Category: Australia-Japan Relations

“The Interface of Inquests and Consumer Law and Policy: 2021 NSW Coronial Inquest Findings into the 2017 Death of a Honda Driver from a Takata Airbag”

Abstract: A coronial inquest is an inquisitorial fact-finding investigation into causes and manner of deaths that are eg violent, unusual, or from unknown causes. The coroner may also make recommendations to improve health and safety related to the death investigated.[1] Sometimes such inquests attract considerable media and public attention, although usually not as much as say a royal or other commission of inquiry. As such, inquests could influence the implementation or enactment of consumer product safety law. Yet there is very little research into this interface. An interesting recent case study comes from a New South Wales coronial inquest over 2019-2021 into a tragic death in July 2017 associated with Australia’s largest-ever vehicle recall, which uncovered poor practices by the manufacturer (Honda Australia) as well as the regulators.

The recall ultimately involved 3 million vehicles in Australia originally affected due to defective airbags manufactured by Japanese firm Takata, which started to explode and kill or injure drivers abroad from 2015 and ended up being subjected to a mandatory recall order issued in February 2018 by the Australian Competition and Consumer Commission (ACCC). By March 2021 the ACCC reported that these 3 million vehicles had been successfully recalled by manufacturers, although: “around 312,000 vehicles have been deemed to be compliant with the recall although they have not had their airbags replaced … vehicles which have been scrapped, stolen or unregistered for more than two years, or where consumers did not respond or were not contactable after repeated contacts through different channels. Globally, these Takata airbags have been associated with over 350 serious injuries and 33 deaths. This includes one death in Sydney in July 2017 and one serious injury in Darwin in April 2017. Two injuries were also reported following an accident in Sydney in August 2020.”[2]

Many problems had been increasingly highlighted by local media and consumer experts or groups[3] concerning the Takata airbag recalls process in Australia. There were also some media reports towards the start[4] and during some hearings[5] of the NSW coronial inquest into the death of Mr Huy Neng Ngo in July 2017, killed by a Takata airbag that had still not been replaced by Honda Australia.[6] Curiously, however, there has been almost no media reporting of the findings and recommendations for avoiding further deaths, released on 19 November 2021 by NSW Deputy Coroner, Magistrate E. Truscott.[7] I became aware of the extensive report recently as I had been asked by the NSW Crown Solicitors’ Office in mid-2019 to provide a witness statement to the inquest. Essentially, the report finds that the specialist regulator (DIRD transport ministry) but also the ACCC were rather asleep at the wheel in scrutinising Honda Australia’s inadequate recall notices sent out from 2015 until his death. Regulators should have done more and earlier, partly due to failures in inter-agency coordination. They and Honda Australia only seem to have started lifting their game after Mr Ngo’s death, the first in Australia.

* * *

After submitting my written statement, I was not called for oral examination at the inquest. However, the inquest findings (at pp149-53) show how I had alerted senior ACCC officials back in late 2015 that Honda Australia was sending out recall notices that I considered misleading by only referring vaguely to a “precautionary” recall and without highlighting the serious risks, even though by that stage some like myself knew that Takata airbags had caused multiple injuries and deaths abroad. (By chance, I had been following the Takata recall saga abroad as part of my longstanding research in comparative consumer product safety law and practice, and had purchased a second-hand Honda so when I got these recall letters from Honda Australia I realised they were problematic.) The deputy coroner noted eg (at p188-9):

“… The content of the consumer recall letters at least until March 2017 effectively failed to convey to the consumer the importance of the need to replace the airbag. The recall strategy failed to bring to the attention of the consumer the risk or danger that the airbag posed. That this approach continued well past the publication of the Blomquist report and that none of Honda Australia, DIRD or the ACCC sought to widen the recall strategy at this time is regrettable. Moreover, as already discussed at paragraphs [256]-[286], it is regrettable that Honda Australia, which had the primary responsibility for its voluntary campaign, did not identify that it should change its consumer recall letter and strategy well before March 2017.

645. It was a failure that the ACCC did not itself or seek DIRD to intervene in Honda Australia’s campaign approach when the opportunity arose, such as in 2015 with the NRMA and Professor Nottage communications or indeed [from 2016] in the Takata Airbag Working Group meetings.”

