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.

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

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Again, yes (p 211):

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

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

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

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

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

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

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

Yes (pp225-6):

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

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

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

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

* * *

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

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

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

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

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

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

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

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

Does he feel he is owed an apology? 

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

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

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

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

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



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

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

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

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

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

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

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

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

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

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

Corruption and Illegality in Asian Investment Arbitration

Written by: Asst Prof Nobumichi Teramura (UBD-IAS, CAPLUS affiliate) and Luke Nottage

[Updates: I have co-authored draft introductory and Thailand chapters for this book project proposed with Springer, and will present them at an invitation-only webinar for book contributors hosted by UBrunei on 15 June 2022, as well as at Griffith University’s Law Futures Centre on 21 July 2022.]

The Institute of Asian Studies at the Universiti Brunei Darussalam (UBD-IAS) has recently funded a conference volume project on this important topic, involving several professors from the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS).

Bribery and other serious illegal behaviour by foreign investors are widely condemned in any society. The problem is that people seem not to have reached a consensus on the consequences of corruption and illegality in international investment and especially in investment arbitration – a transnational procedure to resolve disputes between a foreign investor and a host state. A core issue is whether a foreign investor who violated a host state’s law would be awarded protection of its investment, as per its contract with the host state and/or the applicable trade or investment agreement between the home state and the host state. Some suggest such protection would be unnecessary, as the investor committed a crime in the host state, while others attempt to establish an equilibrium between the investor and the host state. Some others claim to protect investment, invoking the sanctity of promises made. This research explores ‘Asian’ approaches toward the issue, considering the extent to which significant states in Asia are likely to become ‘rule makers’ rather than ‘rule takers’ regarding corruption and serious illegality in investor-state arbitration. To this end, we will employ a comparative method, inviting scholars from the Asia-Pacific region, including UBD-IAS and other institutions.

The Principal Investigator is Dr Nobumichi Teramura, the Co-Principal Investigator is Assoc Prof Bruno Jetin (UBD-IAS Director), Luke Nottage (appointed also now a Visiting Professor at UBD) is another contributor and the others are listed below. Many have previously worked together on related Asia-focused projects, notably their co-edited volume with Shahla Ali on New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution (Wolters Kluwer 2021) and Luke Nottage’s book co-edited with Julien Chaisse on Investment Treaties and International Arbitration Across Asia (Brill, 2018; expanding on country reports from a 2017 JWIT special issue on ASEAN with Prof Sakda Thanitcul as joint special editor and supported by the Sydney Southeast Asia Centre).

This new project’s primary purpose is to examine Asian approaches and case studies regarding corruption and serious illegality in international investment arbitration. It focuses on corruption-related disputes between private parties and public sector entities. It also covers other serious illegal conduct by foreign investors  related to or broadly equivalent to corruption and bribery, including serious non-compliance with key provisions of national laws regulating the admission or operation of foreign investment.

Regional free trade agreements such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the Regional Comprehensive Economic Partnership Agreement (RCEP Agreement) mandate member states to combat corruption and other illegal conduct. However, they remain silent on how specifically to deal with public-private disputes arising from corruption and illegality. Trade and investment law experts have become well aware of the problem, and some suggest treaty reforms even at a global level. Against this backdrop, the research aims to accumulate Asian perspectives, for Asia to build the foundation of leading the next rounds of treaty reforms. In particular, it intends to address the following questions:

  1. Whether Asia has been and will remain ‘ambivalent’ about international law prohibiting corruption and illegality. How have Asian countries been combatting corruption and other illegal activities particularly as to foreign investment? What laws and rules exist, and how do they operate in respective jurisdictions? What are the recent developments?
  2. Whether and how Asian countries have dealt with corruption and illegality in relation to foreign investment projects. If they have faced any international investment cases, what are the outcomes and consequences?
  3. Whether Asian countries have been or are more likely to become ‘rule makers’ rather than ‘rule takers’ in international investment law (as explored generally in the Brill and Wolter Kluwers books mentioned above) regarding corruption and illegality.

Those questions will support us to achieve the central objective: to examine Asian approaches toward  corruption and illegality in international investment arbitration. As we enter an age in which Brunei is increasing its engagement with foreign companies, it is probable that there will be disputes that need to be arbitrated, and corruption and illegality in investment arbitration are issues which other countries in the region are already facing. This research project will help the Bruneian authorities and the academic community, and counterparts in other Asia-Pacific jurisdictions as well as further afield especially when engaging with this region, learn more about such topical issues and potential counter-measures.

More specific expected outcomes include:

  1. One international online research workshop in mid 2022 and one international symposium in early 2023 (depending on pandemic travel restrictions), both in Brunei, for the contributors to present their papers and exchange opinions.
  2. An edited volume in the IAS-Springer Book Series on “Asia in Transition” based on the research papers by the contributors. (A further grant will be applied for to assist with related copy-editing etc, and CAPLUS interns and other Sydney Law School resources will assist particularly with the chapters authored by CAPLUS members.)
  3. A journal article co-authored by Professor Nottage, A/Professor Jetin and Dr Teramura for a Q1 Scopus journal.

Contributors based at UBD:

Name and FICsDescription of contribution
Dr Nobumichi TERAMURA (UBD-IAS)Principal Investigator – general editor and author of chapters for the edited volume in the IAS-UBD “Asia in Transition” series
Associate Professor Bruno Jetin (UBD-IAS)Co-Principal Investigator – general editor and author of chapters for the edited volume in the IAS-UBD “Asia in Transition” series
Yang Amat Mulia Pengiran Indera Negara Pengiran Anak Haji Puteh ibni Al-Marhum Pengiran Pemancha Pengiran Anak Haji Mohamed AlamGeneral contributor (re corruption, investment, arbitration and the Asia-Pacific) and author of the forewords of the edited volume
Professor Ahmed Masood Khalid (UBD-SBE)Contributor (re business and corruption)
Dr Masairol Bin Haji Masri (UBD-SBE)Contributor (re business and corruption)
Dr Hammeed Abayomi Al-Ameen (UBD-SBE)Contributor (re business law and corruption)

Other Contributors:

Professor Luke NottageUniversity of Sydney, Australia (CAPLUS Associate Director); UBD (visiting professor)Co-organiser – general editor and author of chapters for the edited volume in the IAS-UBD “Asia in Transition” series
Dr Colin Ong QCArbitration Association of Brunei Darussalam; and Colin Ong Legal ServiceContributor (re standard of proof for corruption allegations)
Professor Sakda ThanitculFaculty of Law, Chulalongkorn University, ThailandContributor (re Thailand)
Professor Sirilaksana KhomanFaculty of Economics, Chulalongkorn University; National Anti-Corruption Commission (NACC), ThailandContributor (re Thailand)
Mr Antony CrockettHerbert Smith Freehills, Hong KongContributor (re Indonesia)
Professor Simon ButtUniversity of Sydney (CAPLUS Co-Director)Contributor (re Indonesia)
Professor Romesh WeeramantryNational University of Singapore; Clifford ChanceContributor (re Lao Republic)
Justice Anselmo ReyesSingapore International Commercial CourtContributor (re corruption regulations for economic warfare)
Professor Vivienne BathUniversity of Sydney (former CAPLUS Director)Contributor (re China and Hong Kong)
Professor Joongi KimYonsei Law School, South KoreaContributor (re South Korea)
Professor Dai TamadaKyoto University, JapanContributor (re Japan)
Dr Prabhash RanjanSouth Asian University, IndiaContributor (re India)
Dr Martin JarrettMax Planck Institute, Heidelberg, GermanyContributor (re general investment law and investor misconduct)
Professor Tim LindseyUniversity of Melbourne, AustraliaContributor (re Indonesia)
Dr Jocelyn CruzDe La Salle University, the PhilippinesContributor (re the Philippines)

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: Pandemic Pressure Points –Economics Governance and Society in Japan

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

On 25 August 2021, the Australian Network for Japanese Law (ANJeL), the Australia-Japan Society of New South Wales (AJS), the Australia-Japan Research Centre (AJRC), the Japan Studies Association of Australia (JSAA) and the Centre for Asian and Pacific Law (CAPLUS) delivered a timely seminar entitled “Pandemic Pressure Points: Economics, Governance and Society in Japan”. The webinar [recorded here] was moderated by Dr Rowena Ward, JSAA Treasurer and Senior Lecturer in Japanese studies at the University of Wollongong. Panellists were Professor Yasuko Hassall Kobayashi, Associate Professor at Ritsumeikan University’s College of Global Liberal Arts (and Honorary Associate Professor, ANU College of Asia and the Pacific); ANJeL co-director Professor Luke Nottage from the University of Sydney Law School; and Professor Shiro Armstrong, AJRC director and Associate Professor of economics at the Australian National University (also co-editor of the East Asia Forum blog). Closing remarks were given by Masahiko Kiya, Consul-General of Japan in Sydney, and also Patron of AJS and on ANJeL’s Advisory Board. We had the privilege to explore diverse and topical themes: the impact of the pandemic on Japanese governance and its legal system, the impact of the pandemic on the Japanese economy, how the pandemic has disadvantaged vulnerable groups, and, among other themes, the emergence and potential of digitalisation in Japan. [Comparing developments in Japan with China, Indonesia and Malaysia, as part of an ANJeL/CAPLUS/CAPI (UVic) webinar around Prof Victor Ramraj’s edited book on COVID-19 in Asia, see the 28 May 2021 webinar recording here.]

Dr Ward commenced the substantive part of the seminar by sharing graphs reflecting vaccination and case numbers in Japan. While the number of cases has substantially increased since the middle of June 2021, deaths have recently come down compared to the 7-day average (~7 compared to 32), and have been kept very low by international standards even during earlier waves. Turning to age and sex statistics, males, especially in their 80s, are generally at a higher risk of death than females, and recently, there have been virtually no women in their 30s who have died from COVID. Around 40% of Japanese have received two doses. This number is somewhat higher than in Australia, which has also ramped up vaccinations over the last two months.

Following the statistics, Professor Kobayashi presented and dissected the economic disparity between women and men in the Japanese labour market amid the pandemic and the general social picture. Professor Kobayashi noted that women have generally had less income than men (~251.0 to 338.0); have been subject to precarious, part-time jobs at a higher rate than men; and have experienced more unemployment than men. Women with child/ren had the highest unemployment rate (11.5% compared to 4.2% for men and 9.1% for women) according to May 2020 statistics. As Professor Armstrong later suggested, the actual rate of unemployment figure may be unknown for all women (and men), as the unemployed may not have started looking for employment and are therefore not incorporated in unemployment statistics. Professor Kobayashi noted that there has been an increasing number of telephone consultations for domestic violence (skyrocketing from around 9,000 in January 2020 to over 17,000 between March and April 2020). Furthermore, women have found themselves tasked with ever-more domestic responsibilities, and would like men to participate more in the household than pre-pandemic (21% of tasks to about a quarter).

Professor Armstrong turned to the Japanese economy, and discussed the immediate impacts of the pandemic on the economy. He noted that, while the economy did not shrink this quarter, we may miss the ‘Olympic bounce’ that historically accompanies the Olympics (Tokyo was in a state of emergency and we did not see the type of tourism that follows the Olympics). Nonregular workers, women, young people, the elderly, and the vulnerable in Japanese society have particularly experienced financial hardship. Unlike Australia, Japan has provided limited stimuli, and it has taken considerable time for Japanese to receive checks and masks.

Later, Professor Nottage discussed Japanese law before and amid the pandemic. Japan has been comparatively unusual in pandemic management [but rather like eg Sweden] by not imposing criminal or other legal sanctions on individuals, but instead relying mainly on community norms and self-responsibility to limit movement and COVID-19 spread. One question is whether this provides another example of what Professor John Haley identified as a persistent pattern of “authority without power” in Japanese legal history, meaning authorities don’t have or want to invoke legal powers. An illustration is the practice of informal “administrative guidance” to influence business activity, quite common until the 1980s.

