Guest Blog: ‘Exporting Japanese Legal Ideas to the Mekong Subregion of ASEAN’

Written by: Asst Prof Nobumichi Teramura (for MPI Hamburg Festchrift conference, 1-2 September 2022) [for the full paper, not just Part I below, you may try checking his webpages or contacting him]

[Abstract] Japan has long been a successful importer of western legal systems. The country has also exported its law to the rest of Asia for many years. Japan’s national ODA agency – the Japan International Cooperation Agency (JICA) – has been offering legal technical assistance projects since the 1990s. These initiatives have impacted the development of legal systems in Central and Southeast Asian countries. In particular, the outcome of the projects in the countries along the Mekong River is allegedly outstanding in terms of their comprehensive influence on the private laws of Vietnam, Cambodia and Laos. The projects have arguably helped these host countries establish and reform a significant number of private law frameworks. Nevertheless, the extensive work by Japanese legal experts has been struggling with a low profile and a lack of international recognition, most likely due to a lag in anglophone scholarship that delivers a sufficiently detailed examination of the current private laws of those host countries and their operation in practice. This paper intends to address the gap by providing a critical (albeit preliminary and succinct) evaluation of how Japan’s legal technical assistance has led Japanese legal ideas to form part of the legal pluralism in the Mekong Subregion of ASEAN. It also encourages Japanese and local law experts to undertake further actions to re-assess the influence of Japanese law in these countries.

Part I. Introduction: Exporting Japanese Law to the Rest of Asia

Japan has long been perceived as a successful example of legal transplantation based on western models such as the legal systems of Germany, France and the US.[1] However, Japanese law has rarely treated as a source of legal ideas that are applicable outside Japan.[2] When it comes to Japan as a source of legal influence, commentators tend to focus on the country’s role in disseminating a modern German-style legal system to its neighbouring countries, but not on how Japanese law itself has influenced legal thinking in those countries.[3] Moreover, little attention is paid to how these countries are inspired by specific aspects of Japan’s success in importing western legal concepts because commentators are inclined to attribute the success to the specific institutions, culture and environment of Japan, perceiving Japan’s experience as inapplicable to other countries.[4] Those commentators writing in English appear to confine Japanese law and its legal institutions to Japan’s domestic domain.

However, Japanese law has extended its reach to Southeast Asia, as pointed out by several scholars in the last few decades. For instance, Tamura refers to Dr Tokichi Masao’s significant contribution to the codification of modern civil laws in Thailand during his tenure as the General Legal Adviser to the Kingdom of Siam in the early 20th century.[5] Tamura also reminds us that Thai commissioners adopted the (old) Japanese Civil Code as the foundation for their reception of the German Civil Code into the 1925 Revised Civil and Commercial Code of the Kingdom of Siam.[6] Moreover, Taylor highlights the importance of reviewing Japan’s legal technical assistance since the 1990s in the Association of Southeast Asian Nations (ASEAN) and beyond, suggesting that it reveals ‘ongoing tension between a western/globalized vision of rule-of-law assistance and the political imperatives at the national/local level’.[7] Along with Taylor’s thesis, this paper advocates for the need to examine the impact of Japanese positive law through the technical assistance in a recent hotspot for the global economy and comparative legal studies – the Mekong Subregion of ASEAN.[8]

These days, countries along the Mekong River, such as Vietnam, Cambodia and Laos, have been gaining new economic prominence and increased global attention because of geopolitical tensions brought about by the COVID-19 pandemic and the US-China trade war.[9] Many multinationals have been relocating their factories from China to those countries in the Mekong Subregion for cost reduction and risk aversion,[10] being attracted to the competitive labour costs, liberal economic policies, trade openness, social stability and growth potential of those countries.[11] Those foreign investors and experts working on the field of international business are so interested in the legal environments of the host states that much has been written about the legal and judicial systems of the countries along the Mekong River.[12]

Japan’s national ODA agency, the Japan International Cooperation Agency (JICA),[13] has since the 1990s been committing to the modernisation of law in the Mekong Subregion (and other countries) through its legal technical assistance projects.[14] Especially, Japanese legal advice provided through the assistance projects have heavily influenced the private laws of Vietnam, Cambodia and Laos, according to Japanese commentators[15] and mainstream media.[16] Nevertheless, we can rarely find corresponding observations or relevant discussions in anglophone scholarships or official documents issued by the governments of English speaking countries.[17] Thus, this paper critically and succinctly evaluates how Japanese legal ideas have shaped part of the legal pluralism in Vietnam, Cambodia and Laos, calling for further research to assess the influence of Japanese private law in these jurisdictions. It also discusses whether and how such research may help Japanese legal studies and local legal practice overcome challenges they have faced.


* Assistant Professor of ASEAN and Asia-Wide Integration, Universiti Brunei Darussalam; Affiliate, Centre for Asian and Pacific Law in the University of Sydney (CAPLUS); ANJeL-in-ASEAN Convenor, Australian Network for Japanese Law. The author acknowledges […]. Note that this paper is based on the following articles written by this author: Nobumichi Teramura, ‘Japan as a Source of Legal Ideas: A View from the Mekong Subregion of ASEAN’ (2021) 13 New Voices in Japanese Studies 19; and Nobumichi Teramura, ‘JICA and Regional Soft Power: Japan’s Legal and Judicial Development Project in Vietnam, Cambodia and Laos since 1996’ (2022) IAS Working Paper Series <https://ias.ubd.edu.bn/wp-content/uploads/2022/05/working_paper_series_69.pdf> .

[1] Michele Graziadei, ‘Comparative Law, Transplants, and Receptions’ in Mathias Reimann and Reinhard Zimmermann (eds), Comparative Law, Transplants, and Receptions (Oxford University Press 2019) 449; Mathias Siems, ‘The Power of Comparative Law: What Types of Units Can Comparative Law Compare’ (2019) 67 American Journal of Comparative Law 861, 865.

[2] Veronica Taylor, ‘Spectres of Comparison: Japanese Law through Multiple Lenses’ (2001) 6 Journal of Japanese Law 11.

[3] Chen Lei, ‘Contextualising Legal Transplant: China and Hong Kong’ in Pier Giuseppe Monateri (ed), Methods of Comparative Law (Edward Elgar Publishing 2012); Uwe Kischel, Comparative Law (Oxford University Press 2019) 55, 689, 699, 728–35; Graziadei, ‘Comparative Law, Transplants, and Receptions’ 450.