It was only a month after Mr Ngo’s death from the exploding Honda airbag that (pp 202-203):

“… in August 2017 the ACCC reviewed manufacturers’ language in recall notices on the PSA website, as well as more broadly in consumer communications, and took steps to develop model language to be used in connection with voluntary recall measures for Takata airbags. Although, at this point, there was not yet any compulsory recall on foot, Mr Grimwade [from the ACCC] said that “we took it upon ourselves to ensure that the language on our website was reflecting the risks as we understood them, and as they were emerging in the investigation”. Mr Grimwade accepted that ACCC officers could have, prior to 13 July 2017, usefully exchanged views in relation to the text to be used in Takata recall notices, in the manner in which they did in August 2017. He agreed that this “should have been done”.

688. Mr Grimwade’s expression that the ACCC took it upon themselves to conduct this review is somewhat odd given that he said there was no lack of clarity by the ACCC as to whose responsibility the PSA [Product Safety Australia] website was – the ACCC had sole responsibility for it at all times.

689. That the 5ZV recall used the term “precautionary” in its language on the website in the first place but continued to do up until this review is concerning as there were numerous occasions which should have or at least could have given the ACCC cause to conduct such a review, namely: (i) the 2015 NRMA letter; (ii) the late 2015 Professor Nottage correspondence; (iii) the Blomquist report [for US regulators] and NHTS orders in May 2016; (iv) the April 2017 injury causing the Toyota misdeployment in the Northern Territory together with (v) the ACCC participation in the Takata Airbags Working Group meetings from June 2016 and (vi) its close working relationship with DIRD.

690. On 5 August 2017, following receipt of responses from affected vehicle suppliers, the Minister for Small Business, Michael McCormack, issued a “Safety Warning Notice to the Public” under s 129(1) of the ACL, regarding possible risks of using motor vehicles containing Takata airbags.1037 The Safety Warning Notice warned of possible risks involved in the use of motor vehicles containing Takata airbags supplied in Australia, urged consumers to check whether their vehicle had been included in a product safety recall and advised that the ACCC was investigating whether vehicles with Takata airbags will or may cause injury.1038 Mr Grimwade advised that the purpose of a safety warning notice such as this is to “bring attention to a particular hazard through the [M]inister” and that “used sparingly… they can get quite a lot of publicity and indicate the views of government in relation to a particular hazard”.1039

691. Mr Grimwade accepted that there was an opportunity, prior to 13 July 2017, for the Minister to issue a Safety Warning Notice – such as that ultimately issued on 5 August 2017 – in respect of the risks posed in relation to the voluntary recalls of Takata airbags.1040 He accepted that there was a missed opportunity on the part of the ACCC, prior to 13 July 2017, to make a recommendation to the Minister to issue a safety warning notice in relation to the Takata airbag recalls.1041

692. If the ACCC was waiting for a risk to materialise to justify a sparingly used strategy to bring to public attention the need to respond to a recall of Takata airbags, the most obvious time that the ACCC should have approached the Minister to issue a Safety Warning Notice was in April 2017 following the Northern Territory injury.”

Some more specific findings by the deputy coroner were as follows:

1. Was there a lack of clarity and substantial confusion between ACCC and DIRD as to their respective roles in the monitoring of the Takata airbags voluntary recalls generally and specifically in regard to the 5ZV recall

Essentially yes, in that eg despite an inter-agency MoU “the ACCC did not know that DIRD did not have any process of its own in regard to the suppliers’ recall strategies nor did it know that the suppliers were not submitting their recall strategies to DIRD” (para 727). Furthermore (at p219), the coroner did not accept:

“the ACCC submissions that the ACCC had no basis to challenge or question Honda Australia’s description of the defect, hazard and risk contained in the 5ZV recall notification. It should have sought to clarify whether the defect would have the same effect and risk as other Takata airbag defects – namely the “inflator rupture causing metal fragments” to strike a vehicle occupant. Without clarifying whether the 5ZV recall involved the same hazard as then known to exist with the previous recalls, given there was no evidence suggesting that there was some other hazard, it would seem that the ACCC, DIRD and the suppliers proceeded on the basis that it was the same hazard but because the recall was classified as “precautionary” or “preventative” the hazard wasn’t appropriately described. That it was not clarified or corrected resulted in a failure to ensure that the public was adequately warned of the dangers of the defective airbags. Likewise, as previously discussed, Honda Australia failed to make due inquiry with Honda Japan in this regard though appeared to be aware that Honda Japan was using the terms preventative and precautionary as discussed above.

