Category: Japanese Law

“COVID-19 in Asia and Beyond: We Are Story Characters Living in a New Story World”

Prof Luke Nottage (Sydney Law School) and A/Prof Tom van Laer (Sydney Business School)

Contemporary societies worldwide, and across the Asia-Pacific, have joined another realm. We struggle to make sense of the pandemic, ranging from the decelerated experience that continuously working from home promises, through to the immersion into COVID-19 impacts via news and social media. Engaging with this new narrative world, and eventually emerging from it, creates an ongoing challenge, which neither health professionals, nor politicians, nor policymakers address in much depth. They place emphasis on “flattening the curve,” for viral infections and economic slowdown, rather than on the complexities of transportation, transformation, and trans-mutilation as depicted in narratology[1] (how humanity uses stories to understand the world) and as experienced by ordinary citizens.

An overlooked aspect of COVID-19 is the wider story told by this intense, gripping, yet temporary pandemic.[2] This extraordinary experience creates a new narrative world, in which citizens feel as if they have escaped into a different, distinctly encapsulated frame. Narrative worlds are coherent, representative situation models woven from the distinct physical and temporal settings, props, characters, and performances that make experiences stand out.[3] Examining a narrative world can help reveal important currents and issues in socio-economic and legal ordering, offering new insights for policymakers and researchers.

1. Learning from Our New Storyline

To illustrate, this pandemic makes us feel as if we are stuck in disaster movie, but with some interesting differences from the usual Hollywood[4] (or Bollywood[5]) narratives. Thinking first of the herors, the main ones are those combatting the invidious coronavirus pandemic: the health professionals, especially the government medical officers, the front-line doctors and nurses, but (curiously) not really the psychologists or pharmacists.

The other unexpected heroes are those that usually do not feature: the supermarket staff on checkouts or (even more invisibly) stacking shelves, the truck drivers, or those making or delivering takeaways.

A few politicians are heroes too (or villains), but in a much reduced cast. Only few leaders of governments are prominent. Opposition leaders struggle to remain relevant. Not to mention the hundreds of other parliamentarians that usually vie for and get some media attention.

Everyone else is like an extra: paid a little to do not very much over long periods! These multitudes merely provide a the backdrop for the heroes to develop the movie’s storyline.

Largely missing are other groups that sometimes feature in disaster movies, or indeed disaster management scenarios in real life. Belatedly, in Act II, the economists are surfacing more, as the health challenges from Act I become better known and outcomes are generally improving. Economists, including central bankers[6] who usually take a low profile,[7] need to work out how to maintain or revive economies amidst ongoing uncertainties over a cure or vaccine.

The jurists remain largely missing in action, despite the introduction of “executive rule” (with many parliaments suspended)[8] and limited access to courts (as traditional bastions for civil liberties). But data privacy lawyers have sometimes made an appearance, eg on safeguards for the new COVIDSafe tracing App being encouraged by the Australian government for contact tracing).[9]

We also rather rarely hear of the sociologists, philosophers, theologians and even political scientists, who usually help us to make broader sense of the societies we live in. Nor do we hear much from academics more generally, unless working with those developing vaccines or specialising in public health.[10] However, for example, some Australian universities are now trying to highlight their wider interdisciplinary expertise,[11] as the sector takes a large hit in revenue due to declines especially in foreign student enrolments.[12]

So the scenario we are living through and see unfolding around us offers an opportunity to test whether there is a reversal of “the death of expertise”. Tom Nichols reviewed that phenomenon in 2017, although focusing more on postmodern Western rather than Asian societies.[13] Seeing ourselves in a disaster movie, in this way, can also provide insights into which groups of experts figure more prominently in public policy making generally.

2.       Other Insights from and for Japan and Other Asian Societies

The COVID-19 pandemic also highlights the resilience or perhaps revival of community norms in contemporary societies, even in highly developed Asia-Pacific economies. We often observe the importance of such norms from disaster management studies.[14]

In particular, in the short-term relief phase, examples of cooperative and altruistic behaviour tend to far outweigh selfishness or illegal behaviour (such as looting), contrary to the fears of Thucydides during the Athenian plague of 430BC.[15] This often extends to the post-disaster reconstruction phase, although politics and business as usual can then resurface, and effectiveness depends significantly on measures of “social capital” (such as participation in neighbourhood associations or religious groups) that vary across states and even localities. The impact of such community norms and institutions can also make a big difference in the disaster-planning phase.[16] Rural Taiwan’s effective cooperation against Covid-19[17] provides an interesting recent example for further comparative studies.