However, Professor Nottage observed that with the COVID-19 pandemic, the government did have constitutional power to extend emergency powers to restrict business activity (which it eventually legislated for, but still in a soft manner compared to Australia and other countries) and even to restrict movement by citizens. The government seems to have decided not to introduce harder lockdown measures because legally they still have to be proportionate, and Japanese citizens and firms generally act responsibly anyway. Another reason is that compensation should be paid if constraints are legislated, and the Japanese government already has high levels of national debt. The response has arguably struck quite a good balance, if we focus on the very low death rates (as the government seems to have done from the outset of the pandemic) combined with benefits from keeping the economy largely open. As one Tokyo-based law professor remarked, a visitor nowadays wouldn’t really know that Japan was going through a global pandemic, except for people wearing masks in crowded situations, somewhat fewer commuters as more work or have university studies from home, and some organisations restricting numbers and hours of operation.

The recent reliance mainly on self- and community responsibility does sit somewhat uneasily with the reforms implemented after an all-of-government report on justice system reform, aimed at making the law more part of everyday life in Japan. Those changes to civil and criminal justice, as well as the expansion of legal education and professionals, were aimed at allowing businesses more flexibility instead of ex ante regulation by public authorities, but improved processes to provide ex post remedies for misbehaviour through more functional courts or alternative dispute resolution systems. But in public health, especially in crises like a pandemic, prevention is usually better than cure. There are downsides, too, in moving socio-economic ordering in an overly legalistic direction.

Professor Nottage also mentioned some areas where the pandemic has had significant impact on Japan’s legal system, drawing on a series of YouTube interviews with various experts in Japanese law, funded through the Japan Foundation Sydney for ANJeL and the JSAA. Japan’s contract and consumer law systems seems to be responding comparatively well, but the pandemic challenges have forced the courts to bring forward plans to digitalise their still mostly paper-based procedures. By contrast, the rapid worldwide shift to remote hearings in international arbitration and mediation creates opportunities for newly established ADR institutions in Japan, but also significant competition.

The webinar also had a variety of questions and answers during the question segment, in the Sydney Law School podcasts recording. For further developments and perspectives, the AJRC is holding a Japan Update 2021 online seminar on 8 September 2021 over 10:00AM-3:00PM AEST.

***

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


Australasian Consumer Law Roundtable: 1 December @ USydney

Sydney Law School, with support especially from its Ross Parsons Centre, is pleased to host this year’s Roundtable, in hybrid format on 1 December 2021, to discuss recent or emerging research and topics in consumer law and policy. In an informal interactive format, for the last fifteen years the Roundtables invite together experts in consumer law mainly from universities across Australia and New Zealand, but sometimes more widely including from Japan and other parts of Asia or even further afield, as well as some consumer regulators or peak NGO representatives. The event is open to other staff and HDR students from USydney, as the host, and any consumer law academics from Australian, NZ or Asian universities are also welcome to seek permission to attend by emailing luke.nottage@sydney.edu.au

Short presentations for discussion at this year’s Roundtable include the following [not necessarily in the order listed below]. Several involved recent or forthcoming publications that may be made available to the wider public already or after the event.