734. Counsel Assisting’s phrase of “lack of clarity” or “substantial confusion” is a measured term and the submissions advanced by DIRD and the ACCC demonstrate rather than diminish the disparity between the ACCC and DIRD as to their understanding of their respective roles and responsibilities when there is ample evidence that such disparity existed.”

… 3. Should DIRD and the ACCC have directly raised with Honda Australia that its consumer recall letters should not include tentative language such as “preventative measure” and “precautionary action” and that the letters did not clearly refer to the nature of the defect and the risk of death or injury in 2015 and 2016.

4. Should DIRD have sought from Honda Australia the 5ZV consumer recall letters.

Again, yes (p 211):

“… DIRD should have obtained at least one of the 5ZV recall letters by following up the request made in August 2015 or preferably by specifically making a new request for the 5ZV recall. Had DIRD received the 5ZV recall consumer letter/s, it appears unlikely that DIRD would have identified and taken action in respect of the issues which were concerning to Professor Nottage in late 2015 or indeed Mr Thomas in mid-2015 in relation to the letter he received for his own Honda vehicle. Those issues should have identified and been formally raised with Honda Australia. Again, whether DIRD would have done so had it obtained a copy of the 5ZV consumer letter is questionable given its position as to DIRD’s limited role and function. At the least it should have identified that the defect and risk were inadequately described in that it did not mention that metal fragments could cause injury or death to a vehicle occupant.

741. Likewise, the issues raised by Professor Nottage in 2015 should have been formally raised with Honda Australia by the ACCC or by DIRD at the request of the ACCC. There was no process in place for DIRD to be tasked with raising it directly with Honda Australia. Raising it generically in a TAWG meeting was, in the circumstances, inadequate.”

5. Should, prior to July 2017, the ACCC and/or DIRD have taken steps to publicise the risks posed by defective Takata airbags by way of its own media announcement or by co-ordinating a media campaign with the industry.

Yes (at p222-3), with the deputy coroner accepting:

“counsel for the ACCC and DIRD’s submissions that it was for the suppliers to co-ordinate and promote an advertising campaign, and though the ACCC and DIRD could encourage a wider campaign, neither agency had power to compel one. However, rather than adopting a reactive media posture which on one view could be thought to resemble a reluctance to publicise the Takata recalls, both agencies could have adopted a pro-active media posture on their own accord as well as encouraging industry, and in this case Honda Australia specifically, to engage in a public campaign.

749. Whilst the recall was voluntary and neither agency had powers to compel the industry to adopt such a strategy (in the absence of any compulsory recall then having been commenced), a supplier’s refusal or failure to engage in such a campaign strategy could have been an escalation criteria [sic] by which the agencies could measure the progress of the recall, and which may have motivated industry to engage in such a campaign. Advertising campaign aside, the MOU allowed for the joint settling of media releases issued by the ACCC or DIRD. The only media release that was prepared related to what would be issued in the event of a misdeployment event, rather than considering how the government could bring the recalls to the attention of the Australian public, for the sake of the public safety, in advance of any such incident. As Professor Nottage wrote to Mr Ridgeway at the ACCC at the end of 2015, a government media release incurred no cost. There is no good reason why DIRD and the ACCC failed to issue such a release. Likewise, there was no good reason why Honda Australia failed to do so, particularly given the scale of the recall. 

8. If the ACCC or DIRD had not missed the opportunities to bring the defect and risk of the Takata airbag to public notice, is it likely the Ngo/Chea vehicle airbag would have been replaced earlier thus preventing Mr Ngo’s death

Yes (pp225-6):

“…Ms Chea and her family did not know about the Takata airbag recall and when in March Ms Chea did learn of it having collected the registered letter, she had, within the week, booked the vehicle into Peter Warren’s service department for recall replacement. Had she learned of the defect earlier, it would appear that she would have made an earlier appointment. Likewise, had Julie Ngo been aware of the risk of the defective airbag she would have likely insisted that it be replaced on 11 July 2017. Whilst it is not possible to conclude that any action or inaction of the government agencies did contribute to Mr Ngo’s death, it is likewise not possible to conclude any action or inaction on their part did not contribute to Mr Ngo’s death.

