-3:00PM AEST.

***

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.


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

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

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


Arb-Med for International Arbitration: in Japan, not Australia?

Active settlement facilitation by arbitrators in Japan, mirroring mediation by judges following the historically German/Austrian civil procedure law tradition, remains quite persuasive. This was evident from JCAA statistics analysed a decade ago by Prof Tatsuya Nakamura, prompting my commentary on this Blog (incorporated into chapter 4 of my new Elgar book, to be launched Thursday 17 June 2021 by Chief Justice Allsop of the Federal Court of Australia). Australia has also experimented with statutory Arb-Med provisions in New South Wales from 1990, and nation-wide from 2010 for domestic arbitrations under a more restrictive model, but Arb-Med has been far less popular in practice. The 2021 Rules of the Australian Centre for International Commercial Arbitration ended up not including Arb-Med provisions, but they were included (based largely on the 2010 legislation for domestic arbitration) in the September 2020 Consultation Draft Rules, so draft Article 55 reproduced below.

My analysis for the Kluwer Arbitration Blog (posted 1 May 2021) examines this topic in more detail. I suggest those draft Rule provisions could still be adapted anyway for individual contracts by parties and legal advisors (especially those from or familiar with Japan), other arbitral institutions (such as the JCAA) or legislators.

55. Mediation by an Arbitrator

55.1 An arbitrator may act as a mediator in relation to the dispute or a part of the dispute between the parties if each party has consented in writing prior to the arbitrator so acting.

55.2 If an arbitrator acts as a mediator, the arbitral proceedings must be stayed to facilitate the conduct of the mediation proceedings.

55.3 An arbitrator who is acting as a mediator:

(a) may communicate with the parties collectively or separately; and

(b) must treat any confidential information obtained from a party as confidential and for the purposes of these Rules, any information provided by one party to the arbitrator which that party: (i) has not provided to all the other parties; or (ii) has not expressly agreed can be provided to all the other parties, shall be treated as confidential.

55.4 If, during the course of any mediation, confidential information is obtained by the arbitrator and if the mediation terminates without a settlement of the entire dispute being reached, before recommencing the arbitration:

(a) the arbitrator must inform the parties if he or she has obtained confidential information during the mediation; and

(b) after so informing the party, the arbitrator must obtain the express written consent of all the parties before resuming to act as an arbitrator.

55.5 Following the termination of any mediation, no objection may be taken to the future involvement in the arbitration proceedings by the arbitrator on the grounds that the arbitrator acted as a mediator in relation to the dispute:

(a) if the arbitrator obtains the express written consent of all the parties to the arbitration required by Article 55.1; or

(b) if the arbitrator did not obtain any confidential information during the course of the mediation.

55.6 If an arbitrator has obtained confidential information during the course of any mediation and all parties do not consent to the resumption of the arbitration proceedings by the arbitrator, the arbitrator’s appointment is taken to have been terminated. Upon such termination, a replacement arbitrator is to be confirmed or appointed pursuant to the procedure by which the arbitrator being replaced was confirmed or appointed, except that:

(a) if there is a sole arbitrator, and if within [40] days of the parties authorising the arbitrator to act as mediator the parties have not reached agreement on the choice of a replacement sole arbitrator and provided written evidence of their agreed nomination to ACICA, the replacement sole arbitrator shall be appointed by ACICA with a mandate to commence upon termination of the appointment of the arbitrator who acted as mediator; or

(b) if there are three arbitrators, and if within [60] days of the parties authorising one or more arbitrators to act as mediator the parties have not reached agreement on the choice of one or more replacement arbitrators arbitrator and provided written evidence of their agreed nomination to ACICA, the replacement sole arbitrator(s) shall be appointed by ACICA with a mandate to commence upon termination of the appointment of the arbitrator(s) who acted as mediator.

Online Legal Education Compared: Australia, Japan and (Far) Beyond

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 National 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 series published by Springer.

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.

  • 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?
1. Australie/Australia 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 
Nobumichi Teramura (Universiti Brunei Darussalam, Institute of Asian Studies) & Salim Farrar (University of Sydney, Law School)

Adrien Habermacher (UMoncton)
5. Chypre/Cyprus Demetra Loizou and Lida Pitsillidou (University of Central Lancashire, Cyprus) 
6. Croatie/CroatiaMirela 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 Rossella Esther Cerchia  (University of Milano Statale) 
12. Japon/Japan Kenichi YONEDA (Kagoshima  University)
13. Macao/MacauRostam J. NEUWIRTH, Alexandr SVETLICINII, Muruga Perumal RAMASWAMY (University of  Macau) 
14. Norvège/Norway Tobias Mahler (University of Oslo)
15. Pakistan 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

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)

ANJeL/JSAA “Japanese Law in Context” Podcasts Project – Going Live

The Australian Network for Japanese Law (ANJeL) in collaboration with the Japan Studies Association of Australia (JSAA) and thanks to Mini-Grant funding from the Japan Foundation Sydney awarded in November 2020, has completed 20 podcasts introducing Japanese Law in comparative and socio-economic contexts. The interviews include segments on the current or likely impact of the COVID-19 pandemic across the diverse sub-fields of Japanese law and society. The podcast “playlist” is here on Youtube and a report is here on the design and some key points from the podcasts, written by Melanie Trezise (PhD candidate and research assistant at the University of Sydney Law School, and past ANJeL Executive Coordinator).