[4] Stephen Givens, ‘The Vagaries of Vagueness: An Essay on “Cultural” vs. “Institutional” Approaches to Japanese Law’ (2013) 22 Michigan State International Law Review 839; Giorgio Fabio Colombo, ‘Japan as a Victim of Comparative Law’ (2014) 22 Michigan State International Law Review 731.

[5] Shiori Tamura, ‘The Role of the Japanese Civil Code in the Codification in the Kingdom of Siam’ in Yuka Kaneko (ed), Civil Law Reforms in Post-Colonial Asia: Beyond Western Capitalism (Springer 2019) 54-55.

[6] Ibid 57ff.

[7] Veronica L Taylor, ‘Rule-of-law Assistance Discourse and Practice: Japanese Inflections’ in Amanda Perry Kessaris (ed), Law in the Pursuit of Development Principles into Practice? (Routledge-Cavendish 2009) 164.

[8] The Mekong Subregion consists of Vietnam, Cambodia, Laos, Myanmar and Thailand: Shawn Ho and Kaewkamol Pitakdumrongkit, ‘Can ASEAN Play a Greater Role in the Mekong Subregion?’, (The Diplomat, 20 January 2019) <https://thediplomat.com/2019/01/can-asean-play-a-greater-role-in-the-mekong-subregion/>.

[9] Nobumichi Teramura, Shahla F Ali and Anselmo Reyes, ‘Expanding Asia-Pacific Frontiers for International Dispute Resolution: Conclusions and Recommendations’ in Luke Nottage and others (eds), New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution (Wolters Kluwer 2021) 356.

[10] John Boudreau and Nguyen Dieu Tu Uyen, ‘Rural Vietnam Booms With Jobs From Apple-Led Move in Supply Chains’, (Bloomberg, 26 October 2020) <https://www.bloomberg.com/news/newsletters/2020-10-26/supply-chains-latest-apple-shift-means-boom-in-rural-vietnam>; John Reed, ‘Vietnam Prepares for Supply Chain Shift from China’, (Financial Times, 28 December 2020) <https://www.ft.com/content/e855b706-e431-4fc5-9b0a-05d93ba1bcbe>

[11] See, eg, Swiss Re Institute, ‘De-risking Global Supply Chains: Rebalancing to Strengthen Resilience’ (2020) <https://www.swissre.com/institute/research/sigma-research/sigma-2020-06.html> ; OECD, ‘Trends in Foreign Investment and Trade in Lao PDR’ in OECD (ed), OECD Investment Policy Reviews: Lao PDR (OECD Publishing 2017).

[12] See generally The MLS Academic Research Service, ‘Southeast Asian Region Countries’ Law’ (Melbourne Law School, 2022)  <https://unimelb.libguides.com/asianlaw> accessed 29 June 2022.

[13] JICA is an independent administrative institution under the Ministry of Foreign Affairs (MOFA) of Japan.

[14] Luke Nottage, ‘The Development of Comparative Law in Japan’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (2nd edn, Oxford University Press 2019) 204-207; Zentaro Kitagawa, ‘Development of Comparative Law in East Asia’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford University Press 2006) 254-256; MOJ, ‘Legal Technical Assistance Activities by the International Cooperation Department ~Contributing to the World Is Japan’s Strength!~’ (n.d.)  <https://www.moj.go.jp/EN/housouken/houso_lta_lta.html> accessed 29 June 2022.

[15] Yuka Kaneko, ‘Japan’s Civil Code Drafting Support for Socialist Reform Countries: Diversity of Normative Choice’ in Yuka Kaneko (ed), Civil Law Reforms in Post-Colonial Asia: Beyond Western Capitalism (Springer 2019) 155.

[16] Shuichiro Sese, ‘Japan’s Judicial Diplomacy at Crossroads as Laos Enacts Civil Code’, (Nikkei Asia, 21 May 2020) <https://asia.nikkei.com/Politics/International-relations/Japan-s-judicial-diplomacy-at-crossroads-as-Laos-enacts-civil-code> (noting that ‘Laos became the third country in Southeast Asia, after Vietnam and Cambodia, to introduce a civil code with Japanese support’).

[17] See Section 4 below.

Japan’s Influence in Comparative Law: An Australian Perspective

The Max Planck Institute for Comparative and International Private Law in Hamburg is hosting a Festschrift conference for longstanding ANJeL advisor and personal friend, Prof Harald Baum, over 1-2 September 2022 on the theme of “Comparing and Transferring Law and Legal Expertise: The Role of Japan”. My presentation and essay honouring Prof Harald Baum begins by locating Australia’s burgeoning Japanese law engagement since the 1980s amidst multiple “worlds” or genres of Japanese legal studies worldwide, and the ambivalence of hitching Japanese legal studies to the wider rising star of “Asian law” engagement (Part I [reproduced below]). It focuses on the unique cross-institutional Australian Network for Japanese Law (ANJeL) that has promoted comparisons with, and understanding of, Japanese law since its establishment in 2002, including sustained support from Harald Baum (Part II). The essay surveys achievements and challenges in research, funded projects and publications in Japanese law (Part III), teaching and learning initiatives about Japanese law (Part IV) and wider community engagement (especially between the legal professions in Japan and Australia) also facilitated by ANJeL (Part V). It concludes that Japanese law engagement has remained surprisingly strong, despite the attraction of diversifying into Asian law more widely, although both fields are facing challenges nurturing the “next generation” of experts in Australia. 

I. Introduction: Consolidating Japanese Law in Australia

Japan has long been an attractive subject for comparative law. It first provided a rich case study of successfully “importing” law – first on Chinese, then Western models – interacting with indigenous norms and institutions. Japan then attracted interest for “exporting” law – in parts of Asia in the colonial era, to the West since its economic heyday in the 1980s, and to Asia and elsewhere over the last few decades as part of Japan’s overseas development aid programs. Japan has also been central to developing, and often empirically testing, theories as to how law interacts with society.[1] As is now well known, the main contenders are that “the Japanese don’t like law” (the culturalist theory), “they can’t like law” (the institutional barriers theory), “they are made not to like law” (the elite management theory), “they like predictable law” (the economic rationalist theory, implying instead that the legal system works well), or some hybrid approach.[2]

The world of Japanese law scholarship, however, has divided into several sub-worlds.[3] First, “Japanese law” comprises studies published in English, mainly by those versed in the Anglo-American legal tradition. The US sub-tradition – led by its elite law schools – favours analyses that engage big theoretical issues, often influenced by disciplines other than law (such as cultural studies, politics or economics), and related empirical work. Topics for analysis also tend to be quite wide-ranging. The English sub-tradition favours more black-letter analyses, with more focus on practical issues particularly in business law. Secondly, the German-language scholarship comparing Japanese law, “Japanisches Recht”, is likewise often quite black-letter in its approach but also covers quite a wide range of topics, thanks to a shared legal history. Thirdly, we have studies of “nihon-ho” written in Japanese, mostly by Japanese scholars for a Japanese audience, which of course cover all topics in Japanese law. The analyses tend to be mostly black-letter law but alongside a rich tradition of legal theory and sociology, sometimes impacting on legal analysis directly, and sometimes impacting indirectly as some Japanese scholars spend time in or with US law schools.