757. Counsel for DIRD point out that Ms Chea says that she only received the March 2017 letter. That is the one she responded to. That letter had a clearer content consistent with the Blomquist Report and correctly identified the defect, hazard and risk. Had that information been contained in an earlier letter and received by Ms Chea or a family member then it is likely the Vehicle would have been booked in at an earlier time. Had there been public announcements then other persons who had received the earlier letters may have been able to identify the importance of the recall and brought it to Ms Chea’s attention.

758. As is apparent from the foregoing responses, I agree with the position advanced by Counsel Assisting. I make the finding that due to a lack of clarity and at times substantial confusion as to the respective roles of DIRD and the ACCC, together with the lack of a documented escalation process against which to monitor and advance the progress of the recall, the ACCC and DIRD inadequately administered and monitored the Takata Airbag voluntary recalls during the period July 2015 to July 2017. The inadequacy particularly arose in that there was a failure to ensure that the defect and hazard of the Takata airbag subject to the Honda Australia 5ZV recall was properly described to the Australian public on the ACCC’s PSA website, in the Honda Australia letters to consumers, or by Australian public media broadcasts in a timely and adequate manner.”

In conclusion, the deputy coroner added multiple recommendations for better monitoring of vehicle recalls in future (p226 et seq), in the context of some legislative reforms already underway.

* * *

Despite these quite critical findings and recommendations in November 2021, as of early May 2022 there seem to be no Australian newspaper reports on them, although there was some other Takata airbag fatality news in mid-2021.[8] Perhaps the lack of mainstream Australian media reporting on the inquest findings is because Mr Ngo’s death is sadly considered “old news”, and other fatalities or accidents are more widespread or vivid (especially after several years of deaths and disruption caused by the COVID-19 pandemic). Yet it seems important that government officials and regulatory systems are held to account, and that lessons are learned and communicated from careful inquiries like inquests in order to improve consumer product safety law and practice.

Indeed, an article published online on 9 December 2021 by a smaller journalistic outlet reported that a former ACCC official allegedly lost his job in 2018 after some of his concerns went public that the Commission was not doing enough about the Takata recall:[9]

“… Three years ago an anonymous Australian Competition and Consumer Commission (ACCC) official was frogmarched out of his office — and later threatened with criminal action — after internal emails became public via a television exposé on the Takata airbag scandal.

The official was concerned the ACCC had not reacted quickly enough on the threat to public safety of the potentially deadly airbags and used its powers only after a driver was killed by shrapnel from an exploding airbag which penetrated his neck, causing him to bleed to death.

Now a coroner’s hearing has confirmed that many of the official’s warnings were on the mark. 

For one thing it means the official feels confident about revealing his identity. His name is Dean Wright. He held a senior executive level position as assistant director of the ACCC’s product safety branch and he was 52 at the time.”

“I am entirely comfortable with what I did,” Wright told Crikey. “I felt I had no choice.

“I don’t regret my part in revealing the truth about the years of dithering. I’d like to believe that the coronial court’s recommendations will save lives and prevent further horrific injuries.”

Does he feel he is owed an apology? 

“Yes. That would be the right thing to do, but more to the point the ACCC owes the public an apology for not being truthful.”

…

The ACCC said it did not propose to comment on Wright’s “actions or opinions”. It also said it had “identified and implemented a number of lessons drawn from the inquest” before the coroner’s report was released and was working on others.”

Meanwhile, perhaps in the light of the inquest, a class action brought in the NSW Supreme Court against Honda, Toyota, Subaru, Nissan, Mazda and BMW reached a mediated settlement in September 2021 for A$52m (including $15m for the plaintiffs’ lawyers!). A specialist media outlet report noted furthermore that:[10]

“In August, the Australian Competition and Consumer Commission (ACCC) launched legal action against Mercedes-Benz, accusing it of minimising the risk of serious injury of death from the faulty Takata products. The ACCC alleges Mercedes-Benz staff downplayed the risks “on at least 73 occasions,” stating the recall was precautionary in nature and “there had been no incidents, accidents, injuries or deaths … at all,” despite there already having been one fatality in Australia at that time and one serious injury recorded.”