The expert interviewees have taught in the Kyoto and Tokyo Seminars in Japanese Law, co-organised by ANJeL and Ritsumeikan University‘s postgraduate Law School since 2005 for Japanese, Australian and other international students, and/or the interviewees have been ANJeL visitors or advisors. Interviewers are ANJeL co-directors Prof Luke Nottage (University of Sydney Law School) and A/Prof Leon Wolff (QUT), along with Micah Burch (Senior Lecturer at Sydney Law School) and Melanie Trezise (who was also primarily responsible for the editing). Others who helped make this possible include Dr Nobumichi Teramura (now Assistant Professor at the University of Brunei) and the terrific tech team from Sydney Law School (Lana Kolta, Andy Netherington and Ross West).

ANJeL and JSAA are very grateful to all who supported this project. We hope that these resources available via their websites (or directly via Youtube) will be useful for the wider public when engaging with the fascinating and ever-changing world of Japanese law. The sub-topics and interviewees are listed below, with video-recordings edited to around 15-20 minutes each. There are also several mostly longer Bonus Features as well as a shorter introduction (by Luke Nottage), such as reflections about the innovative Kyoto and Tokyo Seminar program from some of its key architects (including past ANJeL Co-Director Kent Anderson and Ritsumeikan University Professor Naoya Yamaguchi). Other Seminar program organisers over the years include Professors Makoto Ibusuki (Program Convenor: ASEAN-in-Japan), Tsuneyoshi Tanaka and Chihara Watanabe.

  • Introduction to the Podcast Series – Luke Nottage (USydney)
  • Pop Culture – Leon Wolff (QUT)
  • Comparative and Theoretical Perspectives- Tetsuro Hirano & Chihara Watanabe (Ritsumeikan) with Luke Nottage
  • Mediation – James Claxton (Rikkyo / Waseda U) & Kyoko Ishida (Waseda U)
  • Arbitration – Giorgio Colombo (Nagoya U), Tatsuya Nakamura (Kokushikan U) & Nobumichi Teramura (UBrunei)
  • Civil Procedure – Yoko Tamura (Tsukuba U)
  • Lawyers – Jiri Mesteky (Kitahama Partners) & Yoshihiro Obayashi (Yodoyabashi & Yamagami)
  • Criminal Justice – Kent Anderson (ANU / Advisor to Australia’s Education Minister) & Makoto Ibusuki (Seijo U)
  • Government – Narufumi Kadomatsu (Kobe U)
  • Gender – Kyoko Ishida (Waseda U)
  • Labour – Takashi Araki (U Tokyo)
  • Contracts – Veronica Taylor (ANU/ ANJeL Advisor) & Tomohiro Yoshimasa (Kyoto U)
  • Consumers – Marc Dernauer (Chuo U)
  • Corporate Governance – Souichirou Kozuka (Gakushuin U)
  • Finance – Akihiro Wani (Morrison & Forster)
  • Tax – Justin Dabner (formerly JCU) with Micah Burch (USydney)
  • Bonus: Sports – Matt Nichol (CQU) with Micah Burch
  • Bonus: Gender, Past & Present – Masako Kamiya (Gakushuin U)
  • Bonus: Pandemic & Japanese Law – Compilation
  • Bonus: Kyoto and Tokyo Seminars – Kent Anderson, Leon Wolff & Naoya Yamaguchi (Ritsumeikan) with Luke Nottage

Asian Legal Conversations: COVID-19 (Japan)

ANJeL Program Convenor (Judges-in-Residence) A/Prof Stacey Steele and UMelbourne colleagues have produced or assembled webinar recordings, interview transcripts and other resources comparing how Japanese and society has managed the COVID-19 pandemic, available here.

These resources include:

Quarantine, Masks and Dis/ease: Social Discourses of COVID-19 in Japan and Korea

Sunyoung Oh, Claire Maree, Jun Ohashi and Patrick Murphy
Originally posted on the Melbourne Asia Review, 5 November 2020 [43-minute recorded webinar]

An Analysis of Japanese Responses to COVID-19 from an Administrative Law Perspective

Shusaku Kitajima, 8 October 2020 [article, building on interview with Stacey Steele (26 May, transcript here)]

Responses to COVID-19 and Japanese Criminal Justice

Reegan Grayson-Morison and Stacey Steele, 24 June 2020 [interview transcript]

Judicial Responses to COVID-19: Japanese and Victorian Courts’ Use of Technology

Reegan Grayson-Morison and Stacey Steele, 23 June 2020 [interview transcript]

Embracing Asian Law Centre Communities and Opportunities: Alumni Gathering of Japanese Judicial Visitors

Stacey Steele, 18 June 2020 [short article]

Regionalism Rises in Japan to Confront COVID-19

Dan Rosen, 21 May 2020 [short article]

Japan’s Soft State of Emergency: Social Pressure Instead of Legal Penalty

Akiko Ejima
Co-posted in collaboration with
COVID-DEM, which curates and publishes analysis of COVID-19’s impact on democracy worldwide, 13 May 2020 [short article]