Australia generally follows the English sub-tradition, and its related variant of the common law based on more formal reasoning patterns and supporting legal institutions.[4] Yet by the 1980s, when Japanese law scholarship started to take off in Australia, it had already come under more influence generally from US approaches to legal analysis. (Scholarship in England itself was also developing more emphasis on “law in context” and substantive reasoning.) From the outset, therefore, Japanese law studies in Australia tended to combine both black-letter and contextualist analyses – albeit arguably with more theoretical ecumenicalism than say than in the US.[5] For practical reasons, namely burgeoning trade and investment relations, the focus did tend to be on business law topics. However, as bilateral relations broadened (including more geopolitical links and shared involvement in international treaty regimes), and as the numbers of Japanese law scholars and publications gradually grew, a wider array of Japanese law topics were researched and taught. This broadening and accretion arguably generated more influence from Japanese law for students, legal professionals, and makers of law and policy in Australia.

However, Australia engaged in, and was more impacted by, Japanese law scholarship from the 1980s, during the same period as Australia also ramped up its studies of Asian legal systems more generally. This was a double-edged sword. On the one hand, it allowed scholars to get university appointments and research grants by invoking the broader, and therefore more appealing, category of “Asian law”. Sometimes there were good methodological reasons for emphasising the wider category, given the historical or structural links between Japanese and other Asian legal systems, but there were also practical advantages for securing resources to pursue the study of Japan “within Asia”. As can happen with new fields of law, history or other fields of scholarship,[6] some commentary emphasised how “Asian law” was distinct from the field of comparative law. However, other work argued that the latter had become more interdisciplinary in approach as well, certainly by the turn of the 20th century.[7]

On the other hand, hitching Japanese law scholarship to the rising star of “Asian law” also had potential downsides. Research and publications could end up being directed at Asian legal systems, “hollowing out” Japanese law scholarship and teaching. Coupling Japanese with Asian law also risked undermining a Japan focus and commitment by Australian law schools if and when they reduced their enthusiasm for Asian law. Indeed, a recent short survey of Asian law scholarship for the Asian Studies Association of Australia suggests that that day is already nigh, arguably reflecting a reduction in government and other support across universities for Asia-focused initiatives more generally. Nonetheless, that analysis acknowledges that Asian law expertise remains underpinned by university centres or other institutional arrangements, which are difficult to unwind, thus making its impact more sustainable even if individual scholars find fewer appointments, research grants or teaching opportunities.[8] Even if the focus on Asian law does diminish in Australia, therefore, the institutional entrenchment of Japanese law may shield it from diminishing relevance and influence.

This essay therefore concentrates on a key organisation that has promoted comparisons with, and understanding of, Japanese law over the last two decades, catching the Asian law wave and hopefully riding it out reasonably well if and when that wave fades away. Supported from the outset by Harald Baum, the Australian Network for Japanese Law (ANJeL) has hopefully created sufficient critical mass to ensure that Japanese law continues to have widespread impact not just across academic research in Australia, but also to a significant extent within the legal profession and even some aspects of the wider community. Maintaining a solid base for the “export” of Japanese law into these sectors in Australia, in turn, should allow Japanese counterparts to productively “re-import” elements of Australian law and practice.


[1] L. Nottage, The Development of Comparative Law in Japan, in: M. Reimann and R. Zimmerman (eds.) The Oxford Handbook of Comparative Law (2019) 201, with a manuscript version at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3276469.

[2] M. Abe and L. Nottage, Japanese Law, in: J. Smits (ed.) Encyclopedia of Comparative Law (2020) (forthcoming), with a manuscript version of this contribution for a third edition at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3672112.

[3] L. Nottage, Japanisches Recht, Japanese Law and Nihon-ho: Towards New Transnational Collaboration in Research and Teaching, Journal of Japanese Law 2001, 12, 17; T. Ginsburg, L. Nottage and H. Sono (eds.), The Multiple Worlds of Japanese Law: Disjunctions and Conjunctions (Victoria, Canada 2001). Compare also H. Baum, Teaching and Researching Japanese Law: A German Perspective, in: S. Steele and K. Taylor (eds.) Legal Education in Asia: Globalization, Change and Contexts (2011) 89

[4] See generally L. Nottage, Form, Substance and Neo-Proceduralism in Comparative Contract Law: The Law in Books and the Law in Action in England, New Zealand, Japan and the U.S. (Ph.D in Law thesis, Victoria University of Wellington, 2002), available via http://hdl.handle.net/10063/778.

[5] M. Smith, Australian Perspectives on Asian Law: Directions for the Next Decade, in: V. Taylor (ed.) Asian Laws Through Australian Eyes (2007) 3. As an example of more black-letter Japanese law works led by Australia-based scholars, Veronica Taylor took over editing and writing for the CCH Japan Business Law Guide loose-leaf series from 2000-2006, followed by Luke Nottage until 2009. A volume comprising four of its chapters was also spun off as CCH Business Law in Japan, Volume 1 (2008, Singapore/Tokyo: CCH, ISBN 978-4-915845-08-6).

[6] Examples include how the leaders of the Enlightenment distinguished the preceding supposed “Dark Ages”, or how promoters of mediation differentiated that process as more purely consensual and hence more genuine “alternative dispute resolution” compared to arbitration: L. Nottage, Is (International) Commercial Arbitration ADR?, The Arbitrator and Mediator 2002, 20, 83, also at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=838044.

[7] Compare V. Taylor, Beyond Legal Orientalism, in: V. Taylor (ed.) Asian Laws Through Australian Eyes (2007) 47 with L. Nottage, Comparative Law, Asian Law, and Japanese Law, Journal of Japanese Law 2003, 8, 41 also at https://ssrn.com/abstract=837964.