The saga therefore continues, so there may still be scope for the wider public to learn what really went on from the Takata airbag debacle, and the lessons that can be drawn more generally for consumer law and policy in Australia and beyond. There have been longstanding concerns particularly about Australia’s lack of clarity and impact of the law on recalls (and mandatory accident reporting) and insufficient coordination or leadership from the ACCC and state/territory regulators vis-a-vis specialist regulators (as pointed out eg in 2013, prompted by a problem reported regarding Volkswagen – even before its fake diesel emissions disclosure scandal).

[1] For background into the NSW law and practice around appearing in coronial inquests, see eg https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwiBzo2WzdH3AhUiyzgGHT86AZUQFnoECAQQAQ&url=http%3A%2F%2Fwww5.austlii.edu.au%2Fau%2Fjournals%2FNSWBarAssocNews%2F2014%2F12.pdf&usg=AOvVaw30yvr7BIPzuS0Gx25wPu3D

[2] https://www.accc.gov.au/media-release/car-manufacturers-complete-999-per-cent-of-takata-airbag-recall

[3] See eg https://www.choice.com.au/transport/cars/general/articles/unprecendented-mandatory-recall-takata-airbags-280218

[4] https://www.sbs.com.au/news/article/nsw-inquest-into-death-of-sydney-driver-to-examine-takata-airbag-risks/n4kk69rs4 and https://www.abc.net.au/news/2019-09-23/faulty-takata-airbag-coroner-inquiry-death-cabramatta-man/11538628

[5] https://www.theguardian.com/business/2020/jun/22/regulators-knew-of-two-takata-accidents-before-a-sydney-mans-death-inquest-told

[6] https://www.smh.com.au/national/nsw/faulty-airbag-at-centre-of-recall-to-blame-for-death-of-sydney-man-20170721-gxg5yj.html

[7]  https://coroners.nsw.gov.au/coroners-court/download.html/documents/findings/2021/Inquest_into_the_death_of_Huy_Neng_Ngo_-_Findings.pdf via https://coroners.nsw.gov.au.

[8] https://www.dailytelegraph.com.au › nsw › news-story: 3 June 2021 — “The ACCC has found a third Australian was killed by a Takata airbag, raising questions about why there was not a coronial inquest.”

[9] https://www.crikey.com.au/2021/12/09/accc-whistleblower-vindicated-steps-out-of-shadows/

[10] https://www.whichcar.com.au/car-news/takata-lawsuits-in-nsw-settled-by-major-car-companies-for-52-million

ANJeL Team Australia runners-up again in Tokyo moot competition!

The cross-institutional Team Australia has put in a great effort to come 2nd overall again at the 20th Intercollegiate Negotiation Competition held (remotely) “in” Tokyo. Pipped by the National University of Singapore, but ahead of the University of Tokyo. Well done also to Chulalongkorn University, where USydney also has close links, for coming fifth overall.

Congratulations to our law students Hasan Mohammad (who also won the ANJeL Akira Kawamura Prize for the Sydney Law School Japanese Law course last semester) and Sarah Tang (completing our International Commercial Arbitration course this semester)!

The teams from Japan and abroad hone and display skills in arbitrating disputes applying the UNIDROIT Principles of International Commercial Contracts, as well as negotiating and documenting a complex cross-border joint venture agreement. Team Australia won the Squire Patton Boggs prize for the best performance in the English-language round (also in 2018, when the Team came first), and won the ANJeL Prize for Teamwork (also won in 2019, when runners-up overall – as in 2020).

Terrific achievement given the extra stresses of lockdowns and other challenges for this year’s Team Australia students, mainly from USydney and ANU, as well as the difficult end-of-year timing. Unlike last year, Team Australia students were unable to meet in Canberra for a training weekend.

Many thanks for support from past mooters / graduates including our Stephen Ke, CAPLUS associate and former SLS RA / tutor Dr Nobumichi Teramura (now Assistant Professor at UBrunei), and especially coach and ANJeL advisor Prof Veronica Taylor from ANU. DFAT has also committed “New Colombo Plan” travel funding that we hope will become available next year so our students can compete in person in Tokyo.

More information can be found at https://www.teamaustralia-inc.net/ and https://www.negocom.jp/eng/.