Japan’s response is also fascinating. It maintained economic activity longer than many Asian countries, although so for example did Taiwan and Korea.[18] Japan’s original policy stance has been criticised by some commentators, especially perhaps those sceptical about an earlier administration’s management of the 2011 earthquake/tsunami/radiation disasters. Yet Japan’s (still) low per capita death rate,[19] as well as another strong recent electoral result for the Abe Administration in 2019,[20] could explain this original policy stance. Nonetheless, as infections and testing grew,[21] the government declared a state of emergency last month — recently extended[22] — and “encouraged” dramatic reductions of sales and movements.[23]

Unusually, the central and local governments did not set criminal sanctions and use the police to enforce the restrictions. Instead they relied on appeals to narratives of civic virtue and consideration for others, albeit underpinned by the more instrumentalist power (and eventually practice) of “shaming” some miscreant businesses by “warning” the public if they remained open.[24]

An official reason for not mobilising the police was this would violate civil liberties enshrined in Japan’s (post-War, US-inspired) Constitution. Yet that, like other constitutions around the world, have provisions arguably justifying tougher interventions and sanctions.[25] One more likely explanation is that such measures, especially if introduced by a centre-right government, would remind its citizens (and neighbouring countries) of Japan’s militarist past – countering persistent efforts to substitute a narrative of “modern” freedoms and even pacifism.[26]

Another explanation is that Japanese leaders and policy-makers are aware that communitarian norms and respect for authority (and experts) remain comparatively strong. An analogy in Sweden, where leaders and policymakers still rely on community rather than legal norms despite a much higher death rate.[27]

Japan’s evolving experiment therefore raises another longstanding question: the importance of law in contemporary socio-economic ordering. Commentators have persuasively criticised an earlier “cultural relativist” theory that low civil litigation rates or less reliance on detailed contracts can simply be explained by “pre-modern” consensus-oriented or Confucian norms. Instead, they identified cost-benefit motivations for elites or individuals behind such outcomes.[28] Building on both storylines, the government itself has tried to promote a more active use of the legal system since the economic slowdown from the 1990s, including through wide-ranging justice system reforms.

Yet Japan seems to have reached a new equilibrium,[29] allowing an enhanced role for law while being cautious of its over-reach and conscious of the usefulness of maintaining strong communitarian values.[30] This balance, or tension, arguably becomes more visible in disaster situations in Japan, as also during the 2011 earthquake/tsunami/radiation disasters. It is therefore a topic worth comparing now across other Asian countries.

3. Emerging from the Pandemic into Another Narrative World

Over the course of the pandemic narrative world’s end, it will transcend its extraordinary nature. Sociologists and historians remind us that many tangible improvements come out of disasters.[31] Yet the narrative world that originates in the pandemic will also feed or “bleed” into the everyday world. Citizens can either transform this bleed into benefits that enrich their lives, or “trans-mutilate” it so that their lives remain immune. Reflecting on the discourses that surround the COVID-19 pandemic, we observe that many people “seek bleed out.” They want triggers, they want change, and they want transformation.

Deconstruction of the pandemic’s narrative world can have a pronounced transformative effect on these people. After the COVID-19 pandemic is over, many citizens will reveal how their behaviour, feelings, and thoughts in the narrative world are leaving traces with them afterwards, because of the world’s absence. By keeping the portal wedged open, traces of the narrative world’s presence will remain with these COVID-19-survivors and spread discernibly into the wider everyday world. Coping with these traces will offer purgative relief from these distressing emotions.

COVID-19 will change us. It will force us to face personal demons; to ask ourselves essential questions about the nature of humanity, of love, of choice. It will teach us new things about hope, and about loss. We will feel like we leave parts of ourselves stumbling around in that disaster movie. In return, we will bring back home a new piece of our humanity, of our innocence. We will thus become more aware of other worldviews through the extraordinary experience of the COVID-19 pandemic. Because of its absence, people will become more conscious of conspicuous consumption, of new relationships and sides to our identities.

However, challenged to negotiate the portal threshold between the narrative and the everyday world, not all citizens will gratefully receive these valuable aids to narratively sourced enculturation and instruction. Some COVID-19-survivors will not use narrative-provided meanings to further their worldviews and identity projects, and suit new consumption purposes and relationship statuses. Various survivors will fence off the narrative world of the pandemic, close the portal, and as such engage in strategies that trans-mutilate the narrative benefits passed onto them. The emotional distress they suffer will be cathartically powerless.