Not a Sporting Chance: COVID-19 Dashes Japan’s Olympic Economic Hopes

Asialink
Originally posted on
Asialink Insights, 11 May 2020 [short article]

“ADR Academic of the Year 2020” Award

Based partly on his new book of selected, updated and new essays on “International Commercial and Investor-State Arbitration: Australia and Japan in Regional and Global Contexts”, Luke Nottage was recently awarded “2020 ADR Academic of the Year” by the Australian Disputes Centre. This leading centre administering and promoting Alternative Dispute Resolution has presented the “Australian ADR Awards” since 2016 across various categories. Open to all Australia-based experts, the “ADR Academic of the  Year” award “recognises the achievements of individuals who have in the last 12 months demonstrated excellence in academia in the field of [ADR, with work having] benefitted individuals, organisations or communities to achieve outcomes in more effectively resolving disputes.” More detailed criteria (work undertaken, process management, and benefits) and how Luke successfully met them over 2020 with kind letters of support from  Malcolm Holmes QC and Corrs consultant Prof Richard Garnett, are set out below.

  1. Detail outstanding work [over 2020] that illustrates excellence in academic endeavour in the area of alternative dispute resolution. [NB: Manuscript versions of most papers are freely downloadable via SSRN.com]

–       Four articles in leading refereed journals: on ISDS arbitrator neutrality (JWIT – as part of the special issue co-authored by the Geneva-based Academic Forum for ISDS), arbitration transparency (AIAJ), resolving Japan-Korea trade and investment disputes (JWT), Japan’s initiatives in international dispute resolution services (JJL)

–       Six chapters published or in press for books: on judicial control of arbitral awards (CUP Handbook), Asian investment treaty arbitration (including Japan and Australia, for Springer Handbook), arbitration and ‘society at large’ (CUP Compendium), ISDS impact on FDI (CUP), and a detailed analysis of ACICA (for the Oxford Encylopedia of International Procedural Law, with Prof Richard Garnett)

–       lead-edited New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution (15 chapters, Wolters Kluwer, published end-2020), including my own five (co-)authored chapters (eg on Australia’s recent investment treaty arbitration practice): outline at https://japaneselaw.sydney.edu.au/2020/07/new-frontiers-in-asia-pacific-international-arbitration-and-dispute-resolution-luke-nottage-shahla-ali-bruno-jetin-nobumichi-teramura-eds-wolters-kluwer-end-2020-abstracts-keywords-webin/

–       put into press 12-chapter International Commercial and Investor-State Arbitration: Australia and Japan in Regional and Global Contexts (Elgar, February 2021): outline at https://japaneselaw.sydney.edu.au/2020/08/book-in-press-with-elgar/

–       taught international arbitration at Sydney Law School (over 200 students across 5 JD/LLB and LLM courses) and UAuckland (LLM)

–       Supervising two PhD students in international arbitration and mediation, awarded Sydney University Postgraduate Representative Association “supervisor of the year” in late 2019

–       Academic Co-advisor for “Team Australia” law students across multiple Australian universities, who came second in Tokyo’s Intercollegiate Negotiation and Arbitration Competition in December 2019, and again second in November 2020 competing remotely (https://www.teamaustralia-inc.net/),

–       Only full-time academic on the ACICA Rules Drafting Committee, which released new draft Rules recently for public consultation

  1. How have you researched and developed this work and what skills have you used to ensure its effective delivery? [‘process management’]

–       Provided freely downloadable versions of almost all above publications (and most earlier arbitration or ADR-related publications) via http://ssrn.com/author=488525 (with 2700+ downloads of all my papers over last 12 months, so one of the most widely-read Australia-based law authors via SSRN.com)

–       For the Kluwer New Frontiers book: obtained competitive funding from USydney and Hong Kong University for two conferences, ran the USydney-based one in November 2019, mentored a project assistant to become a book co-editor, reported on presentations and related work in progress via https://japaneselaw.sydney.edu.au,  http://arbitrationblog.kluwerarbitration.com/author/luke-nottage/ and http://mediationblog.kluwerarbitration.com/author/luke-nottage/

–       Further disseminated research findings to practitioners and others through professional journals such as ACICA Review (December 2019 pp54-6, with Rome-based seminar co-presenter) and multiple international and domestic conference or seminar presentations (including Kluwer book related seminar organised and chaired on 4 August 2020 webinar, with over 200 registrants: https://law-events.sydney.edu.au/talkevents/beyond-the-pandemic-new-frontiers-in-asia-pacific-international-dispute-resolution)

–       Provided three submissions (twice invited to give oral evidence) for parliamentary inquiries into four treaties related to investment arbitration, with associated media commentary (eg AFR 26 August 2019) and analysis quoted in related JSCOT Reports (eg No 188, December 2019)

–       Co-organised and co-moderated ACICA Rules Revision public consultation webinar for Australian Arbitration Week in October 2020

–       Joined williamstradelaw.com as Special Counsel from July 2020 to provide legal advice in international arbitration nationally and internationally

  1. How do you believe this work has benefitted individuals, organisations and/or communities?

–       Improved understanding of the trajectory and current issues of international commercial and investment treaty arbitration, as well as cross-border mediation generally, among lawyers, academic and student researchers, government and other policy-makers (including treaty negotiators) as well as the general public