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

Written by: Joseph Black (CAPLUS law student Intern, 2021) [with updates from Prof Luke Nottage]

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 [recorded here] 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. [Comparing developments in Japan with China, Indonesia and Malaysia, as part of an ANJeL/CAPLUS/CAPI (UVic) webinar around Prof Victor Ramraj’s edited book on COVID-19 in Asia, see the 28 May 2021 webinar recording here.]

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 [but rather like eg Sweden] 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

[Updates: This 12-chapter Intersentia book in the International Academy of Comparative Law congress series, examining 13 diverse jurisdictions including Japan and Australia, Luke Nottage and Makoto Ibusuki (eds) Comparing Online Legal Education: Past, Present and Future (Intersentia, June 2023) will be launched kindly by NSW Chief Justice Andrew Bell on 3 August at Sydney Law School. The book project was supported by the University of Wollongong’s Transnational Law and Policy Centre as well as ANJeL and Sydney Law School.

As background, IACL Deputy Secretary-General Dr Alexandre Senegacnik kindly interviewed/recorded me about the key findings of this IACL series book to listen to or download at https://cafecomparatum.podbean.com/ (17 August 2022). With presentations also by some chapter / jurisdictional report authors, CAPLUS with others hosted on 1 February 2022 a related webinar focusing on “Asia-Pacific Online Legal Education Before and After the COVID-19 Pandemic”, with a video recording later uploaded on Youtube – click here.] In addition, some research assistance for this book project has been funded through the University of Wollongong’s new Transnational Law and Policy Centre, which is also supporting that webinar and was the main host for another webinar on 15 June 2022 covering several further jurisdictions. I also presented my draft General Report at Griffith University Law School on 10 August 2022.]

Together with past ANJeL Visitor and Program Convenor (ANJeL-in-Japan), Seijo University Professor Makoto Ibusuki, I have been appointed General Reporter by the venerable International Academy of Comparative Law for a project comparing “Online Legal Education” across around 20 jurisdictions world-wide, including Australia and Japan. Draft jurisdictional Reports will be received by January 2022 so we can draft our General Report, summarising key findings, to be presented at the four-yearly IACL Congress – this time hosted over 23-28 October 2022 in Asuncion (Paraguay). We plan then to co-edit a book in the IACL’s book series previously published by Springer and henceforth by Intersentia.

We hope to get and share insights into how online (university or other) legal education interacts with each jurisdiction’s legal profession, university system, and ICT infrastructure, as well as how online legal education has developed both before and after the COVID-19 pandemic. Below is the draft “questionnaire” we provided to guide (but not dictate to) Reporters preparing their chapters, and the current list of jurisdictions and Reporters nominated by IACL national committees. We welcome feedback on other questions or angles on this practically important and theoretically interesting topic for comparative research. Here on SSRN is our draft General Report elaborating on this framework and summarising Special Reports from the various jurisdictions, and here is Nottage’s detailed audio-visual recording of that General Report (almost 1 hour .mp4 video / powerpoint presentation).

  • A. Background: Legal Profession, University and IT Systems Generally
    • Who are the main “gatekeepers” to the legal profession (cf Anderson & Ryan, 2009)? Does its corresponding size and nature make it generally harder or easier to move (university/qualifying or continuing) legal education online?
      • The existing legal profession (eg like Japan: bengoshi lawyers, negotiating with the Ministry of Justice and courts): tends to result in smaller legal profession, but still many other LLB graduates (not qualified as lawyers)
      • Universities (eg like Australia previously or now NZ: LLB and JD graduates can almost all qualify as lawyers, as they they need to just complete a short easy practical training course, so the numbers of law students allowed into universities – by the government as in NZ, or by universities themselves since 2011 in Australia – determines the size of the legal profession): tends to result in a larger legal profession
      • The market (eg like USA: as there are so many accredited law schools, and state bar exams are easily passed at least after a few attempts, so the numbers of lawyers is really determined only by whether students think they will be able to get a job as lawyer after graduating): tends to result in the largest legal profession
    • How are universities (and law schools) generally funded? Does this make it harder or easier to move legal education online?
      • Eg universities in Australia: growing dependence on international student revenues, including more recently in law – many are non-native English speakers (eg from China), so may be more difficult to move effectively their legal education online
      • Cf universities in Japan: still much lower international student proportions, especially in law; correspondingly more emphasis on research, so maybe easier to move online
    • How widespread is access to good-quality and affordable IT hardware (computers etc) and software (including internet access), among university students/teachers and legal professionals?
      • Eg in Australia: quite good for both groups, making it again easier to move university/qualifying & continuing legal education online
      • Cf in Japan: quite good for lawyers but less so for judges/courts, variable for university teachers, quite bad for many university students
  • B. Moves Towards Online Education:
    • Summary achievements before the pandemic, in light of the above background
      • University and/or qualifying legal education
      • Continuing (post-admission) legal education
    • Achievements and challenges after the pandemic
      • Briefly re continuing legal education
      • Details for university and/or qualifying legal education
        • Course/program goals (any revisions needed?)
        • Course assessment methods (fewer exams, more assignments and/or essays? Changes to grading curves?)
        • Delivery methods (purely online eg live and/or pre-recorded, hybrid with some face-to-face teaching?)
        • Other administrative challenges (eg more plagiarism?)
        • Student welfare and extra-curricular activities?
  • C. Conclusions:
    • Overall, has the shift to more online education been positive?
    • With (big!) assumptions of similar structure for legal profession, university funding and IT systems, what are the prospects for further online legal education as the pandemic abates?