We wonder whether leaving our current novel narrative world will help consumers eventually. Will citizens suffer more after this episode, because they have experienced the benefits, yet are unable to escape their daily lives? We answer that citizens will suffer more soon after this narrative world has ended—but less eventually—if they analyse and take away the narrative benefits so as to transform the daily lives they can never escape.

[1] van Laer, Tom, Jennifer Edson Escalas, Stephan Ludwig, and Ellis A. van den Hende (2019), “What Happens in Vegas Stays on Tripadvisor? A Theory and Technique to Understand Narrativity in Consumer Reviews,” Journal of Consumer Research, 46 (2), 267–85. doi:https://doi.org/10.1093/jcr/ucy067

[2] “[F]or peripatetic (auto)didacticism is the homo narrans’s preferred mode of knowing” (italics in original): Joy, Annamma and John F. Sherry (2003), “Speaking of Art as Embodied Imagination: A Multisensory Approach to Understanding Aesthetic Experience,” Journal of Consumer Research, 30 (2), 259-82. doi:https://doi.org/10.1086/376802

[3] Gerrig, Richard J. (1993), Experiencing Narrative Worlds: On the Psychological Activities of Reading, New Haven, CT: Yale. doi:https://yalebooks.yale.edu/book/9780300054347/experiencing-narrative-worlds

[4] E.g. Contagion (2011), https://www.imdb.com/title/tt1598778/

[5] E.g. Bhopal Express (1999), https://www.imdb.com/title/tt0281656/

[6] https://www.eastasiaforum.org/2020/05/03/central-bankers-open-up-the-pandemic-box/

[7] Prof Annelise Riles, https://einaudi.cornell.edu/annelise-riles-secret-life-central-bankers

[8] E.g. my colleague A/Prof Andrew Edgar: https://auspublaw.org/2020/03/law-making-in-a-crisis-commonwealth-and-nsw-coronavirus-regulations/

[9] https://www.sydney.edu.au/news-opinion/news/2020/04/28/experts-examine-the-covid-19-tracing-app.html

[10] As somewhat of an exception, as a blog funded by Australian universities, see https://theconversation.com/au/topics/coronavirus-5830.

[11] https://go8.edu.au/research/roadmap-to-recovery

[12] https://www.abc.net.au/news/2019-08-21/australian-universities-too-dependent-on-chinese-students-report/11427272

[13] https://global.oup.com/academic/product/the-death-of-expertise-9780190469412?cc=au&lang=en&

[14] Nottage, Luke R. and Nasu, Hitoshi and Butt, Simon, Disaster Management: Socio-Legal and Asia-Pacific Perspectives (May 12, 2013). ASIA-PACIFIC DISASTER MANAGEMENT: COMPARATIVE AND SOCIO-LEGAL PERSPECTIVES, Simon Butt, Hitoshi Nasu and Luke Nottage, eds., Springer, pp. 1-58, 2014; Sydney Law School Research Paper No. 13/36. Available at SSRN: https://ssrn.com/abstract=2263953

[15] Frank Furedi, Coronavirus: Pandemics remind us of the power of community [[=“Adversity Begets Brave New World” in print version] The Australian (2-3 May 2020)

[16] Daniel Aldrich, https://press.uchicago.edu/ucp/books/book/chicago/B/bo13601684.html

[17] https://www.eastasiaforum.org/2020/04/30/rural-taiwans-community-cooperation-against-covid-19/

[18] https://www.economist.com/asia/2020/03/30/south-korea-keeps-covid-19-at-bay-without-a-total-lockdown

[19] https://asiatimes.com/2020/04/why-japan-gets-no-covid-19-respect/

[20] https://www.eastasiaforum.org/2019/07/25/abe-and-the-ldp-remain-dominant-after-japans-upper-house-elections/

[21] https://www.eastasiaforum.org/2020/04/28/japans-timid-covid-19-response/

[22] https://www.theguardian.com/world/2020/may/04/japan-to-extend-state-of-emergency-covid-19-amid-fears-second-wave-could-cripple-tokyo-hospitals

[23] https://www.japantimes.co.jp/news/2020/05/03/national/japan-partially-relax-interpersonal-contact/#.Xq9dzpolGUY