–       Mentored younger and mid-career practitioners and academics in these fields

–       Created closer institutional linkages between USydney and other leading law schools for ADR (notably over 2020 the University of Hong Kong)

–       Expanded connections between academia generally and professional bodies (eg ACICA, AFIA), government (especially DFAT, including through February 2020 co-organised SCIL conference in Sydney) and international organisations (including UNCITRAL via UNCCA.org.au Fellowship and October 2020 conference (recorded) presentation, and representation on the Academic Forum for ISDS as one of only a few Australians among over 100 professors world-wide: https://www.cids.ch/academic-forum-concept-papers)

–       Helped draft and publicise new-generation Arbitration Rules for ACICA

ANJeL’s “Team Australia” Students Second in INC Negotiation & Arbitration Moot

A cross-institutional “Team Australia” is Runner-Up in the 19th Intercollegiate Negotiation Competition “in” Tokyo last weekend (but held remotely this year). The Team also won the Chartered Institute of Arbitrators Prize for the best score in the English-language arbitrations held on 14 November (applying the UNIDROIT Principles of International Commercial Contracts, but also other international instruments). Over 15 November the Team successfully negotiated a complex cross-border joint venture agreement.

This year’s Team included Stella Lee (who also competed previously in English) and Tomohiro Sato from Sydney Law School, several students from ANU (another founding core partner of the Australian Network for Japanese Law, ANJeL) and others from various law schools across Australia. Stella and Tomo joined two others in the Japanese language division sub-Team (matched against Gakushuin and Osaka Universities). There were also two sub-Teams competing in the English language division (matched against Rikkyo, Sophia, Tokyo and Chulalongkorn Universities – “Chula” joined for the first time and all but one opposing universities also ended up in the top seven, so competition over Zoom was intense). The overall winner was the National University of Singapore, competing in the English-language division.

A primary coach was CAPLUS Associate Dr Nobumichi Teramura (and a co-editor of our co-edited Kluwer book on Asia-Pacific international dispute resolution, out next month), who also helped coach Team Australia to win the competition in 2018 and come second in 2019 (pipped by the University of Tokyo). The main academic coordinator was again ANJeL Advisor and ANU Professor Veronica Taylor. My modest contributions involved some introductions to arbitration and international contracting, judging a mock arbitration by the Team, providing ANJeL funding for coaching (plus a donation) and assessing the USydney students.

Heartfelt thanks also go to Dr Carol Lawson (UNSW) and Kieran Pender (helping with coaching this year and/or previously), Peter Cleary, A/Prof Jeanne Huang (for the practice moot with me), Cara Scarpato, A/Prof Stacey Steele (UMelbourne-based ANJeL Judges Program convenor) and Huw Watkins. Partial travel funding for some LLB students was available (as last year) from the Australian government’s New Colombo Plan grant administered by ANU, but was deferred due to pandemic-related travel restrictions.

Team Australia students had to conduct all their preparations remotely across multiple universities, missing out on the usual weekend practising face-to-face in Canberra plus final sessions together in Tokyo before the weekend competition, while preparing for end-of-year course assessments. Congratulations on rising to the extra challenges!

ANJeL/JSAA “Japanese Law in Context” Podcasts Project

Overview: The Japan Foundation Sydney has provided $5000 for this project to produce and widely disseminate by mid-March 2020 a series of 15-20 video-recorded interviews or podcasts involving Japanese Law experts across Australia, Japan, North America and other parts of Asia. These recordings aim to: (a) supplement courses in Japanese Law (and Japanese Studies more generally) in universities; (b) increase community awareness and engagement with Japanese law in socio-economic and comparative context; (c) create a snapshot and oral history of Japanese Law studies – all mainly for Australia, but also for Japan and beyond.

This is a joint project between ANJeL (Australian Network for Japanese Law) and the JSAA (Japanese Studies Association of Australia). ANJeL Co-directors Profs Luke Nottage, Heather Roberts and Leon Wolff will be responsible for content planning and project coordination, while JSAA will administer funding for three former/current PhD students and Research Assistants (Ana Ubilava, Nobumichi Teramura and Melanie Trezise). Both JSAA and ANJeL will publicise the project outcomes via their websites and their own or affiliated networks.

Sydney Law School will also provide logistical support through a Canvas website for Zoom recordings (thanks to Ross West) and a video-recording/editing suite (thanks to Andy Netherington).

Project Description: The team will first schedule and conduct interactive interviews with Japanese law experts, and/or help them plan and present (one-way) podcasts, outlining distinctive features of their main field(s) in Japanese Law particularly from comparative, interdisciplinary and/or historical perspectives. Then we will edit down these recordings to around 10-15 minutes each, and upload on or via the websites of the cross-institutional ANJeL and the Japan Studies Association of Australia as well as Youtube.