Samuel Becher (VUW)“Dark Contracts” (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3911528)Firms design non-transparent consumer contracts. This article documents the multiple non-transparent contractual mechanisms and practices that firms employ in their consumer contracts. Specifically, it delineates how firms use non-transparent tools in almost every possible contractual juncture: from the contract’s nature, scope, and language to contract performance, dispute resolution, change, and termination. The article first documents this non-transparency. Thereafter, it argues that the sum of these non-transparent components is greater than its parts. The aggregated impact of these non-transparency practices undermines fundamental contract law notions and leaves consumers disinformed and disempowered. While firms have a profit incentive to employ non-transparent contracts, bounded ethicality makes it even more unlikely that firms fully realize the harmful consequences of their contracts. Against this backdrop, the article dubs these highly non-transparent consumer contracts “Dark Contracts.” To better tackle the problem of Dark Contracts, the article proposes introducing transparency-related instruments to the law of consumer contracts to tackle this thorny challenge. It further argues that policymakers should design such concepts to (1) allow better scrutiny over firms’ practices and (2) empower consumers to make better-informed decisions.
Jason Harris (Sydney Law School)“Liability for ACL Breaches Within Corporate Groups and Franchise Systems”An emerging issue in corporate law concerns contribution orders for underpaid workers whereby the court can deem several entities to be within a ‘contribution order group’ and make another company liable for the unpaid entitlements where they have received the benefit of the work. There are broader contribution order regimes (not just for employee entitlements) in NZ, Ireland and Germany. I wonder whether ACL compensation orders had given rise to problems with corporate groups (i.e. assetless shell companies misleading, while the parent company benefits) and whether accessorial liability under ACL s236 is sufficient to address this? In other words, could contribution orders within corporate groups (loosely defined to include franchise systems) benefit consumers and are they worth looking at? I’ve done a bit of work within corporate law looking at veil piercing doctrines, and there is at least 1 TPA case on making a parent co liable for misleading conduct that was argued on veil piercing grounds (which I argued should have been decided on accessorial liability under the TPA instead). 
Jeanne Huang (Sydney Law School)“The Latest Generation of SEZs: Consumer-Oriented Unilateralism in China’s E-commerce Trade” (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3875223)WTO multilateralism is driven by manufacturers. However, in China, Cross-border E-commerce Retail Import (‘CERI’) has spurred a new, consumer-oriented trade unilateralism. CERI prospers within China’s National Cross-Border E-commerce Pilot Cities, which are Special Economic Zones aimed at using unilateral trade liberalization to meet consumers’ growing demands for high-quality foreign products. CERI enhances consumer benefits beyond reducing customer formalities and tax rates and lowering product prices. It re-conceptualizes consumer protection by treating consumers as diverse individuals rather than as a homothetic group. It also empowers consumers by making them ‘importers’ to minimize behind-the-border trade barriers. CERI warrants a rethinking of WTO multilateralism from its initial focus on corporations and capital owners to a revised focus on consumers.
Mary Keyes and Therese Wilson (Griffith U)“Protecting Consumers in International Disputes: Arbitration and Jurisdiction Agreements in Australian Law”The globalisation of markets for consumer goods and services means consumers regularly purchase goods and services from international suppliers.  These agreements typically stipulate that consumers must litigate or arbitrate, if a dispute arises, in the suppliers’ home jurisdiction.  As in other common law jurisdictions, in Australia there are no rules that deal specifically with the effect of arbitration and jurisdiction clauses in consumer contracts; their effect falls to be determined under the general principles that have been developed in the context of commercial transactions.  This article investigates the use of arbitration and jurisdiction agreements involving Australian consumers through an empirical study and evaluates the Australian laws which regulate these agreements.  It demonstrates that, while aspects of the current legal regime may have the capacity to protect consumers, such protections will not necessarily be applied. We review a number of recent cases that demonstrate this problem and suggest that changes to the Australian law are required to more explicitly protect consumers.  
Benjamin Hayward (Monash Business School)“‘Free Your Mind’: Using ‘The Matrix’ to Explain the Interaction Between the Australian Consumer Law and the CISG” For those of a certain age, the conflict between the characters Neo and Agent Smith depicted in ‘The Matrix’ trilogy of movies is well-known and is one of the great rivalries of cinema history.  What is not well-understood in the Australian legal context, including amongst lawyers who would be familiar with this Neo/Smith conflict, is the way in which the Australian Consumer Law interacts with the United Nations Convention on Contracts for the International Sale of Goods (the ‘CISG’). Though the CISG excludes consumer transactions from its scope, the fact that it defines those excluded transactions differently to the way in which the Australian Consumer Law defines consumer supplies provides scope for the CISG to displace the otherwise-mandatory ACL consumer guarantees.  Analogy with ‘The Matrix’ trilogy provides an excellent basis for explaining this interaction, and ensuring that its implications are understood by the legal profession. Young lawyers and law students are today provided more means than ever to acquaint themselves with the CISG, and to understand its place in Australian law.  Anecdotal evidence suggests that a knowledge gap still exists, however, amongst older lawyers – including those who may have grown up watching Neo and Smith’s conflict play out on the silver screen.  This presentation is directed at helping address this knowledge gap, and in turns, seeks to contribute to a better professional understanding of the interaction under analysis.
Victoria Stace (VUW)“Bills, bills, bills. What recent research has revealed about debt collection practices in New Zealand and how the law might respond” (Powerpoints here)Recent research conducted by Victoria University of Wellington has given insight into the experiences of debtors who find themselves facing debt collection. Financial mentors across the country, who see clients daily in unmanageable debt situations,  were asked questions around the conduct of debt collectors, the addition of fees and interest, and use of attachment orders. Particular issue emerged such as the use of intimidation, and use of attachment orders to benefits to collect old debts. This paper discusses the findings of that research and considers how the law can assist to improve standards of behaviour.
Vivien Chen (Monash Business School) with
Lucinda O’Brien, Ian Ramsay and Paul Ali
“An Impending “Avalanche”: Debt Collection and Consumer Harm After COVID-19” (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3917247)Debt collection activity is expected to rise significantly in 2021, as financial hardship becomes more prevalent due to the economic impact of the COVID-19 pandemic. Consumer advocates have warned of an impending “avalanche in debt collection” and have called for better enforcement of laws designed to protect consumers from harassment as well as unfair, misleading and deceptive conduct by debt collectors. Women’s groups have also pointed to a rise in economic abuse, and resulting indebtedness, in the context of a general escalation in family violence during the pandemic. This article examines the legal framework governing the Australian debt collection industry. Drawing on recent case law and a series of focus groups conducted by the authors, it outlines law reform and enforcement measures that would better protect consumers from harmful debt collection practices. These include specific measures to address the financial, social and psychological impacts of family violence and economic abuse
Sagi Peari (UWA)“Consumer Protection Law, Judge Made Law and the Concept of Coherence: Can They Co-Exist?”Consumer protection law intervenes into the traditional doctrines, principles and concepts of the backbone categories of private law: contract and tort. For instance, consumer law challenges the longstanding limited scope of “unconscionability” and the “implied terms” doctrines of contract law. Within the tort law category, consumer law reconceptualises the fundamental elements of the law of negligence. While significant parts of private law categories remain to be subject to the domain of the judge-made law, the consumer laws operate through legislation. The paper tackles the following two interrelated aspects of the interplay between consumer law legislation and the traditional private law categories: (1) the impact of consumer law legislation on the judge made law; (2) the relation of this legislation to a key philosophical concept of private law- “coherence”.
Catherine Niven (QUT)“Proposals to Modernise the EU’s General Product Safety Directive: A Blueprint for Australian Reform” [pre-recording of presentation here]There has been little progress on Australian product safety reforms since the 2019 public consultation on the regulatory impact assessment of introducing a General Safety Provision (GSP). Since this time, the global COVID pandemic has accelerated growth in online shopping, exacerbating the key weakness of the Australian regime: its lack of a GSP. The European Commission (EC) has identified that the growth of e-commerce has decreased the effectiveness of its General Product Safety Directive due to its lack of specificity to online selling and applicability to new e-commerce actors in the product supply chain. In June 2021, the EC commenced public consultation on significant reform proposals aimed at modernising its framework. These include dedicated reforms for online marketplaces with obligations focussed on their place in the product supply chain, specific provisions related to online sales, widening the mandatory incident reporting obligation and using new technologies to conduct product safety recalls. There appears to be significant momentum behind these reforms to be delivered under the New Consumer Agenda of 2020. Could the developments in Europe be an opportunity for Australia to build on the last decade of reform discussion by incorporating key European reform proposals to its product safety regime to elevate the level of consumer protection and create a fairer playing field for Australian businesses?    
Geraint Howells (Galway) [Keynote]“Consumer Product Safety and Online Platform Liability” (Powerpoints here)Platforms play an increasingly important role in e-commerce. This paper highlights different approaches to making them responsible and potentially liable for dangerous goods. Voluntary, regulatory and civil liability are all potential options being explored in Australia, the EU and US. This paper hopes to prompt discussion about the appropriate way forward.
Jeannie Paterson and Yvette Maker (UMelbourne)
“The Role of Consumer Protection Law in Responding to the Risks of ‘Intelligent’ Consumer Products”Intelligent consumer products like voice-activated digital assistants potentially offer tremendous benefits to many consumers. They are labour-saving devices that create opportunities to free consumers from mundane tasks and assist them to make more informed and rational decisions. They have also been promoted for their potential to facilitate the activities of daily living for older people and people with disability. Yet while intelligent consumer products may offer convenience and enhanced accessibility, they also carry risks of harm to consumers in relation to violation of privacy, bias and discrimination and interference with decision-making autonomy. This presentation will explore the role of consumer protection law in responding to these risks, with a particular focus on issues of accessibility and equity. It will also consider the role of codes of AI ethics, and the complementary contribution of other fields of law and policy, in addressing matters on which consumer protection law has less to say.