[24] https://time.com/5813619/japan-coronavirus-lockdown/

[25] https://www.japantimes.co.jp/opinion/2020/04/14/commentary/japan-commentary/coronavirus-japans-constitution/#.Xq9e_ZolGUY

[26] See generally Gustafsson et al (2019) https://www-tandfonline-com.ezproxy1.library.usyd.edu.au/doi/full/10.1080/09557571.2019.1623174

[27] https://www.theguardian.com/world/commentisfree/2020/apr/21/sweden-covid-19-policy-trust-citizens-state

[28] Abe and Nottage (2006 1st ed) http://www.austlii.edu.au/au/journals/ELECD/2006/184.html

[29] Wolff, Leon and Nottage, Luke R. and Anderson, Kent, Introduction: Who Rules Japan? (February 19, 2015). WHO RULES JAPAN? POPULAR PARTICIPATION IN THE JAPANESE LEGAL PROCESS, L. Wolff, L. Nottage and K. Anderson, eds, Edward Elgar, UK & USA, 2015; Sydney Law School Research Paper No. 15/10. Available at SSRN: https://ssrn.com/abstract=2567552

[30] Nottage, Luke R., Translating Tanase: Challenging Paradigms of Japanese Law and Society (May 27, 2006). Victoria University of Wellington Law Review, Vol.39, No. 4, pp. 755-778, 2009; Sydney Law School Research Paper No. 07/17. Available at SSRN: https://ssrn.com/abstract=921932

[31] Furedi 2020, op cit.

Endurance in Japanese Law

Written by Leon Wolff (QUT), with Giorgio Fabio Colombo (ANJeL-in-Europe Convenor, Nagoya U), Luke Nottage (USydney) and Heather Roberts (ANU)

The five articles collected in Issue 49 of the Journal of Japanese Law (for the northern hemisphere “Spring” of 2020) is a celebration of Europe’s enduring legal engagement with Japan. It reflects on the strength of legal links between Europe and Japan – some long-lasting; others fleeting; and yet others, emerging and evolving. It investigates the persistence of institutional practices and norms in Japanese legal system, large tracts of which have been adopted and adapted from 19th century continental European law as well as some recent legal innovations inspired by European examples. And it celebrates this work, whether by way of country reports or scholarly investigations, in this Journal – the world’s only enduring journal dedicated to Japanese law, published and edited in Europe. 

The reports and papers in this issue, and some more to come in the next issue, emanate from a Japanese law conference held on 23 September 2019 in the university town of Pavia in the Lombardy region of northern Italy.[1] Jointly organised by the Australian Network for Japanese Law (ANJeL) and Professor Giorgio Fabio Colombo, an Italian expert on the Japanese legal system based at Nagoya University, this event was intended to be an inaugural ANJeL-in-Europe event. The monastic-like University of Pavia, with a history tracing back to the 14th century, certainly made for an impressive site to inspire hopes for future research activities on Japanese law in Europe into the future. ANJeL, too, has strong connections with Europe. ANJeL co-director Luke Nottage, for example, has held research fellowships in Germany and Italy as well as having made explicit comparisons with European law in his corpus of scholarship on Japanese business and consumer law. Co-director Leon Wolff, as his surname might indicate, has German heritage. And, as a cross-institutional network established in 2002 for research, teaching and community engagement,[2] ANJeL has welcomed European experts to its advisory board, European researchers to its global conferences, and European law teachers to its signature offshore teaching program in Kyoto and Tokyo co-organised at Ritsumeikan University campuses each February. 

Less than six months after the Pavia event, ANJeL’s plans to base future collaborative research events on Japanese law in Europe have been put on ice. This is due to the sudden and shocking intervention the COVID-19 global pandemic. Since the initial reports of a novel coronavirus emerging from the live animal wet markets in Wuhan, China, COVID-19 has spread relentlessly across the world. According to the World Health Organisation, it had infiltrated 23 countries, infecting about 2 million people and causing 123,000 deaths.[3] Northern Italy, where the ANJel-in-Europe conference was held, became one the worst hit epicentres for the disease. The per-capita death rate remained the highest at the time of writing. This public health crisis has not only cost lives; it has shuttered swathes of the global economy, halted travel and reconfigured human interaction. Uncertainty is the new norm. It is unclear when the pandemic will be brought under a control; when a vaccine will become available; what restrictions will be imposed or relaxed; or how the world will change after the worst is over.