These resources will be widely publicised to be used freely for Japanese Law courses taught particularly by ANJeL’s core universities (USydney, ANU and QUT) as well as others in Australia (including affiliates like UMelbourne), but the resources will also be available for Japanese or comparative law courses taught in Japan and further afield. They can be used to complement course readings, often written by interviewees/presenters, who may also be invited to join classes remotely (depending on time zones and availability). Depending on the topic area and personal preferences, the recordings will comprise interviews (sometimes involving multiple interviewers and/or interviews), or occasionally subject-matter podcast summaries or key points. Depending on the interviewees, some of whom are now more senior scholars, questions may invite more personal reflections (on how the Japanese Law sub-field or approaches to studying it have evolved) or prompt more direct comparisons with law and practice in Australia. Once edited and uploaded for public viewing, the recordings will be widely publicised through ANJeL and JSAA (each with many hundreds of members in Australia and abroad) as well as their affiliated and various websites (including this Blog), as a resource for the wider community.

The core group of those recorded will be co-lecturers in the ANJeL Kyoto and Tokyo Seminars in Japanese Law taught to students from various Australian and Japanese universities for over a decade in Japan each February, hosted by Ritsumeikan University. (Although not taught offshore next year due to the pandemic, ANJeL core and other universities will be offering Japanese Law courses onshore supplemented by resources like these.) Below under we list the 2020 Seminars’ topics and lecturers from over a dozen universities across Australia and Japan. They will be supplemented by other Japanese Law scholars in Australia (like ANJeL Advisor Prof Veronica Taylor, and UMelbourne / ANJeL Judges Program convenor A/Prof Stacey Steele), in Japan, Europe, North America and other parts of Asia – especially those with interests in Australia (like past ANJeL Visitors). We will also add a few interviews with renowned legal practitioners renowned for bilateral engagement, such as Akira Kawamura (former IBA President and USydney alumnus) and one of the past judicial officers seconded from Japan for year-long research studies (with prior approval of course from the Supreme Court of Japan). Those recordings will further broaden the potential audience, beyond academia. It is also expected that some recordings will be attractive and used for Japanese Studies courses, not just for law courses.

Potential interviewees:

(i) In a first stage, from mid-November until mid-December, the project team will schedule and conduct interviews (or otherwise invite one-way podcast recordings) focusing on the following topics and respective co-lecturers from the February 2020 Kyoto and Tokyo Seminars in Japanese Law, co-hosted by ANJeL (core institutions) and Ritsumeikan University Law School:

  1. Introduction to the Japanese Legal System

Prof. Kent Anderson (Australian National University) & Prof. Tetsuro Hirano (Ritsumeikan University, School of Law) [interviewed by A/Prof Heather Roberts]

2. Criminal Justice & Law

Prof. Makoto Ibusuki (Seijo Univ.) & Prof. Kent Anderson (ANU)

3. Politics and Constitutional Law

Prof. Giorgio Colombo (Nagoya University) & Prof. Akihiko Kimijima (Ritsumeikan University) [interviewed by A/Prof Heather Roberts and/or Melanie Trezise]

4. Civil Justice and Law

Prof. Yoko Tamura (University of Tsukuba, Law School) & Prof. Luke Nottage (The University of Sydney/ USyd)

5. Arbitration and ADR

Prof. Giorgio Colombo (Nagoya University) & Prof. Nottage (USyd)[interviewed by Nobu Teramura]

6. Working as International Attorneys in Japan:

Mr. Jiri Mestecky (Attorney at Law, Partner, Kitahama Partners) & Mr. Yoshihiro Obayashi (Partner, Yodoyabashi &Yamagami Legal Professional Corporation/ Ritsumeikan School of Law Graduate) Osaka [interviewed by Melanie Trezise]

7. Government and Law

Prof. Narufumi Kadomatsu (Kobe University) & Prof. Wolff (QUT)

8. Gender and Law

Prof. Kyoko Ishida (Waseda University) & Prof. Wolff (QUT)

9. Contracts, Consumers & Law

Prof. Kenji Saigusa (Waseda University) & Prof. Nottage (USyd)

10. Pop Culture & Law

Prof. Wolff (QUT) [interviewed by Melanie Trezise]

11. Introduction to the Japanese Economy and Corporate Governance

Prof. Souichirou Kozuka (Gakushuin Univ.) & Prof. Leon Wolff (Queensland University of Technology/QUT)

12. Labour Law

Prof. Takashi Araki (University of Tokyo) & Prof. Wolff (QUT)

13. Finance and Law

Mr. Akihiro Wani (Senior Counselor/ Morrison & Foerster) & Prof. Tetsuo Morishita (Sophia University) [interviewed by Melanie Trezise]

14. Tax Law

Mr. Justin Dabner [now retired as A/Prof @] (James Cook University) & [interviewed by] Mr. Micah Burch (USydney)

(ii) In a second stage, for recordings mostly probably over January 2021, the project team will also reach out and connect with co-organisers and past co-lecturers for some (joint or separate) recordings, thus making them feel still part of this group and more likely therefore to contribute to future Seminars or other collaborations with Australia. This cohort includes Profs Chihara Watanabe (Ritsumeikan), Noriko Kawawa (Doshisha), Tomohiro Yoshimasa (Kyoto University), Tatsuya Nakamura (Kokushikan University) and Michelle Tan (recently retired and now director of Seikyo).