[8]  M. Crouch, ‘Asian Law in Australian Universities: Research centres as critical institutional commitments’, Asian Studies (Blog Post, 21 April 2020) https://asaa.asn.au/asian-law-in-australian-universities-research-centres-as-critical-institutional-commitments/.

Commercial Dispute Resolution and Arbitration in Japan

Written by: Luke Nottage and Nobumichi Teramura (unfootnoted draft for Sarah Biddulph and Kathryn Taylor (eds) Elgar Concise Encyclopedia of Asian Law, Elgar, forthcoming)

 “Commercial Dispute Resolution and Arbitration in Japan”

For: Elgar Concise Encyclopedia of Asian Law

Luke Nottage and Nobumichi Teramura

1. Civil Procedure and Litigation

The Civil Procedure Code, enacted as the framework for civil litigation in the late 19th century as Japan adopted a modern Western legal system, derived mainly from German law. The Code  experienced significant reforms after WW2 (adopting the more “adversarial principle”) and 1998 (based partly on some emerging court practices, to streamline identification of legal issues and related evidence-taking, as well as new small claims procedures and other provisions to reduce delays).[1] The 1999-2001 Justice System Reform Council Recommendations resulted in introducing expert commissioners to advise judges in complex cases, an advance notice of suit option, and other “micro”-level reforms, but also expanded numbers of bengoshi lawyers and judges aiming for “macro”-level impact.[2] Those Recommendations sought mainly to reduce perceived “structural barriers” to initiate lawsuits, which arguably underpin a comparatively low civil litigation rate in Japan especially over the 1950s-70s. However, some instead argue that this low propensity to sue is related to “cultural” factors like preferences to avoid confrontation and fear of “losing face” (although this may be related to risk-averseness especially in larger organisations), or a rational avoidance of litigation costs by settling in the shadow of comparatively predictable substantive law in Japan.[3]

Japan’s still predominantly civil law tradition means that civil litigation maintains various features not usually found in common law systems. These include limited pre-trial discovery (although some analogues[4]), non-continuous trials (though delays decreased from 2000s), no juries (only for some serious criminal cases, reintroduced from 2009), active case management by judges (including right not duty to “clarify” the law especially for self-represented litigants, and encouragement of settlement), three career judges hearing complex civil cases at first instance, and no dissenting opinions published (other than in the highest Supreme Court).[5]

2. Mediation

In Japan, mediation is mostly court-annexed, with tradition going back to the pre-WW2 era (eg farm tenancy disputes,[6] although such disputes were often settled through direct and informal negotiations between land owners and tenants). Parties may choose between two main types of mediation. One is conducted by the judge(s) assigned the case, although in larger courts like Tokyo and Osaka, the case may be referred to a division where mediation is attempted by other judges, and then returned to the original judge(s) if settlement fails. The second type is mediation under the 1951 Civil Conciliation Act, mandated by the court or more typically agreed by parties: a conciliation committee consisting of a judge and two non-judges having expert knowledge and experience lead the mediation settlements. In both scenarios, it is quite common among the judicial mediators to caucus separately with each party (unlike eg Germany, where judges encourage settlement in open court).[7]

The government also provides mediation service. For instance, some formal government-supported mediation is available, eg for environmental pollution or neighbourhood disputes (eg noise),[8] or recently for financial institutions.[9] Informal government-supported mediation schemes are available too for consumer disputes, through Consumer Lifestyle Centre. The government also promoted criteria (such as independence of formal mediators from any industry associations) for Product Liability (PL) ADR Centres, created from the mid-1990s.[10]

Due to very high public trust in the court-annexed and government-supported schemes, government financial support for them and perhaps still comparatively fewer disputes, Japan has less privately-supplied mediation services. The Justice Reform Council perceived this as another structural barrier, so the 2004 Act on Promotion of Use of Alternative Dispute Resolution encouraged private mediation through government certification to build trust and visibility, allowing such organisations to make limitation periods tolled during their mediations (unlike non-certified mediation suppliers).[11] Many got certified, both some old institutions (like Bar Associations providing mediation services) and quite a few new ones (such as Japan Sport Arbitration Agency),[12] but caseloads have not increased much especially for commercial dispute resolution.[13]

3. Arbitration

Arbitration legislation was also initially also derived originally from Germany: the arbitration section in its Civil Procedure Code also from the late 19th century. This legislation remained basically unchanged in Japan’s 1998 civil procedure reform, despite an earlier push from academics to adopt the 1985 UNCITRAL Model Law template that was starting to spread especially around the Asia-Pacific region. Arbitration was seen as less important compared to improving the civil litigation and mediation environment because it was little used domestically (except eg a scheme for disputes between construction companies and the government).[14] For international transactions, Japanese commercial parties seemed quite content to agree to arbitration in foreign seats, perhaps in exchange for other benefits received in contract negotiations. Part of the thinking may also have been they were unlikely to get involved in (expensive) formal dispute resolution and, in particular, to initiate claims. Hence some Japanese parties and their legal advisors established the comparatively unusual practice of “finger-pointing clauses” in arbitration agreements, designating the defendant’s domicile as the seat of arbitration.

Accordingly, the caseloads of the Japan Commercial Arbitration Association (JCAA) and Tokyo Maritime Arbitration Commission (TOMAC), as well as other international arbitrations with seat in Japan (eg under the ICC Arbitration Rules or ad hoc UNCITRAL Arbitration Rules), remained few even over 2000s, while Asian centres in Singapore, China and HK recorded large increases in arbitration cases. Nevertheless, more foreign counsel and arbitrators joined the arbitration market especially after the 2003 reform of the Act on Special Measures Concerning the Handling of Legal Services by Foreign Lawyers (the Foreign Lawyers Act) that allowed full profit sharing with international firms established in Japan. There also remained a salient practice of Arb-Med, with arbitral tribunals actively encouraging settlement, especially when Japanese parties, counsel and/or arbitrators were involved.[15]