One thing, however, is certain. The pandemic will not endure. Although it will carry long-lasting effects, it will come to an end.

This observation stands in contrast to the overarching theme of this collection of papers: endurance. Specifically, the contributors have posed two linked research questions that engage this theme. The first is about the nature of the legal relationship between Japan and different parts of Europe. Why is there longstanding legal exchange between Japan and some parts of Europe, and only fleeting or emerging links in others? What historical and contemporary trends explain the unevenness in the Europe-Japan legal relationship? The second question concerns the functioning of key Japanese legal institutions, specifically, the judiciary, the legal profession and the criminal justice system. To what extent do the traditional functions of these legal institutions endure or persist despite the overlay of reform, the forces of (post-)modernisation and the pressure of interest groups? And how do we explain Japan’s tendency for institutional evolution rather than transformative change?

A report on “The State of Japanese Legal Studies in Europe” is the first comprehensive attempt to map Japanese legal studies across Europe. Reflecting on the trajectory of Japanese legal studies across the continent, the relative influence of Japanese Studies or Comparative Law on this trajectory, and the key research or teaching initiatives, the team of contributors covers Italy (Giorgio F. Colombo), France (Béatrice Jaluzot), Israel (Wered Ben-Sade), Scandinavia (Roger Greatrex), Spain (Francisco Barberán), Belgium and The Netherlands (Dimitri Vanoverbeke), Germany (Harald Baum and Moritz Bälz) and the United Kingdom (Luca Siliquini-Cinelli). Although the Japanese legal system is accessible to many European legal researchers because the Japanese system of codified laws draws heavily on a patchwork of European transplants, the motivations among Europeans to engage seriously with Japanese law vary widely. It might be inspired by the strong tradition of Japanese law scholars to research aspects of  European law and forge scholarly links (such as France); the growth of the Japanese economy since the 1970s and its significance to European economies (such as Germany and the Low Countries); the lure of Japanese society and culture (such as Italy and Spain); or the personal passions and scholarly initiatives of individual researchers (all countries, but consider especially Israel and Scandinavia). Japanese law scholarship – whether long-lasting (France), rich and voluminous (Germany), emerging (Italy), patchy (Scandinavia) or nascent (Israel) – finds diverse expression across Europe.

The next three articles explore different legal institutions in Japan: the legal profession (Masako Kamiya), the judiciary (Souichiro Kozuka) and the criminal justice system (David Johnson and Dimitri Vanoverbeke). In “The Style and Role of Judgments by Japanese Courts: How They are Written and Read”, Kozuka argues that case reporting decisions in Japan reflect a deliberate judicial policy of social conservatism. Specifically, which decisions get published in official reporter series, and how they should be written, reflects an institutional imperative to maintain public confidence in the court system through the cautious development of social policy through law; this contrasts with the broader goals of the common law system to ensure  incremental and coherent development of legal doctrine itself. Kozuka, however, rejects the view that the courts, especially the Supreme Court, are archly conservative. Rather, through an analysis of recent legal decisions on controversial issues, the Court and the Japanese judiciary as a whole ensure that the development of social policy through the law is carefully aligned with legislative history, accepted canons of statutory interpretation and criterion-referenced balancing tests.

In “Disciplinary Procedure: What it Tells Us about Practicing Attorneys in Japan”, Kamiya explores the disciplinary and dispute resolution procedures available to clients dissatisfied with the conduct of their case by their lawyers. Kamiya argues that, to be sure, lawyers take ethical and misconduct complaints seriously, and the Japanese Bar’s oversight powers can be successful in punishing and weeding out serious offenders of legal ethics. However, Kamiya makes the case that bar associations’ complaints-handling and dispute resolution procedures do little to enhance the autonomy and dignity of the legal profession. This is because ethical oversight is premised on the narrower, neo-liberal view of the legal profession as a market-based service-provider rather than a broader, public-oriented philosophy of lawyers defending the rule of law and constitutional freedoms.

In “The Limits of Change in Japanese Criminal Procedure”, Johnson and Vanoverbeke express reservations about the substantive impact citizen participation has had on the Japanese criminal justice system. Although Japanese citizens judge can make findings of fact and law in serious criminal cases as lay judges, can participate in criminal trials as victims of crime, and can review non-charge decisions by prosecutors, these reforms have not had the desired democratic impact that reformers envisaged. The authors argue that this is because the reforms are too narrowly targeted and, as a result, have largely cemented the status quo rather than transformed criminal justice.