Past ANJeL Visitors we may record include Profs Miho Aoi (Gakushuin), James Claxton (Rikkyo), Marc Dernauer (Chuo) and Towa Niimura (Seikei University – who also has observed the Kyoto and Tokyo Seminar classes). Among Japanese Law scholars further afield, in the USA we will approach some senior scholars in the US (Profs John Haley, Frank Upham, Daniel Foote and Mark Ramseyer) as well as some younger ones (Profs Annelise Riles, Mark West); and similarly in Europe (eg Profs Harald Baum, Dimitri Vanoverbeke and Beatrice Jazulot) as well as other parts of Asia (eg Chulalongkorn University Prof Sakda Thanitcul).  

Book in Press with Elgar: ‘International Commercial and Investor-State Arbitration – Australia and Japan in Regional and Global Contexts’

[Update: The following book will be launched by Chief Justice Allsop of the Federal Court of Australia on 17 June 2021. Its 160,000-word manuscript was published by Elgar, in February 2021, after careful kind proof-reading by James Tanna (CAPLUS student intern, 2020) and research assistance from Dr Nobumichi Teramura (CAPLUS Associate and co-editor/author in other works, eg our recent Kluwer book on new frontiers in Asia-Pacific international dispute resolution). My short video recording outlining the book can also now be viewed via Youtube at https://youtu.be/mlSJcitswX4, the introductory chapter is here, and a 35% discount order form is here. A book launch / webinar is being planned, probably for June 2021, and more details will be linked here in due course.]

Abstract: The COVID-19 pandemic has forced many international arbitrations online, potentially making the field increasingly global and informal, as arbitrators adopt more efficient procedures and experience fewer challenges. But will it last? We have seen a similar trend before, over the 1990s, reacting to concerns over growing costs and delays over the 1970s and 1980s, linked to the influx of Anglo-American law firms into the international commercial arbitration world. Yet formalisation has resurfaced over the last 10-15 years, despite arbitration’s move East and consequent globalisation, partly due to the rapid growth of treaty-based investor-state arbitration. This 12-chapter book examines how international commercial and investor-state arbitration has been framed by this evolving relationship between twin tensions, ‘in/formalisation’ and ‘glocalisation’. Interweaving historical, comparative, empirical and doctrinal research over two decades [updating and expanding several publications hyperlinked below], the book focuses on attempts by Australia and Japan to become less peripheral players in international arbitration, especially in Asia-Pacific context.

Keywords: international dispute resolution, international commercial arbitration, investor-state dispute settlement (ISDS), foreign investment (FDI), Asian and comparative law, treaty-making and law reform processes

Special features: The book (1) combines analysis of both international commercial and investment treaty arbitration, (2) using mixed methods (historical, comparative, empirical and doctrinal research), (3) presenting the first detailed comparison of Australia and Japan, (4) drawing implications for their stakeholders as well as post-pandemic arbitration.

Endorsements:

‘This important work by an eminent scholar in the field of international commercial arbitration provides a valuable opportunity to step back from day-to-day events and experiences and view them from the perspective of an analytical framework, enabling important trends, policy issues and principles to be identified. Combining intellectual academic rigour with practical applications and illustrations of the principles discussed, the author draws upon empirical research and established trends to predict likely developments in arbitration in a post-pandemic global economy.’
– Wayne Martin AC QC, Francis Burt Chambers and former Chief Justice of Western Australia

‘This is a much-awaited book that illuminates international arbitration perspectives, policies, and practices of two major economies in the Asia-Pacific region. Particularly, perhaps reflecting the relative paucity of ISDS cases involving Japanese investors or the Japanese government, there is a general paucity of prior scholarship on Japan’s ISDS approaches, and this book fills this gap. At a time when ISDS is at a crossroads, the author’s acute analysis of state practice and policy formation based on analytical frameworks of “localised globalism” and “in/formalisation” provides invaluable guidance for domestic and international policy-makers, private practitioners, and academics.’
– Professor Tomoko Ishikawa, Nagoya University, Japan

‘Cross-border dispute settlement in the Asia-Pacific has grown increasingly complex and dynamic in recent years. In this book, one of our keenest observers of the region traces evolving developments in Australia and Japan, examining the trajectories of commercial and investor-state arbitration within a common framework. We could have no better guide to the shifts, stops and starts that have characterized this evolving field of law and practice.’
– Professor Tom Ginsburg, University of Chicago Law School, USA

Chapter 1. In/formalisation and Glocalisation Tensions in International Arbitration

Abstract: This introductory Chapter outlines the trajectory of two growing fields of cross-border dispute resolution – international commercial arbitration (Part I of the Book) and international investment treaty arbitration (Part III) – as well as some crossovers (Part II). Australia and Japan, bearing important similarities in both fields and a few significant differences, are examined in Asia-Pacific and global contexts. An evolving and complex tension emerges between more formal versus informal approaches within international arbitration (‘in/formalisation’) and between globalisation and national or local circumstances (‘glocalisation’). International arbitration was first quite informal yet global, then became more formalised under growing influence of the common law tradition. It then saw some pushback towards more informal (or at least speedier) arbitrations amidst further globalisation over the 1990s, a tendency now re-emerging amid the COVID-19 pandemic. Yet the last 10-15 years have seen resurgent costs and delays, which could well resurface.

