Unfair Consumer Contracts Law Reform in Australia (at last), Japan and Europe

Compared to Australian and New Zealand legislation, Japan’s Consumer Contracts Act 2000 has quite narrow restrictions on the bargaining process leading up to the conclusion of contracts between consumers and commercial suppliers (Luke Nottage ‘Nihon-Nyujirando Shohishakeiyakuho [Consumer Contract Law in Japan and New Zealand]’ 1620 Toki no Horei 4-5, June 2000). But it adds a ‘general clause’ regulating unfair contract terms, voiding those that ‘impair the interests of consumers unilaterally against the fundamental principle’ of good faith under Civil Code Art 1(2), as well as targeting some specific types of terms. The Consumer Contracts Act also extends to all types of contracts (except employment contracts: Art 48), and defines ‘consumer’ broadly as any individual not contracting for a business purpose (Art 2).

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Arb-Med and New International Commercial Mediation Rules in Japan

A recent issue of the Japan Commercial Arbitration Association (JCAA) Newsletter is largely devoted to these topics (No 22, July 2009). Sydney Law School and ANJeL are privileged to host not only one of Japan’s doyens in ICA (and other cross-border dispute resolution, especially WTO procedures), Professor Yasuhei Taniguchi (over July-August 2009). We also welcome (over September – March 2010) Kokushikan University Professor Tatsuya Nakamura, a leader of Japan’s ‘new generation’ of arbitration specialists who heads JCAA’s Arbitration Department.
They have already got me Download filethinking further about Arb-Med (arbitrators encouraging parties to settle their dispute), in the context also of interesting new JCAA Rules focused more specifically on Mediation. Both developments are important for Australia, presently reviewing its legislative and institutional framework for international commercial arbitration (ICA), as well as for many other Asia-Pacific countries intensely interested nowadays in efficient mechanisms to resolve cross-border disputes.

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International Investment and Commercial Arbitration in Australia and Japan: Shared Challenges, Different Solutions?

Australia and Japan face a remarkably similar challenge. Few international arbitrations have their seat in either country, despite various initiatives undertaken over the last decade or two. Both Australia and Japan probably need to adapt quite radical measures to overcome remaining barriers to attracting international arbitration activity to their respective shores. This shared problem is serious not just because their arbitrators, lawyers, institutions or local economies miss out on business – after all, at least the arbitrators and lawyers can still earn fees by deploying their skills in arbitrations further abroad. The problem is serious also because low levels of international arbitration activity in both countries limit the potential to develop domestic arbitration, ADR more generally, and indeed effective civil procedure.
Despite the shared challenge, however, quite radical solutions for each country may differ somewhat. Expedited arbitration procedures may be a particular selling point for Australia, but not Japan. Caucusing in Arb-Med may work in Japan, but not Australia. And Japan may have more scope than Australia to develop international arbitration through a ‘whole-of-government’ approach that promotes investment arbitration provisions, for example, even in treaties with other developed countries.

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Law and Community: A Critical Reassessment of American Liberalism and Japanese Modernity

This is the title of our translated and edited collection of essays written in Japanese over the last two decades by a leading legal sociologist in East Asia and world-wide, Professor Takao Tanase (in press, forthcoming January 2010 from Edward Elgar). Leon Wolff and I hope to present an outline at the Inaugural East Asian Law and Society Conference to be held on 5-6 February 2010 at the University of Hong Kong, supported by a Collaborative Research Network within the (originally US-based) Law and Society Association.
Tanase’s empirically-based critique of legal legalism is important not only for the United States, which tends to represent an extreme case. It also helps in assessing developments in East Asian countries increasingly exposed or attracted to American views of how law does and should relate to society, including Japan – but also perhaps China (see eg Tanase, 27(3) Mich J Int’l Law, 2006). Tanase’s neo-communitarian critique also presents a challenge to liberalism more generally, making his reassessment particularly timely for two reasons. First, the Global Financial Crisis was prompted partly by a particular liberal vision of how markets do or should operate. Secondly, countries like Japan have now experienced a decade of reform discussions and initiatives allegedly aimed at “Americanising” the judicial system and the legal profession.

