4th ANJeL Australia-Japan Business Law Update seminar (Tokyo, Sat. 11 Feb.)

About the seminar:
This fourth ANJeL CLE Seminar in Tokyo, aimed especially at Australian practitioners in Japan, as well as Japanese practitioners interested in Australian law and the economy, introduces new Australian developments in labour law and consumer law, including dispute resolution aspects, comparing also some developments in Japanese law and practice. It will be followed by an informal networking opportunity.
To register and view the event flyer please click here.

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Guest Blog – Socio-Legal Issues Arising from Japan’s ‘3-11’ Disasters

In an article published in the Zeitschrift für Japanisches Recht / Journal of Japanese Law [“Die Haftung für Nuklearschäden nach japanischem Atomrecht – Rechtsprobleme der Reaktorkatastrophe von Fukushima I” (Liability for Nuclear Damages pursuant to Japanese Atomic Law – Legal Problems Arising from the Fukushima I Nuclear Accident) (ZJapanR 31, 2011)] Julius Weitzdörfer, Research Associate with the Japan Unit of the Max Planck Institute for Comparative and International Private Law (and JSPS Visiting Researcher at Kyoto University Law Faculty), examines the legal challenges currently facing the Japanese judiciary, government and economy in the aftermath of the nuclear disaster. The article (in German along with an English abstract) can be downloaded here, and shorter summary by the author is reproduced below (from the MPI website).
Luke Nottage (also now at Kyoto University Law Faculty, as a Visiting Scholar over October-November) then adds a broader perspective on the disasters afflicting Japan since 11 March 2011, based on his presentation at Tohoku University in Sendai over 14-15 October.

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Guest blog: “The Tokyo International Military Tribunal: A Reappraisal”

[Below is an overview of an intriguing book with this self-explanatory title, reviewed by my colleague specialising in public international law, A/Prof Ben Saul; and a former Research Assistant at our Sydney Centre for International Law, Naomi Hart. Their Review was published in [2010] Australian International Law Journal 295-9. The full PDF version, including footnote references, is downloadable here.
My own Review of this book co-authored by Professor Neil Boister (University of Canterbury) and Robert Cryer (University of Birmingham), is forthcoming in [2011] New Yearbook of International Law. That Review is written with my father, Richard Nottage, who in the 1960s undertook post-graduate research into pre-WW2 Sino-Japanese political and economic history using primarily the full sets of Tokyo War Crimes Trial documentation donated to the University of Canterbury (by the New Zealand Judge on the tribunal) and to Oxford University. A shorter Review written by Richard alone, published in (November-December 2010) New Zealand International Review 27-28, is already downloadable here.]

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Guest blog: Japan’s regions – could the Tohoku Earthquake lead to local government reform? by Joel Rheuben

[Joel Rheuben, LLB / BA (Hons) Syd, is pursuing postgraduate studies at the University of Tokyo Faculty of Law. We extend our condolences to the victims of the natural disasters and ongoing nuclear power plant emergency in Tohoku.]
On 30 April, the Democratic Party of Japan’s “Reconstruction Vision Team” delivered its preliminary report to Chief Cabinet Secretary Yukio Edano. Its report set out in general terms a range of potential mid- to long-term measures to reinvigorate the local economy and improve food and energy security in Japan’s Tohoku region in the wake of the 3/11 earthquake. Significantly, in addition to proposing options such as the establishment of a special corporate tax-free economic zone, the report urged the reconsideration of the relationship between the national and local governments more generally, including “keeping in sight a future State” for the region.

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Legal Education in Asia: Globalization, Change and Contexts – In Review

Downloadable here is my review essay, for the Journal of Japanese Law, of a recent 16-chapter monograph on legal education in Asia. The monograph on ‘Legal Education in Asia‘ is a fitting commemoration of the teaching, research and formidable networking capacity of the late Professor Malcolm Smith – a leader in developing Asian and Japanese Law studies in Australia, Canada and world-wide. It should be read by academics, practitioners and policy-makers with an interest in legal education, particularly in the Asia-Pacific region.