In “Gender and Law Scholarship in the Law in Japan Field: A Comprehensive Bibliographic Study”, Levin and Hiraoka provide a valuable resource for researchers by indentifying around 150 works published between 1962 and 2019, divided into multiple sub-topics. Indeed, their listing suggests that gender is not only an “enduring” topic in the English-language literature on Japanese law, but also perhaps an “escalating” topic. The second edition of Japanese Business Law in Western Languages[4] had already identified around 40 publications in English (plus several in German and French) directly related to women or gender, including one as early as 1979,[5] in its Part III (Individual Works: Selective Bibliography 1970-2012). This is despite that Bibliography volume being focused on Japanese law related to business, and deliberately not attempting to be comprehensive. Most of those 40-odd publications were listed under Labor Law, which also included many publications on part-time work generally. Some such publications are also listed, noting their indirect impact on women, in this helpful more recent and wide-ranging bibliography by Levin and Hiraoka.

These articles make important contributions to our understanding of the endurance of institutional design and function in the Japanese legal system. In particular, they show that conservatism — whether it is in the cautious management of reported case law, the neo-liberal philosophy that defines legal ethics, or the narrowly-focused scope of criminal justice reforms — ensure gradual transformation[6] rather than radical change in important areas of the Japanese legal system.

[1] For the conference program, key participants and abstracts of presentations, see https://japaneselaw.sydney.edu.au/2019/04/japanese-law-compared-past-present-and-future/.

[2] For more information, including about (gratis) membership, see http://www.anjel.com.au/.

[3] See https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (as of 15 April 2020).

[4]Harald Baum, Luke Nottage, Joel Rheuben and Markus Thier,Japanese Business Law in Western Languages: An Annotated Selective Bibliography (Hein, New York, second edition, 2013).

[5] Catherine Brown, “Japanese Approaches to Equal Rights for Women: The Legal Framework”, in: Law in Japan 12 (1979) 29-56. These publications were identified by searching under “equal opportunity” or “equal opportunity law” (8 separate publications), “equality” (11), “gender” (7), “women” (11) and “sexual harassment” (3)– without double-counting those with several of these terms in the titles.

[6] Compare also Luke Nottage, Leon Wolff and Kent Anderson (eds) Corporate Governance in the 21st Century: Japan’s Gradual Transformation (Elgar, 2008), especially chapter 2 (with a version also at https://ssrn.com/abstract=885367).

New Frontiers in International Arbitration for the Asia-Pacific Region (8): Confidentiality vs Transparency in ICArb and ISDS

Confidentiality is still widely seen as significant advantage of international commercial arbitration (ICA) over cross-border litigation, especially perhaps in Asia. This can be seen in rules of most arbitral institutions. Automatic (opt-out) confidentiality is also now found in many national laws, including statutory add-ons to the UNCITRAL Model Law and/or through case law for example in New Zealand, then Hong Kong, Singapore, Malaysia, and eventually Australia.

Yet there remain variations in the timing of these developments as well as the scope and procedures associated with exceptions to confidentiality. There is also no confidentiality provided in Japan’s later adoption of the Model Law, although parties mostly choose the JCAA so opt-in to its Rules, which have somewhat expanded confidentiality obligations since 2014.

Another recent complication is growing public concern over arbitration procedures through (especially treaty-based) investor-state dispute settlement (ISDS), especially in Australia since an ultimately unsuccessful treaty claim by Philip Morris over tobacco plain packaging legislation (2011-15). Statutory amendments in 2018 reverse automatic confidentiality for Australia-seated ISDS arbitrations where the 2014 UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration. Concerns over ISDS may impede Australia enacting provisions for confidentiality of arbitration-related court proceedings, which could not be revised recently in New Zealand against the backdrop of its new government’s anti-ISDS stance.

Growing transparency around ISDS arbitration is welcome given greater public interests involved in such cases, but transparency should not be simply transposed into commercial dispute resolution through ICA as the fields are overlapping but distinct. Confidentiality in ICA has the disadvantage of exacerbating information asymmetry, making it harder for clients and advisors to assess whether particular arbitrators and lawyers provide value for money. But confidentiality allows arbitrators in particular to be more robust in proceedings and drafting rulings, thus countering the rise in ICA delays and especially costs. More transparency around ISDS, as well as initiatives like “Arbitrator Intelligence” and experiments in reforming Arbitration Rules (eg recently by the ICC), can help reduce information asymmetry for users anyway, while retaining various advantages of confidentiality particularly in ICA.