Nicola Howell (QUT) and Jeannie Paterson (Melbourne)“Remedies for emotional harm in Australian consumer credit law”Emotional harm is a highly foreseeable outcome of financial stress – whether this arises from borrowing more than is manageable (unsuitable credit), difficulties in repaying credit arising from unforeseen life contingencies (hardship) or not being able to access credit (financial exclusion). Together with co-regulation (AFCA) and self-regulation (eg, Banking Code of Practice), the National Consumer Credit Protection Act now provides an extensive regulatory framework that should help to prevent or reduce financial stress for Australian credit consumers, however, the extent to which this framework can facilitate remedies for emotional harm (and not just financial harm) has not yet been subject to academic consideration. In this paper, we seek to address this gap by examining the current and potential scope for remedies for emotional harm arising from credit law contraventions. We begin by considering the emotional harms which may arise from over indebtedness. We then identify the key statutory provisions specifically aimed at alleviating the effects of unsuitable credit and financial hardship, and the associated remedies for breach. We argue that given the purpose of these regimes it should be open to courts to award remedies aimed at responding to emotional harm. We consider the role of regulators and AFCA in remedial relief responding to emotional harm. We scrutinise the value to consumers of such responses before turning the final part to consider remedies for failure by lenders to engage with the hardship regime and the gaps in this regime in providing real obligations and remedies/redress for breach.
Zofia Bednarz (UNSW)“Using Consumers’ Data to Determine the Target Market for Financial Products: The Difficult Marriage between Financial Law and Data Protection”Digitalisation has had a profound impact on financial services, with increasingly precise data profiling of consumers being one of the drivers of profit for the industry in the digital age. However, data profiling may also result in consumer harm that could range from data breaches to unfair pricing, digital manipulation, discrimination, and exclusion of vulnerable consumers. This can be particularly problematic in financial services context due to the consequences it has on consumers’ access to financial products. In this paper I focus on the requirement to determine the target market for financial products and its interplay with privacy and data protection rules. I argue that financial product governance rules requiring target market determination for products will further incentivise data profiling of consumers by financial services providers. I analyse ways in which financial firms may collect and use consumers’ data for the purpose of constructing the target market and confirming that clients who receive offers of products are within this target market. There is a real risk that financial law and data protection frameworks have failed to strike a balance between (surprisingly) competing interests of consumer protection regarding the provision of appropriate financial products and the use of consumers’ data in digital profiling. This means that the new rules on financial products governance may backfire, resulting in unintended consumer harms.
Kate Tokeley (VUW)“The Power of the ‘Internet of Things’ to Mislead and Manipulate Consumers: A Regulatory Challenge”
(https://ndlsjet.com/the-power-of-the-internet-of-things-to-mislead-and-manipulate-consumers-a-regulatory-challenge/)
The “Internet of Things” revolution is on its way, and with it comes an unprecedented risk of unregulated misleading marketing, and a dramatic increase in the power of personalized manipulative marketing. IoT is a term that refers to a growing network of internet-connected physical “smart” objects accumulating in our homes and cities. These include “smart” versions of traditional objects such as refrigerators, thermostats, watches, toys, light bulbs, cars, and Alexa-style digital assistants. The corporations who develop IoT are able to utilize a far greater depth of data than is possible from merely tracking our web browsing in regular online environments. They will be able to constantly collect and share real-time data from inbuilt IoT sensors and trackers such as microphones, cameras, GPS sensors, and temperature sensors. Artificial intelligence (AI) can be used to analyze this raw data in order to gain insights into consumer preferences and behavior, and deliver individualized marketing messages via our IoT devices. The persuasiveness of these marketing messages is likely to be further enhanced if future IoT household assistants are developed to have human-like mannerisms and appearances. This article explains how current laws that prohibit businesses from misleading and deceiving consumers will struggle to operate effectively in an IoT marketing landscape, where questions of who can be held liable, who should be held liable, what communication should be prohibited, and how to ensure enforcement, all become more complicated. It argues that current legal frameworks will need to be re-formulated in order to maintain the ability to prevent deceptive and misleading communication. It also tackles the wider question of whether legal frameworks should be re-formulated so as to add in protections against excessively manipulative marketing. The article points to several potential ways to achieve such re-formulations. Redesigning legal regimes to effectively protect consumers in a new IoT marketing landscape will no doubt be a challenge. The starting point is to confront the fact that there are genuinely difficult problems for which existing regulatory toolkits are ill-equipped to handle.
Kayleen Manwaring (UNSW)“Enforcement-in-a-box: Computational Implementation of Private Rights”The rise in use of smart devices and cyber-physical systems has also seen a rise in attempts at technological implementation of methods of enforcement of private rights (such as contract or copyright) by suppliers of services and software supporting those devices and systems. Many of these devices and systems are hybrids of physical object, software, hardware, data and services, and often are capable of being remotely disabled or modified by the software or service provider. This capacity for remote disablement or modification has the potential to be a potent tool for service and software suppliers to regulate an individual’s use of smart devices and cyber-physical systems. These methods may be used to enforce penalties against alleged breaches of private rights without recourse to a judicial or other dispute resolution process.  This presentation will report on a work-in-progress project intended to examine these issues. Brownsword has warned that ‘full-scale technological management’ by regulators of prohibited conduct (eg a regulator technologically limiting the speed of a car or disabling it) is the ‘thick end of the wedge’ in relation to ‘destabilising’ the rule of law and degrading the importance of human ‘agency and autonomy’.  Pasquale has additionally cautioned that even in circumstances where automated enforcement is efficient, ‘critically important publicly legal values risk being lost or marginalised when dispute settlement is automated.’  This project will examine if this conceptual analysis can be extended to business entities utilising technological management to directly enforce private rights, discussing research questions along the following lines: (1) What harms to individuals, and consequently what detrimental effects on public legal values (such as protection of consumers from abuse of corporate power), might arise from technological implementation in smart devices of private law enforcement methods, such as enforcement of debts, contractual conditions or intellectual property rights? (2) To what extent do existing laws in Australia regulate these harms and detrimental effects? (3) Do legal problems arise in relation to these existing laws? That is, are any of these laws under- or over-inclusive or uncertain? Are there any new harms or detrimental effects arising that are completely unregulated by existing law? (4) How can these harms and detrimental effects be mitigated from a legal (and potentially technological) point of view? 
May Fong Cheong (ACU)“Remedies for Purchasers of Forged Art: The Potential in Section 18 ACL on Misleading Conduct”Art is acquired for its aesthetic value, for the beauty of that art piece as communicated by the artist. However, art is also increasingly acquired for the authorship of the art – buyers desiring not only art, but the work of a recognised “artist”. The authorship value of well-known artists has seen art pieces fetching skyrocketing prices transforming art as objects of aesthetic expression to art as an investment tool. The ‘commodification’ and ‘financialisation’ of art provide opportunities and economic incentives to produce counterfeits and forgeries posing unseen risk to purchasers of art. Both the art enthusiast and the art investor who pays a price for a work of art are entitled to enjoy, and obtain, that which they were led to believe – that the work is authored by the artist who painted that landscape, that object on the framed canvas piece he or she had paid for. They are entitled to the goods as described, to the attribution given of the art piece and to statements warranting the authorship and authenticity of the art. However, art authentication is a complex process: at the intrinsic level to search the truth to determine its cultural and historic value and at a practical level to protect the economic value of art and the functioning of the art market. The purchaser’s challenge to acquire authentic art pieces is further compounded by the intricacies and anomalies in the art industry; one concerning aspect is the questionable practices of auction houses. As a result, art purchasers find themselves in the precarious position of not knowing if the art pieces hanging in their walls are forged. This paper first considers two legal avenues that a disgruntled art purchaser might pursue: (i) implied conditions of goods corresponding to description in the Sale of Goods legislation; and (ii) consumer guarantees of acceptable quality, and of goods as described, under the Consumer Guarantee Law. It then considers how certificates of authenticity of authorship have been decided under the Uniform Commercial Code and under the New York Arts and Cultural Affairs Law. Finally, the paper investigates recourse to art buyers under the misleading conduct provision in section 18 of the Australian Consumer Law and argues that despite some limitations, this avenue offers the best potential for success for purchasers of forged art. 
Luke Nottage (USydney), Jeannie Paterson (UMelbourne) & Erin Turner (Choice)“Post-Pandemic Rights to Repair and Other Remedies Under the Australian Consumer Law” (PDF of Powerpoints here)
Recent survey evidence from Australia’s peak consumer NGO, for a current inquiry by the Productivity Commission into rights to repair, confirms anecdotal accounts of considerable problems faced by individuals in obtaining Australian Consumer Law remedies for suppliers’ violations of mandatory consumer guarantees (eg of “acceptable quality”, including reasonable durability). Over the last decade, suppliers may have learned not to expressly disclaim ACL obligations (risking enforcement action and fines), but also that consumers need to prove a product defect, and may be particularly prone therefore not to provide remedies since the lockdowns and other impediments to accessing justice since 2020. Our presentation looks at the extent and types of problems experienced, analyses the current ACL regime, and proposes various substantive and procedural reforms to generate better consumer redress and therefore supplier behaviour.