Below highlighted in bold are the jurisdictions for which Special Reports were provided, summarised in the General Report by Nottage and Ibusuki for the October 2022 IACL conference (for which a draft is on SSRN here).

1. Australie/Australia [on SSRN]William van Caenegem (Bond  University) & Trish Mundy (University of Wollongong)
2. Belgique/Belgium Jan-Baptist Lemaire (KU Leuven)
3. Brunei & Malaysia / Singapore [on SSRN]


4. Canada  [on SSRN]		Nobumichi Teramura (Universiti Brunei Darussalam, Institute of Asian Studies) & Salim Farrar (University of Sydney, Law School)

Adrien Habermacher (UMoncton)
5. Chypre/Cyprus [PDF draft]Demetra Loizou and Lida Pitsillidou (University of Central Lancashire, Cyprus) 
6. Croatie/Croatia [longer version on SSRN]Mirela Župan (University  of JJ Strossmayer in Osijek Faculty  of Law)
7. Danemark/ Denmark Per Andersen (Aarhus University)
8. Estonie/Estonia Age Värv (University of Tartu,  Faculty of Law) 
9. Etats-Unis/USAMichael Hunter Schwartz  (University of the Pacific,  McGeorge School of Law)
10. Hongrie/HungaryIstván Hoffman and András Szabó (Eötvös Loránd Université)
11. Italie/Italy [PDF draft]Rossella Esther Cerchia and Barbara Vari  (University of Milano Statale) 
12. Japon/Japan [on SSRN]Kenichi YONEDA (Kagoshima  University) and Luke Nottage (University of Sydney)
13. Macao/Macau [on SSRN]Rostam J. NEUWIRTH, Alexandr SVETLICINII, Muruga Perumal RAMASWAMY (University of  Macau) 
14. Norvège/Norway Tobias Mahler (University of Oslo)
15. Pakistan [PDF draft]Syed Imad-ud-Din Asad 
16. Pays-Bas/ Netherlands Ernst van Bemmelen van Gent (UDO, Utrecht University)
17. Roumanie/ RomaniaDaniela-Anca DETESEANU  (Universitatea din Bucuresti)
18. Royaume-Uni/UK 

19. Seychelles [on SSRN]

20. South Africa		Andra le Roux-Kemp  (University of Lincoln)

Nyasha Noreen Katsenga (University of Seychelles)

Edwin Coleman (University of Johannesburg, CICLASS)
21. Tchéquie/Czech  RepublicDavid Sehnálek (Masaryk University)
22. Turquie/Turkey Elif Küzeci  (Bahçeşehir University) 
23. VenezuelaEugenio HERNANDEZ-BRETON  (Universidad Central de  Venezuela, Universidad  Monteavila, Academia de  Ciencias Politicas y Sociales)
24. Hong Kong [on SSRN]Alice Lee and Wilson Lui (University of Hong Kong)

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. [For my co-authored commentary on the final 2021 Rules, and on the 2005 and 2016 Rules, see https://acica.org.au/rules-commentary/]

  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!