My draft paper, presented recently in Rome and for the USydney conference on Friday 15 November, elaborates these tensions between confidentiality and transparency in ICA and ISDS, focusing on Australia and Japan in regional context. Both countries still get few ICA cases but are trying to attract more [see the ABA inquiry report by Roger Gyles QC now available via https://austbar.asn.au/singapore-2019/papers]. They are taking somewhat different approaches to confidentiality in that field, while negotiating investment treaties that increasingly provide transparency around ISDS arbitration.

Nottage, Luke R., Confidentiality versus Transparency in International Arbitration: Asia-Pacific Tensions and Expectations (August 29, 2019). Sydney Law School Research Paper No. #19/52, August 2019. Available at SSRN: https://ssrn.com/abstract=3444692

Japanese Law Compared: Past, Present and Future

The Inaugural ANJeL-in-Europe symposium, organised by the new ANJeL-in-Europe convenor A/Prof Giorgio Colombo from Nagoya University, will be hosted by the University of Pavia on 23 September 2019. This workshop-style symposium will share current (or planned) research comparing Japanese law. Presenters will explain not only their (expected) findings but also whether and how their choice of topic or research method may be influenced by their home jurisdiction’s legal tradition or approach towards comparative law. The symposium will then consider scope for productive research collaboration, as well as potential joint teaching and community outreach initiatives, across national borders within and beyond Europe. ANJeL co-directors and other key members will share their experiences of such cross-institutional cooperation since 2002. A broader aim of this symposium is to explore establishing a similar network of scholars and legal professionals across Europe, interested in engaging with Japanese law.

Continue reading “Japanese Law Compared: Past, Present and Future”

New Frontiers in International Arbitration for the Asia-Pacific Region (2): Japan, China, Hong Kong, Australia and Singapore

Here are some papers to be presented and discussed at a symposium on Monday 15 July at Hong Kong University, as part of a joint research project over 2019 with the University of Sydney Law School.

Continue reading “New Frontiers in International Arbitration for the Asia-Pacific Region (2): Japan, China, Hong Kong, Australia and Singapore”

Corporate behaviour, dispute resolution and Japanese law: JSAA conference session (3 July 2019)

This is the title of a panel for the next Japanese Studies Association of Australia (JSAA) conference, to be held 1-4 July at Monash University in Melbourne. The panel will be facilitated by ANJeL and chaired by its ANU-based co-director, A/Prof Heather Roberts. The panel session (5:5) has been set for Weds 3 July 9-10.30am.
Proposed presenters are:
• Prof James Claxton, Kobe University, Prof Luke Nottage, University of Sydney (contact person), & Dr Nobumichi Teramura, UNSW
• A/Prof Leon Wolff, Queensland University of Technology
• Prof Veronica Taylor, Australian National University
• A/Prof Stacey Steele, Melbourne Law School
The four-paper panel will examine how leadership in Japanese firms is evolving (or not), in the context of recent regulatory developments in insolvency law, labour law and corporate governance. It will also consider how this may correlate with attempts to encourage firms in Japan as well as from abroad to make more use of new international arbitration and mediation facilities being developed or proposed recently for Japan.

Continue reading “Corporate behaviour, dispute resolution and Japanese law: JSAA conference session (3 July 2019)”

Japanese (legal) history, culture and “hidden” Christianity

[This is a research note for a documentary series being developed from Sydney analysing the world-wide spread of Christianity, which now attracts more believers in Asia and Africa than in the West. Christianity has not recovered from severe persecution in Japan during the 16th century, including martyrdoms in Nagasaki and Kyoto, but it has left surprising legacies – as noted even by the Gekkeikan sake company from southern Kyoto. The story reveals interesting points of intersection with Japan’s history, culture and law.]
Japan is a fascinating case study of a country in Asia that had an early and positive encounter with Christianity from the mid-16th century, but then severe persecution by Shoguns (generalissimos) seeking to maintain political control (Part 1 below). Western powers forced the country to reopen to the world from the mid-19th century and to allow Christianity to be promoted again. But the new government leaders pursued a strong secularist agenda to modernize the nation and rid itself of “unequal” trade treaties. This paradoxically fed into support of nationalist and militarist State Shinto, resulting in pressure on the Church as well as the Pacific War (Part 2). Christianity never took off in a big way in Japan, even after WW2 (Part 3), partly because it was too associated with America as a potential (& eventually actual) occupier, in contrast with Korea where Christianity and the West were seen by nationalists as potential allies against the Japanese as colonisers. Yet Christianity arguably has had a “hidden” influence through many centuries in Japan (Part 4). It can be seen as an example of how a small but dedicated following can have a disproportionate influence across many spheres – big and small (Part 5).