Guest Blog: COVID-19 in Asia – China, Japan, Indonesia and Malaysia in Focus

Written by: Hao Yang Joshua Mok, student intern at the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS)

On 28 May 2021, the University of Victoria’s Centre for Asia-Pacific Initiatives (CAPI), together with the University of Sydney’s Centre for Asian and Pacific Law (CAPLUS) and the Australian Network for Japanese Law (ANJeL), hosted an online webinar celebrating the publication of Covid-19 in Asia – Law and Policy Context’. A recording of the webinar may be accessed here.

Edited by Prof. Victor V. Ramraj and published by Oxford University Press, the book is a collected volume on Covid-19 law and policy issues in Asia. It draws upon the work of sixty-one authors from seventeen jurisdictions and aims to capture the initial responses of governments in response to the pandemic and highlight likely enduring legal and policy challenges.

The online webinar drew on four chapters of the book, focusing on China, Indonesia, Malaysia, and Japan’s responses to the pandemic.

  • The China chapter was presented by A/Prof. Feng Xu from the University of Victoria and discussed by A/Prof. Jeanne Huang from the University of Sydney.
  • The Indonesia chapter was presented by Dr. Nadirsyah Hosen from Monash University and discussed by Prof. Simon Butt from the University of Sydney.
  • The Malaysia chapter was presented by Dr. Azmil Tayeb from Universiti Sains Malaysia.
  • The Japan chapter was presented by Prof. Shigenori Matsui from the University of British Columbia. Prof. Luke Nottage from the University of Sydney briefly discussed both the Malaysia and Japan chapters.

A/Prof. Xu began her presentation with a reflection of China’s largely successful Covid-19 response. She suggested that we must contextualize China’s experience as an interrelationship between coercion and consent: China’s success in imposing and enforcing strict lockdown and quarantine measures required the acceptance and consent of individuals to those conditions. Turning to the book chapter itself, A/Prof. Xu suggested that China’s emergency response involved the mass mobilization of political, economic, and social resources. While effective, such measures came at a huge cost to individual rights. A/Prof. Xu concluded that the most immediate challenge for China will be the roll-out of its vaccination program.

A/Prof. Huang echoed this theme of consent and emphasized the limited scope of the right to privacy and personal information in China. While this allowed health administrators to access personal data when managing the pandemic, it reflects the tension between coercion and consent. Drawing on her area of focus, A/Prof. Huang provided some brief remarks on civil litigation against China arising out of the pandemic – raising issues of jurisdiction and service – as well as on China’s response to foreign criticism, exemplified by its trade dispute with Australia.