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Guest blog: “Community and the Law: a critical reassessment of American liberalism and Japanese modernity”

[Dr Trevor Ryan, Assistant Professor of Law at the University of Canberra, reviews this book by Takao Tanase (Elgar, 2010), edited and translated by Luke Nottage and Leon Wolff. His review will be published in 31 Journal of Japanese Law (2011).]
Community and the Law is a collection of seminal essays written by leading Japanese legal sociologist Takao Tanase. But it is also much more than that. With the able assistance of Nottage and Wolff as translators and editors, Tanase has distilled something of a communitarian manifesto from a vast body of work traversing multiple subjects and methodologies. The book is divided into three substantive parts: ‘a critique of American liberalism’, ‘a normative theory of community and the law’, and ‘a re-evaluation of Japanese modernity’. However, the elements of Tanase’s manifesto emerge only from a thorough and holistic reading of this challenging but rewarding book.

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Fostering A Common Culture in Cross-Border Dispute Resolution: Australia, Japan and the Asia-Pacific

This is the title of a project funded by the Australia-Japan Foundation over 2010-11 for myself and Sydney Law School colleagues, Dr Brett Williams and Micah Burch, which will consider the scope for both countries to develop greater common ground in cross-border dispute resolution law and practice, to facilitate bilateral, regional and even multilateral economic integration. Australia and Japan have recently amended their Double-Tax Treaty and are now negotiating a Free Trade Agreement (FTA). Former Prime Ministers Kevin Rudd and Yukio Hatoyama floated the idea of a broader “Asia Pacific Community” or “East Asian Community”, not limited to matters conventionally found in FTAs. The project will look at the possibility of adding:
(a) novel inter-state arbitration mechanisms, namely for:
(i) disputes about interpretation of Double Tax Treaties, a process triggered by taxpayer in a state (which must then obtain a decision from arbitrators binding on both states) and now envisaged since the 2005 revisions to the OECD Model Tax Treaty;
(ii) disputes about market access for goods and services (including typically some forms of investment), usually modelled on provisions set out in the 1994 Dispute Settlement Understanding of the World Trade Organization (itself under review, with considerable leadership from Australia);
(b) appropriate mechanisms for disputes involving a broader array of investments, in response to discriminatory or other illegal treatment from the host state, allowing investors to bring arbitration proceedings directly (often now provided in FTAs and bilateral investment treaties or “BITs”) instead of via appeals to their home state for inter-state dispute resolution;
(c) provisions or measures to improve commercial arbitration law and practice for the resolution instead of business-to-business disputes, achieved through commitments that might also be entrenched through treaties, but potentially instead through parallel legislation in each state, or through common Rules or agreements among the main Japanese and Australia arbitral institutions).
The project will also involve Professor Tatsuya Nakamura, former ANJeL Research Visitor and General Manager in the Japan Commercial Arbitration Association, and anyone willing to share experiences or views in these three fields (particularly in Australia or Japan) is very welcome to contact me at first instance.

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New Legislative Agendas, Legal Professionals and Dispute Resolution in Australia and Japan: 2009-2010