Continue reading “Japanese (legal) history, culture and “hidden” Christianity”

Review – Rieko Kage “Who Judges? Designing Jury Systems in Japan, East Asia and Europe”

[Draft presentation / review for an authors-meet-readers session at the Asian Law & Society Association conference, 29 Nov – 1 Dec, Bond University. Remarks / asides in [[square brackets] and/or hyperlinked references, plus some edits, were adjusted afterwards for a final version being published in (2019) Asian Journal of Law and Society]
(Cambridge University Press 2017) xiii + 264 pages, ISDN 978-1-107-19469-4 Hardback
Reviewed by: Luke Nottage
University of Sydney Law School & Australian Network for Japanese Law (ANJeL)
This is a fascinating, compellingly argued, carefully researched and beautifully written empirical analysis of how the relative strength of “new left” against traditional right and old left political parties impacts differently on the introduction and design of “jury” or “lay judge” systems since the 1990s in East Asia and beyond. Kage’s mixed-method study convincingly shows how such political dynamics result in different degrees to which power is transferred away from professional judges and towards lay people being involved in adjudicating criminal matters. This transfer of power, which reduces judicial independence vis-à-vis the public (by involving them in adjudication) during an era where independence has often been growing vis-à-vis politicians, is most extensive in Spain (with a lay judge system was introduced in 1995), quite extensive in Japan (with the saiban’in system introduced in 2004, although not implemented until 2009), less extensive in South Korea (2007), and least extensive in Taiwan (comparing a “lay observer” Bill submitted in 2012). Key benchmarks for such a comparative assessment (summarized in Table 1.2 at p17) are whether professional judges retain powers to determine which cases end up being heard by lay judges, and voting rules allow lay judges to dominate binding decisions (p15).

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Getting into Gear the Japan International Mediation Centre – Kyoto

Written by: Profs James Claxton (Kobe U) and Luke Nottage
[This is an unfootnoted draft of a posting prepared for the Kluwer Mediation Blog.]
These are heady days in international mediation circles. A panel discussion earlier this summer at an UNCITRAL conference entitled “Feel the Earth Move – Shifts in the International Dispute Resolution Landscape,” dedicated largely to mediation, captures the sentiment. Reasons for the excitement include the approval of a draft of the UNCITRAL treaty for enforcing mediated settlement agreements (the Singapore Mediation Convention), a reported 20% increase in commercial mediation in the United Kingdom, commercial mediation competitions springing up in Asia (Melbourne in 2017 and Hong Kong in 2018), and a “Belt and Road” initiative that is giving priority to mediation, characterized by some in the Chinese government as one of the “trinity” of international dispute services.
Where these movements fall on the Richter scale, and whether mediation will take an equal place in the dispute resolution pantheon, will only be known with time. But the apparent momentum offers an opportunity to return our attention to the creation of an international mediation center in Kyoto – an initiative first considered in our previous post on the Center and a related post concerning the broader reworking of international dispute resolution services in Japan. Those posts identified an initiative by the Japan Association of Arbitrators (JAA) and Doshisha University in Kyoto to create an institution, the Japan International Mediation Center in Kyoto (JIMC-Kyoto), to administer international commercial mediations with operations beginning in late 2018. If the announcement of its creation means that the Centre was put into first gear, the recent developments outlined below mean that the JIMC-Kyoto has moved into second gear. But traffic is usually heavy in Japan and things are still moving slowly.

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“Contract Law in Japan” – Kluwer Book Preface

With Profs Hiroo Sono (Hokkaido U), Kenji Saigusa (Waseda) and Andrew Pardieck (Southern Illinois U), I was pleased to co-author a book manuscript on “Contract Law in Japan”, which is now in press. As mentioned in our Preface reproduced below, it aims to provide the first English-language volume incorporating an analysis of Japan’s first comprehensive reforms to the Civil Code since the late 19th century, enacted in 2017 and coming into force from 2020.

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