Dr. Hosen suggested that the Jokowi administration’s response to the Covid-19 pandemic had been too little, too late. Despite growing cases in South East Asia in early January, the government did not impose lockdown measures but rather further opened up the country. While the government eventually escalated its measures, the pandemic was already in full swing. Dr. Hosen argued that there were four barriers that contributed to the slow response and ineffectiveness of governmental measures: first, the unhealthy relationship between the Indonesian Medical Association and the Minister of Health Affairs; second, the political rivalry between President Jokowi’s administration and the current governor of Jakarta; third, the incompetence of the Jokowi cabinet; finally, the position of conservative religious groups in rejecting the request not to organize mass prayers.

In Prof. Butt’s discussion, he suggested that issues of governance, politicking, and religion are not new issues for Indonesia. Rather, they have been brought to sharp relief by the pandemic. Moreover, putting aside the government’s shortcomings, the size and geography of Indonesia presents significant difficulty. Prof. Butt concluded that looking forward, the biggest difficulty for Indonesia would be to obtain and administer vaccines in the face of those persistent issues.

Dr. Tayeb discussed issue of improvised pandemic policy and democratic regression in Malaysia. In the lead up to the Covid-19 pandemic, Malaysia was experiencing a volatile political environment which eventually resulted in a new coalition coming into power in late February 2020. Shortly thereafter, Covid-19 emerged, and the government responded by implementing strict lockdown measures. While those measures were initially successful, the country experienced a turning point. Under the backdrop of a continued power struggle, state by-elections were occurring without much restriction. This led to another wave of Covid-19 cases. Dr. Tayeb suggested that throughout the pandemic, the government’s response evinced incoherency. Moreover, the government has been using the pandemic to avoid the convening of parliament, undermining notions of accountability and transparency.

Prof. Matsui suggested that Japan was ill-prepared to deal with the pandemic and its eventual response was slow and insufficient. The difficulty was with Japan’s fragmented and restrictive infectious disease legal infrastructure. While the government eventually revised its statute and declared a state of emergency, only soft measures were imposed, because of initial legal constraints and the effectiveness of social norms. Fortunately, infection rates and death toll remained low in Japan throughout 2020. Now, however, Japan has experienced a resurgence in Covid-19 cases and there is a growing fear that this will worsen with the Tokyo Olympics. The biggest issue ahead for Japan is with its vaccination program, especially given concerns about vaccine hesitancy among the public.

Prof. Nottage went on to compare Malaysia and Japan’s responses during the Covid-19 pandemic. He suggested that in terms of balancing public health, civil liberties, and economic activity, Japan appeared to be quite successful. Prof. Nottage queried the reasons behind vaccine hesitancy this year, especially given the communitarian norms evident last year, as vaccination programs constitute the next complex phase in pandemic management in Australia, across Asia and world-wide.

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. 

Asian Legal Conversations: COVID-19 (Japan)

ANJeL Program Convenor (Judges-in-Residence) A/Prof Stacey Steele and UMelbourne colleagues have produced or assembled webinar recordings, interview transcripts and other resources comparing how Japanese and society has managed the COVID-19 pandemic, available here.

These resources include:

Quarantine, Masks and Dis/ease: Social Discourses of COVID-19 in Japan and Korea

Sunyoung Oh, Claire Maree, Jun Ohashi and Patrick Murphy
Originally posted on the Melbourne Asia Review, 5 November 2020 [43-minute recorded webinar]

An Analysis of Japanese Responses to COVID-19 from an Administrative Law Perspective

Shusaku Kitajima, 8 October 2020 [article, building on interview with Stacey Steele (26 May, transcript here)]

Responses to COVID-19 and Japanese Criminal Justice

Reegan Grayson-Morison and Stacey Steele, 24 June 2020 [interview transcript]

Judicial Responses to COVID-19: Japanese and Victorian Courts’ Use of Technology

Reegan Grayson-Morison and Stacey Steele, 23 June 2020 [interview transcript]

Embracing Asian Law Centre Communities and Opportunities: Alumni Gathering of Japanese Judicial Visitors

Stacey Steele, 18 June 2020 [short article]

Regionalism Rises in Japan to Confront COVID-19

Dan Rosen, 21 May 2020 [short article]

Japan’s Soft State of Emergency: Social Pressure Instead of Legal Penalty

Akiko Ejima
Co-posted in collaboration with
COVID-DEM, which curates and publishes analysis of COVID-19’s impact on democracy worldwide, 13 May 2020 [short article]

Not a Sporting Chance: COVID-19 Dashes Japan’s Olympic Economic Hopes

Asialink
Originally posted on
Asialink Insights, 11 May 2020 [short article]

Improving the Effectiveness of the Consumer Product Safety System: Australian Law Reform in Asia-Pacific Context

[This is the original draft for a posting that was significantly revised and published under a different title on 29 October 2020 by The Conversation, prompting also interviews/podcasts with ABC National Radio “Life Matters” on 5 November 2020 and “Counterpoint” on 14 December 2020. This work is related to my ongoing ARC-funded joint research project DP170103136 and a JCP article published earlier this year (manuscript on SSRN.com here). A version will be presented and then discussed in the 1 December 2020 webinar for the International Association of Consumer Law (pre-recording available here) and the Consumer Law Roundtable hosted this year by QUT on 3 December. (Last updated: 1 December 2020.)]

The COVID-19 pandemic has heightened our awareness of safety risks, but also the socio-economic costs needed to reduce them. Public health interventions can also collide with human rights and constitutional principles, and undermine state capacity. Australia’s policy-makers and regulators are still facing many difficult choices to manage this new disease.

In consumer law, they and peak NGOs like Choice have also been busy grappling with a range of pandemic-related issues. These range from hand sanitiser quality through to refunds for airfares and other travel services. Nonetheless, hopefully policy-makers can now get back to some unfinished business, as we learn to live with COVID-19 while praying for a vaccine or cure.