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Who Defends Japan? Government Lawyers and Judicial System Reform in Japan and Australia

At the JSAA-ICJLE conference held at UNSW over 13-16 July 2009, I presented a pathbreaking comparative introduction into how the Japanese government delivers legal services, especially the central government in its high volume of litigated cases. (I also contributed to a panel discussion on “”Bridging the Gap between Japanese Language and Japanese Legal Studies” – click here for abstracts and Powerpoints.)
JSAApanel.jpg
This presentation was based on a draft paper co-authored with Ritsumeikan University Associate Professor Stephen Green, a former lawyer for the Australian government and joint ANJeL-in-Japan Program Convenor, and Meiji University political scientist Professor Shinichi Nishikawa. We are bringing together a detailed manuscript for a law journal, as well as a shorter version for the next proposed book by Wolff, Nottage & Anderson (eds) Who Judges Japanese Law? Popular Participation in Japan’s Legal Process. Our analysis begins to fill a significant gap in the literature comparing Japan’s legal profession. This lacuna is all the more surprising, given Japan’s efforts at comprehensive reform of its judicial system underway since 2001.

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Possibilities and Pitfalls in Laws Affecting Children of Australian and Japanese Parents

Responding partly to the May judgment of the German Constitutional Court upholding a ban on hyphenated triple-barrelled surnames, Lisa Pryor suggests we adopt ‘the Spanish solution’ (‘Repetitive name injury‘, Sydney Morning Herald, 6-7 June, News Review p7). That is, children get two surnames, one from each parent. She also suggests we ditch middle names. But middle names already can be used to good effect to address her concerns, especially in the Australia-Japan context.
On the other hand, there remains a problem with Japan’s Nationality Law, despite its recent amendments, that might catch out children of Australian and Japanese parents.

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Japanese Law in English through the Internet: Take Two

[English version for: Baum, Nottage et al’s Bibliography chapter in Harald Baum (ed) Handbuch des japanischen Handels- und Wirtschaftsrechts [Handbook of Japanese Commercial and Economic Law] (Carl Heymann, Cologne, forthcoming 2009)]
When Harald Baum and I translated and expanded the original Bibliography chapter in the first edition of this book, and published it as Japanese Business Law in Western Languages: An Annotated Selective Bibliography (Fred B Rothman, 1998), we added a new section introducing the online resources that were already increasingly available for free over the Internet. We also created a webpage – Japanese Law Links, now archived at Sydney Law School – that updated and expanded our introductions to resources made public by various types of organisations.
After another decade, following further exponential growth in the Internet as well as steady increases in interest and writing about Japanese law world-wide, it is now both easier and harder to offer a guide to such online resources. It is harder to be as comprehensive in reviewing them, because of their sheer volume, and there is the added difficulty of selecting the more authoritative and useful resources. However, our task is also easier in that there are now several well-established and reputable websites. They often contain (sometimes annotated) links to other resources, and often original material, in Western languages – especially in English, which is therefore our main focus in this chapter. It is also easier because of higher-quality Internet search engines, such as Google, although no search engine can ever be perfect – as we show next.

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Economics, Politics, Public Policy and Law in Japan and the Asia Pacific in 2008

All my blogs over July-October 2008, posted originally with full hyperlinks at http://eastasiaforum.org/author/lukenottage/], have been edited and updated as:
Nottage, Luke R., ‘Economics, Politics, Public Policy and Law in Japan, Australasia and the Pacific: Corporate Governance, Financial Crisis, and Consumer Product Safety in 2008’ (November 3, 2008) Sydney Law School Research Paper No. 08/134, Available at SSRN: http://ssrn.com/abstract=1295064 (and forthcoming, early 2009, in Ritsumeikan Law Review)
Some of the individual topics focused more directly on Japanese Law, asterisked below, are also available on this USydney blog:
* 1. Taking the Australia-Japan FTA negotiations to new levels
* 2. Whaling: What can law add to science, economics, ethics and politics?
3. Australia also should ‘Rail at Australian’s Tabloid Trash’ about Japan
* 4. Consumer over-indebtedness in Japan, Australia and the US
* 5. Dodgy foods and Chinese dumplings in Japan
* 6. FDI and corporate governance in Japan
* 7. Investor-state arbitration for Indonesia, Australia and Japan
8. Rivals: China, India and Japan – economic, not Olympic?
* 9. The politics of Japan’s new Takeovers Guidelines
* 10. Tables turned in Japanese and US financial markets
* 11. Lessons from Japan for the US financial crisis
* 12. The financial crisis – and loansharks in Japan and NZ
* 13. Consequences of melamine-laced milk for China, NZ, Japan and beyond
14. Political dynasties in Japan, the US, Australia … but not NZ?
* 15. A New Consumer Agency for Japan?

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