As part of Justice System Reform Council Recommendations, however, the 2003 Arbitration Act was enacted based on the 1985 UNCITRAL Model Law. Some tweaks to that template included extending it from international to domestic arbitration cases (hence, allowing no appeals for errors of law), adding criminal sanctions for corrupt arbitrators (to build trust in arbitration), and requiring express written consent from parties for Arb-Med (given natural justice concerns). Case law has been generally pro-arbitration, enforcing most foreign arbitral agreements and awards in accordance with the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.[16] However, not many judgments, including those related to international arbitration, are translated into English. Few judges give speeches promoting Japan as a seat for arbitration or go on to become arbitrators after retirement — instead, most have been professors and (increasingly) local or foreign lawyers —  unlike in common law jurisdictions like Singapore or Australia where (former) judges play more active roles in promoting arbitration generally. JCAA and TOMAC did amend their Rules around the time of the 2003 Act and subsequently from time to time. However, they continued to mostly administer cases involving at least one Japanese party, without marketing their centres aggressively to see large increases in caseloads.[17]

Since 2018, nonetheless, we have witnessed an elevated political push for Japan to catch up with international competitors and become more of an international dispute resolution hub regionally. Along with the Japan International Mediation Centre (JIMC) Kyoto (an earlier academic / law society joint venture), the Japan International Dispute Resolution Centre (JIDRC) was established with government-supported facilities in Osaka and then Tokyo, with quite intense marketing despite the pandemic. A new Tokyo-based institution, International Arbitration Centre in Tokyo (IACT), focuses on intellectual property arbitration. These governmental initiatives prompted JCAA to enact three sets of new Rules from 2019. Amendments to allow more foreign law representation in foreign-related arbitrations seated in Japan.[18] Moreover, formal consultation was launched in 2020, albeit belatedly by Asia-Pacific standards, to revise the 2003 Arbitration Act along more of the lines of the 2006 UNCITRAL Model Law amendments especially on tribunal-issued interim measures.[19]  This is important especially for marketing Japan as a seat, although the 2003 Act had already anticipated a few provisions on interim measures that were being discussed in UNCITRAL and incorporated into their 2006 Model Law amendments.[20]

Those new public and private initiatives should help further reduce structural barriers to arbitrating in Japan, but it is still unlikely that arbitration will ever become popular for domestic dispute resolution. Moreover, it is too early to tell whether these efforts will make Japan a significantly more popular seat for international arbitrations.


[1] Yasuhei Taniguchi, ‘The 1996 Code of Civil Procedure of Japan-A Procedure for the Coming Century?’ (1997) 45 The American Journal of Comparative Law 767.

[2] Translated at https://japan.kantei.go.jp/policy/sihou/singikai/990612_e.html; Luke Nottage, ‘Civil Procedure Reforms in Japan: The Latest Round’ (2005) 22 Ritsumeikan Law Review 81,  available at SSRN: https://ssrn.com/abstract=837864.

[3] Masaki Abe and Luke Nottage, ‘Japanese Law’ in Jan Smits (ed), Elgar Encyclopedia of Comparative Law (3rd edn, Edward Elgar Publishing 2022), available at SSRN: https://ssrn.com/abstract=3672112 or http://dx.doi.org/10.2139/ssrn.3672112 .

[4] Andrew M. Pardieck, ‘Discovery in Japan’ (2021) 31 Indiana International & Comparative Law Review 61.

[5] See generally eg Shusuke Kakiuchi, ‘Access to justice in Japan’ (2007) Japanese Law Resources <http://www.asianlii.org/jp/other/JPLRes/2007/1.html> .

[6] Dimitri Vanoverbeke, Community and State in the Japanese Farm Village: Farm Tenancy Conciliation, 1924-1938 (Leuven University Press 2004). “

[7] Yasunobu Sato, Commercial Dispute Processing and Japan (Kluwer Academic Publishing 2001); Harald Baum, ‘Mediation in Japan. Development, Forms, Regulation and Practice of Out-of-Court Dispute Resolution’ in Klaus J. Hopt and Felix Steffek (eds), Mediation: Principles and Regulation in Comparative Perspective (Oxford University Press 2012).

[8] Mark D. West, ‘The Resolution of Karaoke Disputes: The Calculus of Institutions and Social Capital’ (2002) 28 The Journal of Japanese Studies 301 (demonstrating the success of the Internal Affairs Ministry’s Pollution Complaint Counsellor in dealing with noise complaints); Shiro Kawashima, ‘A Survey of Environmental Law and Policy in Japan’ (1994) 20 North Carolina Journal of International Law and Commercial Regulation 231; Luke Nottage, ‘The Cultural (Re)Turn in Japanese Law Studies’ (2009) 39 Victoria University of Wellington Law Review 755.

[9] Tomohiko Maeda and Andrew M. Pardieck, ‘ADR In Japan’s Financial Markets & the Rule of Law’ (2018) 10 Northeastern University Law Review 400.

[10] Luke Nottage and Yoshitaka Wada, ‘Japan’s New Product Liability ADR Centers: Bureaucratic, Industry, or Consumer Informalism?’ (1998) 3 Journal of Japanese Law 40.

[11] Aya Yamada, ‘ADR in Japan: Does The New Law Liberalize ADR From Historical Shackles or Legalize It?’ (2009) 2 Contemporary Asia Arbitration Journal 1.

[12] As of 9 April 2022, there are 163 certified organisations: Ministry of Justice, ‘The List of Certified ADR Providers [in Japanese]’ (n.d.)  <https://www.moj.go.jp/KANBOU/ADR/jigyousya/ninsyou-index.html> accessed 9 April 2022.

[13] James Claxton, Luke Nottage and Nobumichi Teramura, ‘Disruption as a Catalyst for International Dispute Services in Japan: No Longer Business as Usual?’ in Luke Nottage and others (eds), New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution (Wolters Kluwer 2021).

[14] Tatsuya Nakamura and Luke Nottage, ‘Arbitration in Japan’ in Shahla F. Ali and Tom Ginsburg (eds), International Commercial Arbitration in Asia (3rd edn, Juris 2013).

[15] Luke Nottage, International Commercial and Investor-State Arbitration: Australia and Japan in Regional and Global Contexts (Edward Elgar Publishing 2021), Chapter 4.

[16] Yasuhei Taniguchi and Tatsuya Nakamura, National Report for Japan (2019 through 2022), in Lise Bosman (ed), ICCA International Handbook on Commercial Arbitration (ICCA & Kluwer Law International 2020, Supplement No. 120, February 2022) at 36-39.

[17] Nobumichi Teramura and Luke Nottage, ‘Arbitration Reform in Japan: Reluctant Legislature and Institutional Challenges’ in Weixia Gu and Anselmo Reyes (eds), Arbitration Reform in Asia (Hart Publishing 2018).