In October 2019 the Treasury released its Consultation Regulatory Impact Statement (RIS) entitled “Improving the Effectiveness of the Consumer Product Safety System”. This was part of a suite of reform initiatives agreed after the 2016-7 review of the Australian Consumer Law (ACL), which re-harmonised consumer rights and regulatory powers nationally from 2011.

The review’s Final Report and now the RIS considered adding to the ACL an EU-style “general safety provision”. European countries (such as the UK in 1987, then the EU from 1992), as well as Hong Kong, Macau, Malaysia (1999), Canada (2010) and Singapore (2011, partially), have introduced such a GSP. It was discussed in several earlier government inquiries, notably by the Productivity Commission in 2006 and 2008, but the Commission concluded that the ACL should try some other measures first. A GSP would require manufacturers and importers to ensure that they only supply safe consumer products, otherwise risk public law sanctions from regulators.

Choice found that many Australians wrongly assume we already have this requirement. Yet the ACL currently only allows mandatory safety standards to be set pro-actively for specific types of general consumer products (currently around 40, many involving higher-risk children’s products). These specific standards take a long time to develop, usually only after serious injuries or deaths particularly within Australia. A recent example is renewed efforts to introduce a mandatory standard around button batteries, after a third child died in July and the AFL withdrew thousands of bracelets in October 2020. Regulators can also issue bans (around 20) for products found unsafe, but this is an even more reactive response.

Also only after harm arises, manufacturers can be indirectly incentivised to supply safe products by harmed consumers potentially bringing strict liability compensation claims. But such ACL product liability claims, requiring individuals to prove a “safety defect”, are becoming proportionately fewer. Even large class action law firms prefer focusing resources on more straightforward and large-scale claims by shareholders against listed companies for misleading conduct.

The Treasury’s draft RIS invited public comment on various reform options and three perceived problems with Australia’s consumer product safety system. One problem was misunderstanding about the current ACL regime. A second was its largely reactive nature, impacting on regulatory interventions and supplier behaviour. A third was considerable harm from unsafe consumer products. The ACCC identified 780 deaths and 52000 injuries annually. It also estimated at least a $4.5 billion annual economic cost, assuming around a $200,000 “value of a statistical life year” for premature deaths and disability. There were also costs of $0.5 billion in direct hospital costs for governments, and further costs associated with minor injuries and consequential property loss. (These seem conservative estimates, especially as the US consumer safety regulator recently US$1 trillion costs annually for that country – although the methodology and assumptions for that estimate are not set out in the UNCTAD report.)

My own Submission and a related peer-reviewed article added comparative empirical data in support of a GSP. First, the OECD Global Recalls portal shows that Australia reported higher per capita voluntary recalls over 2017-9 than Korea, the UK, Japan and the USA. Australia reported a rate similar to Canada, at least on the OECD data, but Canada’s legislation has a more expansive duty on suppliers to report product accidents to regulators compared to that added to the ACL. A large proportion of our recalls involve child products, mostly from China.

[Table 1: Comparing Australia’s Recalls (2017-9)]

Secondly, annual recalls have been growing in Australia, as pointed out by Dr Catherine Niven et al (co-researchers for our ARC-funded project comparing child product safety) and various submissions by Choice. The uptick is noticeable from around 2012, tracking burgeoning e-commerce and more importers dealing with more manufacturers abroad. We can anticipate more more consumer product safety problems due to further online sales during the pandemic, and the ACCC issued warnings in April 2020. So far this year, though, annual recalls are down, according to the around 240 by end-October (excluding automobile recalls), compared to around 400 over all of 2019. This drop is likely to be temporary and caused by: (a) pandemic-related recession causing less consumer spending, (b) less time and energy for consumers to complain about unsafe products, (c) businesses struggling with finances and staff so not checking products and conducting or reporting recalls as much, and (d) less regulatory capacity to sweep bricks-and-mortar shops for unsafe products or monitor online platforms (except perhaps the larger ones).

[Figure 1: Australia’s Recalls (1998-2019)]

Perhaps for similar reasons, the Canadian government website shows a drop in recalls reported there this year too: about 130 by end-October compared to 251 over 2019. That website also curiously records fewer recalls annually for “consumer products” (excluding vehicles, foods and healthcare products) than reported on the OECD portal, suggesting Canada’s recall rate per capita may instead be significantly lower than Australia’s. Importantly, it shows a significant drop in annual recalls from 2009 (306) and 2010 (299) to 2011 (258) and 2012 (236), followed by annual recalls averaging around 250 consistently from 2013-2019. The GSP introduced by the Canada Product Safety Act 2010 therefore seems to have had a positive impact, shifting supplier mindsets towards adopting a more pro-active approach including better safety assessments before putting goods onto the market. Singapore also reported a drop in unsafe children’s products found there the year after it introduced a form of GSP through 2011 Regulations.

In further contrast to Australia, the USA reported significantly fewer recalls following the introduction of third-party conformity assessment for toy exporters after problems emerged particularly with China-sourced products around 2008. Dr Niven et al further note that Australian recall notices do not need to include some significant information, eg regarding (even de-identified) injuries. Many Australian recalls of child products also involve breaches of the mandatory standards that have actually been set. (For more details, see her PhD thesis now available here.)

Our regulators could try to sanction local suppliers more for such breaches. But introducing a broader GSP would encourage a “paradigm shift” needed among Australian firms. As discussed in my article, this ACL reform could complemented (but not replaced) by some of the other RIS options, and/or a “product safety substantiation notice” power (mirroring ACL s219, allowing regulators to require suppliers to substantiate claims or misrepresentations that might be misleading).

Introducing a GSP would make Australian suppliers think more carefully about (and document) safety assessments before putting consumer products on the market. This is more efficient and safer than releasing products and then trying to recall them after problems start to be reported, hoping not too many (more) consumers get harmed. It would also encourage Australian firms to “trade up”, like counterparts overseas, to the standards expected in many of our trading partners.

[Luke Nottage receives funding from the Australian Research Council: DP170103136, “Evaluating consumer product regulatory responses to improve child safety”. He provides occasional pro bono advice to Choice regarding consumer law and policy reform, and acknowledges assistance from them in compiling from government recalls data what is reproduced here as Figure 1.]