Part I: International Commercial Arbitration in Japan and Australia

2. The Vicissitudes of Transnational Commercial Arbitration and the Lex Mercatoria: A View from the Periphery

Abstract: This Chapter outlines two important empirical studies from the 1990s, setting an historical and theoretical benchmark for assessing the past and future of international arbitration. Those highlighted a growing formalisation of international commercial arbitration’s over the 1970s and 1980s, influenced by growing influence from Anglo-American legal practice. Yet this Chapter finds some pushback by the late 1990s towards more informal and global approaches. It also highlights further historical contingency by outlining Japan’s attempts around then to revamp its arbitration law. Although that was partly aimed at meeting the evolving international standard, epitomised by the UNCITRAL Model Law, it was part of a much wider justice reform program over 1999-2004 focusing primarily on domestic dispute resolution. Such ‘localised globalism’ contrasts with Japan’s efforts from 2018 to promote itself as another regional hub for international arbitration (outlined in Chapter 4), which therefore instead suggest more ‘localised globalism’.

3. The Procedural Lex Mercatoria: The Past, Present and Future of International Commercial Arbitration

Abstract: The substantive lex mercatoria (international contract law) is showing signs of growing formalisation. Similarly, international commercial arbitration law and practice – as the procedural lex mercatoria – became increasingly formalised over the 1980s. However, during the 1990s there was some shift back towards more informalism (especially to regain the advantage of speedier proceedings compared to cross-border litigation) as well as more global solutions to major issues arising in the arbitration world. This is illustrated by outlining developments across thirteen key ‘pressure points’ in international commercial arbitration law and practice, covering hot topics related to the arbitration agreement, arbitral procedure, award enforcement, and overarching issues. The Chapter indicates scope for further and more consistent developments towards restoring globalised and informal approaches. Yet it leaves open the possibility of international arbitration reverting to greater formalisation – in fact found especially over the last 10-15 years (as illustrated in Part II of this Book).

4. Japan’s Arbitration Law of 2003: Early and Recent Assessments

Abstract: Japan’s Arbitration Act 2003 was part of justice system reforms focused on domestic dispute resolution, although based on the UNCITRAL Model Law. The Act left few major interpretive issues, and created scope eventually to enhance international arbitration in Japan. Yet neither type of cases has grown significantly. There were also significant continuities evident from the persistent use of Arb-Med to promote early settlement during arbitrations. The stagnation in annual arbitration filings cannot be linked to adverse Japanese case law. That developed in an internationalist, pro-arbitration spirit, evident through a comparative analysis for example with Australian case law. Other institutional barriers to arbitration remain, despite Japan’s new initiatives since 2018 demonstrating ‘localised globalism’. General, organisational and legal culture in Japan will likely keep mutually reinforcing economically rational motivations helping to curb costs and delays in dispute resolution, even as Japan now seeks to promote international arbitration through updated global models.

5. International Commercial Arbitration in Australia: What’s New and What’s Next?

Abstract: Not much had changed by 2013, after Australia amended in 2010 its International Arbitration Act 1974, incorporating most of the 2006 revisions to the UNCITRAL Model Law. There was no evidence yet of a broader anticipated ‘cultural reform’ that would make international arbitration speedier and more cost-effective. One dispute engendered at least five sets of proceedings, including a constitutional challenge. Case disposition statistics for Federal Court cases decided three years before and after the 2010 amendments revealed minor differences. Various further statutory amendments therefore seemed advisable to encourage a more internationalist interpretation. However, an updated analysis notes only a few minor revisions. There remains a significant step-up in annual cases filed under the Act, and some improved Federal Court case disposition times only since 2017. Despite generally more pro-arbitration case law, challenges remain in pushing international arbitration in Australia towards a more informal (especially time- and cost-effective) and global approach.

Part II: Crossovers from International Commercial to Investor-State Arbitration

6. In/formalisation and Glocalisation of International Commercial Arbitration and Investment Treaty Arbitration in Asia

Abstract: International (commercial) arbitration has experienced a dramatic diffusion from West to East, but ‘in/formalisation’ and ‘glocalisation’ tensions endure. Empirical research shows that delays and especially costs have been escalating world-wide, reflecting and promoting formalisation. This is not just due the growing volume and complexity of deals and disputes. It parallels a dramatic worldwide expansion of international law firms, and large home-grown law firms emerging in Asia. Confidentiality in arbitration exacerbates information asymmetries, dampening competition. Such developments are particularly problematic as large law firms have moved into investment treaty arbitration. Yet moves underway towards greater transparency in that burgeoning and overlapping field could eventually help reduce some of these problems. Somewhat ironically, they are likely to persist in the world of international commercial arbitration despite the growing concerns of users themselves, including a new wave of Asian companies that have started to resolve commercial disputes through international arbitration.

7. A Weather Map for International Arbitration: Mainly Sunny, Some Cloud, Possible Thunderstorms

Abstract: This Chapter helps anticipate the future trajectory of international arbitration by first revisiting how Anglo-American influence over the 1970s and 1980s contributed to the formalisation of international arbitration, generating costs and delays. Over the 1950s and 1960s, many cases involved investment disputes with host states, yet the normative paradigm was more global and informal. Despite arbitration’s ‘move East’ over the last 20 years, formalisation of international commercial arbitration persists, linked to information asymmetries. Investment treaty arbitration may exert counterbalancing influence, through its greater transparency. Yet it risks promoting even greater formalization, and there are serious doubts about its long-term viability, including in Asia. The main theoretical underpinning for international commercial arbitration has settled into a variant of ‘neoclassical’ theory in contract law, with some recent arguments for even greater formalisation, but investment treaty arbitration opens the possibility for more theoretical diversity and therefore debate about international arbitration’s foundations and future.