[18] Junya Naito and Ryo Otobe, ‘The Act on Special Measures concerning the Handling of Legal Services by Foreign Lawyers —Recent Developments toward Internationalization’ (2020) 1 Japan Commercial Arbitration Journal 34.

[19] WeiJian Teo and Yusuke Iwata, ‘The Rise of Japan Arbitration: A Balance to the Common Law Forces of International Arbitration in Asia?’, (Kluwer Arbitration Blog, 6 July 2021) <http://arbitrationblog.kluwerarbitration.com/2021/07/06/the-rise-of-japan-arbitration-a-balance-to-the-common-law-forces-of-international-arbitration-in-asia/>.

[20] James Claxton, Luke Nottage and Nobumichi Teramura, ‘Developing Japan as a Regional Hub for International Dispute Resolution: Dream Come True or Daydream?’ (2019) 47 Journal of Japanese Law 109.

Japan: Sustainable Corporate Governance and ‘Gradual Transformation’

[ANJeL Program Convenor Prof Souichirou Kozuka and I have written a shorter chapter on Japan for the 5th edition of Principles of Contemporary Corporate Governance (by Jean Jacques du Plessis, Anil Hargovan and Jason Harris): see our longer manuscript version reproduced here for the 4th edition published by Cambridge University Press in 2018). As indicated in the introduction below, we pay particular attention to the hot topic internationally of ESG (environmental, social and governance) factors in corporate activity and investment, highlighting changes and (mostly) continuities in the corporate governance system behind Japan’s rapid uptake of ESG and sustainable or responsible investment.]

Japan developed vibrant commercial activity domestically towards the end of the Tokugawa Shogunate era (1603-1867), when it largely closed itself off to the world. As the country re-opened and expanded industrialisation over the Meiji Era (1868-1912), codifications and legal institutions were introduced following the European civil law tradition. Stock exchanges were established and investment grew into often family-owned companies, resulting in considerable emphasis on shareholder primacy before World War II.

However, after the US-led Allied Occupation (1946-51) until at least the 1980s, Japan became renowned for its stakeholder approach to corporate governance. More emphasis was placed on the interests and roles of employees (especially those in “lifelong employment”), creditors (especially “main banks”) and key suppliers or corporate customers (including in “keiretsu” corporate groups, and/or involving significant cross-shareholdings). These three practices influencing corporate governance, only loosely underpinned by relevant legislation, started to unravel after an asset bubble collapsed and Japan entered a “lost decade” of economic stagnation from the 1990s. Growing foreign investment into the Japanese stock market also supported a “gradual transformation” toward more shareholder primacy. This has involved some more protection for minority shareholders, and partial shifts towards a “monitoring” rather than executive board especially in listed companies (as elaborated in Part 11.2 of our new chapter).

The transformation since the 1990s has been reinforced by the creation of a new legislative regime (Part 11.3) and more recent “soft law” Codes for corporate governance and engagement or stewardship by institutional investors (Part II.4). Japan has experienced three major waves in the development of corporate law, at roughly half-century intervals. The Meiji-era Commercial Code enacted around the turn of the 20th century was followed by US-inspired reforms during the post-war Occupation, then much more wide-ranging reforms from around the turn of the 21st century prompted by Japan’s economic slowdown. Even in terms of formal legislative changes, the trajectory has not been one of straightforward ‘Americanisation’, and the overall position now reached is also very different from US law, as evidenced by the partial persistence of the statutory auditor governance structure inspired by German law. Also evident are some influences from – or at least parallels with – aspects of English law. These are epitomised recently in listing requirements, including a ‘comply or explain’ Corporate Governance Code since 2015, and an earlier tendency in takeover regulation to give priority to decisions of shareholders over those of directors. The impact of German law, filtered sometimes nowadays through EU law, remains important too. Japan’s complex corporate law landscape is also influenced by  the three distinctive features of post-War corporate governance practice mentioned above, even though they too have been undergoing gradual transformations.

Much discussion has emerged recently also around ESG issues for investors and managers in Japan, as in many other jurisdictions with large securities markets (Part II.5). A key question is whether this means even-greater shareholder primacy, as foreign institutional investors in particular pushed for further ESG initiatives from Japanese firms, or whether it marks their return towards more stakeholder-based corporate governance. The answer is important for predicting likely future directions (Part II.6).

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

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

This 1 February 2022 noon-1.30pm (AEDT) webinar at Sydney Law School discusses how online (university or other) legal education interacts with each jurisdiction’s legal profession, university system, and ICT infrastructure, as well as how online legal education has developed both before and after the COVID-19 pandemic, across several Asia-Pacific jurisdictions: Australia, Japan, Canada, Brunei/Malaysia/Singapore, Macau and Hong Kong. It draws on draft National Reports for an International Academy of Comparative Law conference hosted over 23-28 October 2022 in Asuncion (Paraguay), comparing over 20 jurisdictions worldwide, for a volume to be published by Intersentia co-edited by Professors Luke Nottage and Makoto Ibusuki.

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

Speakers:
Registration – gratis:

Please click here to register online.

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

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

Guest Blog: The Role of Independent Directors in Contemporary Asia

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

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

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

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

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

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

***

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


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

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

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

Japanese and Asia-Pacific Dispute Resolution events over October 2021

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

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

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

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

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

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

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

ANJeL-in-Europe 2021 Workshop: “Japanese Law: Connections and Interactions”

ANJeL was pleased to host this informal research webinar on 10 July, aimed at members in or closely connected with Europe, hosted by Prof Giorgio Colombo (Nagoya U) and Luca Siliquini-Cinelli (Dundee). It follows the successful inaugural symposium held at the University of Pavia in late 2019 (thankfully just before the pandemic), hosted by Giorgio as ANJeL-in-Europe coordinator. Six presentations and some linked materials are set out below. After the lively webinar, Giorgio hosted an even livelier “virtual izakaya” (nijikai) via the free Spatial Chat platform – a first for most of us and certainly for ANJeL!

Opening Remarks – Giorgio F. COLOMBO, Luca Siliquini-Cinelli1.