This is the title of my third paper in a series of edited and updated selections of my postings to the ‘East Asia Forum’ blog (indicated with a double asterisk in the Table of Contents below) and this partly-overlapping ‘Japanese Law and the Asia-Pacific’ blog. They mainly cover developments from mid-2009 through to mid-2010, with a focus on law and policy in Australia and Japan in a wider regional and sometimes global context. The paper is freely downloadable here.
Half of the postings edited for the paper introduce some new policy and legislative agendas proclaimed by the then Prime Ministers of Australia (Kevin Rudd, in late July 2009) and Japan (Yukio Hatoyama, through the Democratic Party of Japan [DPJ] which he led to a remarkable general election victory in late August 2009). Both had resigned by mid-2010, indicating some of the difficulties involved in implementing ambitious reforms in both countries. All the more so, perhaps, if innovative measures are to be added to both countries’ Free Trade Agreements (FTAs) in order to foster more sustainable socio-economic development in the aftermath of the Global Financial Crisis (GFC).
The remaining postings end by introducing Australia’s regime for international (and domestic) commercial arbitration enacted in mid-2010, centred on a United Nations Model Law – like Japan’s Arbitration Act of 2003. However it sets these enactments in broader context by focusing on legal professionals – lawyers, judges and specialists in Alternative Dispute Resolution (ADR) – as well as aspects of the legal education systems in both countries. Those systems will need to gel better as well for both Australia and Japan to achieve the ‘cultural reform’ needed to generate sustainable critical mass in commercial (and investor-state) arbitration activity.

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International Commercial Arbitration Reform in Australia, Japan and Beyond

Australia’s long-awaited International Arbitration Amendment Act 2010 (Cth) received Royal Assent on 6 July, after the Senate agreed on 17 June to the Bill introduced to the House of Representatives on 25 November 2009 as revised by the federal Government itself on 17 March 2010. The International Arbitration Act 1974, as thereby amended (‘amended IAA’, at http://www.comlaw.gov.au), is set in broader context by the first book devoted to this important field of dispute resolution (‘DR’) law and practice: Luke Nottage and Richard Garnett (eds) International Arbitration in Australia (Federation Press, Sydney, forthcoming October 2010: see Prelims PDF downloadable here).
This eleven-chapter work adds a Preface from NSW Chief Justice Spigelman, a powerful proponent of arbitration and broader access to justice as well as judicial exchange with Japan. It is partly dedicated to Professor Yasuhei Taniguchi, one of my inspiring former teachers at Kyoto University in the early 1990s and a Distinguished Visitor to Sydney Law School over July-August 2009. He is also renowned as a practitioner of international commercial arbitration (ICA), having served for example as arbitrator in an ICC arbitration in Melbourne, as well as a former Judge on the WTO Appellate Body.
The amended IAA brings new promise for ICA in Australia, and may offer lessons for countries like Japan. But Australia can also learn from Japan, especially the thorough way in which it goes about legislative reform.

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Judicial Education and Training in Japan

To qualify as a lawyer (bengoshi) with full rights to give legal advice and represent clients – and also to be appointed as a senior court judge or public prosecutor – candidates must pass the National Legal Examination (shiho shiken), and then be trained at the Legal Research and Training Institute (LRTI). University legal education still takes place primarily at the undergraduate level. Every year, about 45,000 students graduate with a Bachelor of Laws. However, most of them do not become lawyers, instead finding employment in governmental organs or private corporations, because it has been extremely difficult to pass the National Legal Examination. In 2004, while more than 40,000 people took the Examination, less than 1,500 examinees passed. The number of successful examinees is intentionally limited. The number was 500 in 1990, then gradually increased to 1,000 in 2000, and to around 1500 in 2004. It was expected rise to around 3,000 per annum in 2010, as part of a broader program of judicial reforms underway since 2001, but the recent election of a new President for the Japan Federation of Bar Associations now makes this very unlikely.
Another aspect of the agenda advanced by the Judicial Reform Council (JRC) related to the training of prospective legal professionals was the inauguration of 68 new postgraduate “Law Schools” from April 2004. However, although it is easier for their (carefully selected) students to pass a “New Legal Examination” (shin-shiho shiken), it remains one of the most difficult in Japan – with a pass rate of about 30%. The old shiho shiken, which could be attempted without any university degree, has been gradually phased out to allow the new Law Schools to get established, although (as recommended by the JRC in 2001) a small new scheme will be introduced to allow those unable to afford Law School to still qualify to become a bengoshi, prosecutor or Judge.
But what happens after this Examination and when one joins the almost 3,000-strong judiciary in Japan?

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