8. Confidentiality versus Transparency in International Commercial and Investor-State Arbitration in Australia and Japan

Abstract: Confidentiality is still widely seen as significant advantage of international commercial arbitration over cross-border litigation, especially in Asia. This is evident in most arbitral rules, and many arbitration statutes – including eventually in Australia. Yet no confidentiality is provided in Japan’s later adoption of the Model Law, although parties mostly choose local arbitral institutions so opt-in to their Rules, which have somewhat expanded confidentiality obligations since 2014. Another recent complication is growing public concern over arbitration procedures through (especially treaty-based) investor-state dispute settlement, particularly in Australia. Statutory amendments in 2018 reverse automatic confidentiality for Australia-seated arbitrations applying the 2014 UNCITRAL Transparency Rules. Yet such concerns may impede enactment of provisions extending confidentiality to court proceedings involving commercial arbitrations. Confidentiality could allow more informal and efficient arbitrations, but exacerbate information asymetries allowing service providers increase costs. Greater transparency is more justified (and increasingly found) in investment arbitration, implicating greater public interests.

Part III: International Investment Treaties and Investor-State Arbitration

9. Throwing the Baby with the Bathwater: Australia’s 2011-13 Policy Against Treaty-Based Investor-State Arbitration

Abstract: Treaties allowing investors to initiate arbitration claims directly against host states, for illegally interfering with cross-border investments, are increasingly common in Asia. Yet a centre-left government declared over 2011-2013 that Australia would no longer include such protections in future treaties. This risked undermining the entire investor-state arbitration system, and major then-pending treaty negotiations by Australia with Japan, China and Korea, significantly reducing FDI flows and having other adverse effects. This Chapter criticises the underlying cost-benefit analysis conducted in 2010 by an Australian government think-tank. The arguments and evidence are more nuanced, justifying more tailored and moderate changes for future treaties. Yet an interest-group analysis suggests surprisingly few public or private constituencies preferring such reforms, and the problem could spread around Asia. A sharp shift would indicate a more idiosyncratic, nation-centric rather than global approach, but with somewhat mixed effects regarding formalisation of the overall international arbitration field.

10. Investor-State Arbitration: Why Not in the Japan-Australia Economic Partnership Agreement?

Abstract: Japan signed a bilateral Free Trade Agreement with Australia in 2014, notably omitting investor-state dispute settlement (ISDS). Japan seems not to have offered enough to secure this extra protection for its firms’ investments in Australia, for the latter to risk domestic political controversy. Japan probably also hoped to obtain the protection through a mega-regional treaty– in fact achieved from 2019. The omission should also be understood in the wider context of Japan’s investment treaty practice. That was initially belated and flexible, but has become more pro-active since 2013. Japan’s practice overall presents another example of ‘localised globalism’. Japan’s treaties have also become more formalised as they have adopted more consistently US-style drafting since 2002 (like Australia). This greater detail may perversely result in to more costs and delays if and when the mostly ISDS-backed treaty provisions are invoked. Yet there are few claims formally pursued by Japanese investors, and none yet filed against Japan.

11. Investor-State Arbitration Policy and Practice in Australia

Abstract: Australia has investment treaties in force with 32 economies, all with investor-state dispute settlement (ISDS), except regarding New Zealand and the USA. Yet ISDS only started being debated politically as Australia signed its FTA with the US in 2004, and particularly around 2011 when a mega-regional treaty was being negotiated and Philip Morris Asia brought the first ISDS claim against Australia over tobacco controls. A centre-left Government over 2011-13 eschewed ISDS for future treaties, but centre-right governments reverted to allowing it on a case-by-case assessment, and the Greens’ ‘anti-ISDS’ Bill went nowhere. The debate belatedly raised awareness of how Australia’s domestic law provides some lesser investment protections than under international law. More bipartisanship has been emerging since 2019. Australia may therefore keep reverting to a more globalised approach towards ISDS, while continuing to target reforms that can reduce formalisation, particularly in the form of ISDS-related costs and delays.

12: Beyond the Pandemic: Towards More Global and Informal Approaches to International Arbitration

Abstract: Overall, this Book traces the trajectory of both international commercial arbitration and investor-state arbitration, especially since the 1990s, focusing on Australia and Japan in regional and global contexts. It demonstrates the usefulness of the dual themes or vectors of ‘in/formalisation’ and ‘glocalisation’ for understanding the past and for assessing future developments in international arbitration. Part I of this Chapter considers the longer-term impact of the COVID-19 pandemic from 2020. It speculates about the future for the observed proliferation of webinars, and the pandemic’s push towards virtual hearings or e-arbitrations, as well as further diversification of arbitral seats – including potentially for Australia and Japan. Part II ends more normatively with recommendations for more productive cooperation, bilaterally but also regionally, among academics, lawyers and arbitrators, judges and governments. It identifies key Asia-Pacific organisations and opportunities for promoting a global and somewhat more informal approach to international arbitration into the 21st century.