1. Japan’s Earliest Women Pioneers in Law Teaching — Brief Introductions of their Stories – Mark LEVIN  

[click here for Powerpoints and here for his Youtube video presentation on the wider project and paper on “Presence and Voice: The History and Status Quo of Women Law Professors in Japan“]

2. Revisiting Ramseyer: The Chicago School of Law and Economics Comes to Japan – Luke NOTTAGE  (with Craig FREEDMAN)

[Click above for paper, see below * for Abstract, and click here for Powerpoints]

3. Japan’s Low Litigation Rate: Lessons from the Labor Tribunal System – Wered BEN-SADE

4. The Japanese Unequal Treaties: From their Signing Until Their Renegotiation – Béatrice JALUZOT

5. IP-related rights and Free Trade Agreements (FTAs): A Japanese Approach – Matteo DRAGONI

6. Japan, the European Union and Global Governance – Dimitri VANOVERBEKE [click here for Powerpoints and here for his related new co-edited book]

* Freedman, Craig and Nottage, Luke R., Revisiting Ramseyer: The Chicago School of Law and Economics Comes to Japan (June 17, 2021). Available at SSRN: https://ssrn.com/abstract=3868698

Abstract: Mark Ramseyer has been a leading force in bringing to bear the methods of Law and Economics to an increasingly ambitious analysis of the Japanese legal and economic systems. He has deliberately assumed an iconoclastic position in debunking a number of widely-held beliefs about Japan. More recently he has engendered a bitter degree of controversy by idiosyncratically analysing Korean “comfort women” and residents in Tokyo before and during World War II. In this paper we examine Ramseyer’s long contribution to Japanese studies and conclude that he has too frequently let ideological objectives, paralleling three key tenets of the Chicago School of economics, interfere with what should be cool-headed analysis. While asking many of the right questions, prompting often helpful responses and further research, he unfortunately has let a priori assumptions determine his answers. Ramseyer has proven reluctant to review his assessments or implications, largely dismissing contrary evidence.

Keywords: comparative law, Asian law, corporate governance, consumer law and policy, Japanese studies, economic history, market fundamentalism, rational choice theory, social science methodology

Japanese Studies (& Law): JSAA conference focused on “Sustainability, Longevity and Mobility”

[Updated 13 September 2021] ANJeL has coordinated two Panels related to Japanese law, as below, for the upcoming biannual conference of the Japanese Studies Association of Australia. Due to the ongoing pandemic the 2021 conference will be a virtual event delivered via Zoom. The conference theme is ‘Sustainability, Longevity and Mobility’ and details can be found at https://languages-cultures.uq.edu.au/event/session/5776. The dates for the conference remain September 28th to October 1st 2021. Due to the nature of virtual delivery the format for the conference will be quite different from past years and registration costs will be reduced. There will be a virtual postgraduate workshop held during the conference as well.

  1. Stream 3.6 (Friday 1 October 1-2.30pm): “Japanese Law and Methodological Diversity”

The three presentations engage with diverse methodological perspectives that can be adopted to analyse Japanese law and society. Luke Nottage and Craig Freedman uncover three key tenets of the post-War Chicago School of economics, adapted by J Mark Ramseyer in analysing an increasingly broad swathe of fields, beyond the economic sphere to include recently and controversially the history of “comfort women”. They warn against letting this or any ideology skew logical arguments or factual determinations. Ayako Harada instead applies a methodology incorporating cultural and institutional perspectives to examine child custody dispute resolution in Japan. Leon Wolff ends by exploring the explanatory power of emotions and affect in explaining reconfiguration of legal relations in Japan.

Revisiting Ramseyer: The Chicago School of Law and Economics Comes to Japan(Prof Luke Nottage, co-authored with retired A/Prof Craig Freedman)

Mark Ramseyer has been a leading force in bringing to bear the methods of Law and Economics to an increasingly ambitious analysis of the Japanese legal and economic systems. He has deliberately assumed an iconoclastic position in debunking a number of widely-held beliefs about Japan. More recently he has engendered a bitter degree of controversy by idiosyncratically analysing Korean “comfort women” and residents in Tokyo before and during World War II. In this paper we examine Ramseyer’s long contribution to Japanese studies and conclude that he has too frequently let ideological objectives, paralleling three key tenets of the Chicago School of economics, interfere with what should be cool-headed analysis. While asking many of the right questions, prompting often helpful responses and further research, he unfortunately has let a priori assumptions determine his answers. Ramseyer has proven reluctant to review his assessments or implications, largely dismissing contrary evidence.

Luke Nottage, Professor of Comparative and Transnational Business Law, University of Sydney Law School, Co-Director of the Australian Network for Japanese Law (ANJeL). Luke specialises in arbitration, contract law, consumer product safety law and corporate governance, with a particular interest in Japan and the Asia-Pacific, and has produced 18 books and hundreds of articles and chapters. He is also Associate Director of the Centre for Asian and Pacific Law at the University of Sydney, Managing Director of Japanese Law Links Pty Ltd and Special Counsel with Williams Trade Law.

“Child Custody Dispute Resolution in Japan: A Cultural and Institutional Perspective” (Prof Ayako Harada)

This paper describes the background and the current situation of parental child custody disputes in Japan. It discusses the possibility of joint-custody legislation and its potential difficulties in effectively managing such disputes in Japanese cultural and institutional context.

Ayako Harada, Professor at Nagoya University Graduate School of Law’s Department of the Combined Graduate Program in Law and Political Science. Prof Harada specialises in legal sociology, history and theory, having graduated from Kyoto University and worked at Waseda University before joining Nagoya University. A major field of research and writing is family law dispute resolution.

“Japanese Law: Once More with Feeling” (A/Prof Leon Wolff)

Emotions enrich our lives. They define our passions and interests; they give colour to our life events; and, as e-motions, they move us to make choices and decisions. The psychological and neurological sciences have long dismissed the false dichotomy between the unruly horse of the emotions and the calm rider of the intellect. And although sociologists and cultural critics have drawn inspiration from these scientific traditions to develop feeling rules and affect theory to explain transformations in social relations, legal sociologists have kept their feelings in check — at least in their scholarly accounts. This paper explores the explanatory power of emotions and affect in explaining reconfiguration of legal relations in Japan. It considers the different conceptualisations of feelings, their corporeal and psychic dimensions, how they manifest intra- and inter-subjectively, and the methodological challenges involved in accessing, operationalising and analysing emotions to make better ‘sense’ of Japanese law and society. This paper argues that emotions, as forces that drive movement, offer richer possibilities for explaining socio-legal change than current, more static material accounts based on national character, institutional design, politics or rational choice models.

Leon Wolff, previously Associate Professor of Law at the Queensland University of Technology and PhD candidate at the Griffith Asia Institute, was founding co-director of the Australian Network for Japanese Law (ANJeL). Specialising in Japanese law and society, Leon is currently working on a project on the role of emotions and affect on legal change and justice in Japan.

Discussant: Associate Professor Trevor Ryan teaches Legal Theory, Constitutional Law and other classes at Canberra Law School, where he is Program Director of the Juris Doctor. Trevor’s main research interests are elder law, disability, and legal education, with a comparative law interest in Japan. Trevor has published on a range of topics including dementia, guardianship and private law; the right to housing; and the role of stakeholders in shaping legal education. 

2. Stream 3.1 Weds 29 Sept 12.30-2pm: “The Shadow of Japanese Law – How Sports Elites and the Marginalised Poor Skirt the Law”

This panel has two presentations exploring the surprising ways corruption and crime function in Japan despite the criminal law. The presentations focus on the two extremes of Japanese society — the elite (professional sumo athletes) and the poor (elderly prisoners who now occupy a significant proportion of the incarcerated). Both presentations explore the surprising ways the elite and the marginalised ignore, invoke and side-step the law to achieve socio-economic goals.

“Subverting the Prison: Stigma, Strategy and Japan’s Aging Inmates” (Carol Lawson, University of Tokyo Law Faculty)

Prison populations are aging across all industrialised jurisdictions. However, in Japan, the growth in older prison admissions has long been outstripping the rate of aging in society as a whole. Nearly 38% of admissions were aged 50 or more in 2018, and there is strong evidence that some older Japanese are leveraging the prison system as de facto aged care. This paper explores the confluence of social disintegration and poverty that have contributed to Japan’s grey crime wave. It then examines the role of legal consciousness in this sociolegal phenomenon. Specifically, the paper analyses data collected from 1500 prisoners in 2016 using Valerie Braithwaite’s ‘motivational postures’ heuristic to show how marginalised older Japanese with compliant attitudes to authority have repeatedly embraced the stigmatising criminal identity to receive law’s protection. Finally, it demonstrates how this deft subversion of prisons to meet individual care needs has driven previously inconceivable legal and social change, rewriting the rule book on criminal justice regulation in Japan – without reliance on rights discourse.

Carol Lawson commenced as Associate Professor of (Anglo-American) Law at the University of Tokyo Law Faculty in September 2021. Before that she was the Minter Ellison Research Associate at the University of New South Wales Faculty of Law and a doctoral candidate at the Australian National University. She works on regulation and global governance with a focus on criminal justice regulation and closed environments. Her approach is through a comparative sociolegal lens, using mixed methods to carry out empirical research. She is completing a study on the nature and impact of civil prison oversight in Japan and Australia, and planning a project on regulating closed environments in the aged care sector. An insight common to both studies is the importance of developing a granular understanding of regulatees’ compliance postures before attempting a regulatory intervention. She teaches courses in Japanese and Anglo-American law, and coaches in the Tokyo Intercollegiate Negotiation Competition. She also serves on the Japan Law Translation Council and as an expert adviser to the Japanese legal translation community, including on plain legal language.

“Integrity and corruption in sport: Lessons from Japan and match-fixing in sumo” (Matt Nichol, CQU [presenter*] with Elisa Solomon and Keiji Kawai

Professional sumo in Japan provides a different perspective on corruption in sport due to the long-standing and until recently accepted tradition of match-fixing in makuuchi and jûryô, the two highest divisions of wrestling known as sekitori. As sports gambling is generally illegal under Japan’s Criminal Code, match-fixing in sumo is not related to gambling. Instead fixing is largely the result of the promotion rules, where rikishi (‘wrestlers’) with a losing record in one of the six annual tournaments face demotion in rank and division, and with it, the loss of status and income of competing in sekitori. Evidence surfaced in the 1990s and 2000s of match-fixing involving wrestlers with above expected winning records when facing a losing record in the last days of a tournament. A police investigation into illegal gambling in baseball in 2011 led to evidence of fixing involving a number of rikishi and resulted in an investigation by the Japan Sumo Association that confirmed the first official cases of match-fixing in sumo. This chapter will examine the cultural, institutional and sumo specific factors that encourage fixing and how trust was restored with the public, fans and sponsors after the 2011 fixing scandal

* Matt Nichol is a Lecturer in Law at the College of Business at Central Queensland University (Melbourne Campus, Spencer Street Melbourne VIC 3000). His research focuses on labour mobility, labour regulation and wages in professional baseball in the United States and Japan. Matt has also researched free agency and corporate governance in the Australian Football League. Matt’s research utilises regulatory theory, approaches to labour and the principle that labour is not a commodity to examine the regulation of labour in professional sport. In 2019, Matt’s book Globalization, Sports Law and Labour Mobility: The Case of Professional Baseball in the United States and Japan was published by Edward Elgar Publishing.

Elisa Solomon is an Asia-Paciic Employment Relations Specialist with Bristol Myers Squibb, and a Research Assistant with Monash University, Australia. Elisa is a lawyer with experience researching and advising on labour laws and regulations in the Asia-Pacific, and holds a Master of Laws. Having worked in both the public and the private sector in Japan, Elisa is experienced in conducting research on Japanese laws and policies. Elisa has conducted research on laws surrounding workers’ protections in Japan, participation of women in Parliament, and the assessment of directors’ liability in Australia and Japan. She has previously worked for the International Labour Organization in Thailand on a regional project analysing countries’ compliance with the Bali Declaration.

Keiji Kawai is a Professor of Sport Law in the Department of Policy Studies at Doshisha University in Kyoto, Japan. His book, The Legal Status of Professional League Players (2003), was awarded the Okinaga Prize by the Labor Research Center. He served as Visiting Researcher at the University of Massachusetts at Amherst from 2007 to 2009. Keiji was the General Secretary of the Japan Sports Law Association from 2017 to 2019 and is also on the arbitrator panel at the Japan Sports Arbitration Agency. He was an executive board member of the Nippon Basketball League from 2013 to 2015. He is currently conducting comparative studies funded by the Japan Society for the Promotion of Science on sports accidents and compensation.

Discussant: Associate Professor Trevor Ryan teaches Legal Theory, Constitutional Law and other classes at Canberra Law School, where he is Program Director of the Juris Doctor. Trevor’s main research interests are elder law, disability, and legal education, with a comparative law interest in Japan. Trevor has published on a range of topics including dementia, guardianship and private law; the right to housing; and the role of stakeholders in shaping legal education.