Category: Public policy and politics

Who Rules Japan? Popular Participation in the Japanese Legal Process

Below is the manuscript version of our Preface to Leon Wolff, Luke Nottage and Kent Anderson (eds) Who Rules Japan? Popular Participation in the Japanese Legal Process (forthcoming in April 2015 from Edward Elgar), comprising:
1. Introduction: Who Rules Japan?
Leon Wolff, Luke Nottage and Kent Anderson
2. Judging Japan’s New Criminal Trials: Early Returns from 2009
David T. Johnson and Satoru Shinomiya
3. Popular Participation in Labour Law: The New Labour Dispute Resolution Tribunal
Takashi Araki and Leon Wolff
4. In Defence of Japan: Government Lawyers and Judicial System Reforms
Stephen Green & Luke Nottage
5. Administering Welfare in an Ageing Society
Trevor Ryan
6. Reforming Japanese Corrections: Catalysts and Conundrums
Carol Lawson
7. Competition Law in Japan: The Rise of Private Enforcement by Litigious Reformers
Souichirou Kozuka
8. When Japanese Law Goes Pop
Leon Wolff

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The “Anti-ISDS Bill” before the Australian Parliament

This posting is based mainly on a Note that critically reviews The Trade and Foreign Investment (Protecting the Public Interest) Bill 2014, drawing on my written Submission and subsequent Senate Hearings. The fully footnoted version will appear in the next issue of the CIArb’s “Australian ADR Reporter” or successor Journal. Readers may also be interested in my subsequent posting to the Kluwer Arbitration Blog, followed by the Senate Committee Report (27 August 2014) which agreed that the anti-ISDS Bill should not be enacted. Significant extracts from that Report will also be added and analysed in my draft paper at http://ssrn.com/abstract=2483610, with an introduction incorporating a version of the Note below.
This work is part of an Australian Research Council Discovery Project (DP140102526) funded over 2014-2016 jointly with Dr Shiro Armstrong and Professors Jurgen Kurtz and Leon Trakman, which was acknowledged in the Senate Bill hearings and final Report. The topic of ISDS will also be discussed at the Law Council of Australia’s 2014 International Trade Law Symposium, 18-19 September, Canberra, and will be the focus of an ABC National Radio broadcast on 14 and 16 September (with transcripts here).

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Why no investor-state arbitration in the Australia-Japan FTA?

Australia and Japan finally concluded a bilateral Free Trade Agreement on 7 April 2014. Some Australian media outlets had prior inklings that negotiations had achieved significant breakthroughs, especially for agricultural market access into Japan, but a frequent assumption was that Australia must have “given up” something major in return. Concerns were expressed that this included measures favouring Japanese investors into Australia, especially protections from investor-state dispute settlement (ISDS, especially arbitration) provisions [listen to my radio interview here]. These provide an extra avenue for foreign investors to enforce the substantive treaty rights limiting a host state’s capacity to illegally interfere with foreign investments (eg through expropriation). They add to the (more politicised) inter-state arbitration procedure invariably included in investment treaties, as well as any rights under domestic law available through the host state’s court system – particularly problematic in developing countries, such as Indonesia.
ISDS provisions had been added to the Korea-Australia FTA concluded in December 2013 by the Abbott Government, which also declared that it was reverting to a case-by-case approach to ISDS. This contrasted with the position taken by the 2011 Gillard Government Trade Policy Statement, which had reversed Australia’s longstanding treaty practice by declaring that it would not agree to any forms of ISDS in future treaties – even with developing countries. The 2012 Malaysia-Australia FTA omitted ISDS, although that was meaningless in practice as ISDS remains available to enforce similar substantive rights under the 2009 ASEAN-Australia-NZ FTA. Curiously, however, the new Australia-Japan FTA ultimately omitted ISDS provisions as well. Why is this, and what are the broader implications?

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Bill proposing to preclude Australia from ISDS in future investment treaties

I am pleased to provide this Submission on The Trade and Foreign Investment (Protecting the Public Interest) Bill 2014. I specialise in international and comparative commercial and consumer law, and have produced extensive academic publications and media commentary on treaty-based investor-state dispute settlement (ISDS). My interest is in the policy and legal issues associated with this system; I have never provided consultancy or other services in ISDS proceedings.
The Bill simply provides, in clause 3, that:

“The Commonwealth must not, on or after the commencement of this Act, enter into an agreement (however described) with one or more foreign countries that includes an investor-state dispute settlement provision.”

The Explanatory Memorandum provides no guidance as to the background to this proposal, or its pros and cons. However it seems to be aimed at reinstating the policy shift announced by the April 2011 “Gillard Government Trade Policy Statement”. That is no longer found on Australian government websites and is inconsistent with the present Government’s policy on ISDS, which allows for such provisions on a case-by-case basis (as evidenced by the recent Korea-Australia FTA).
The Bill, like the previous Trade Policy Statement in this respect, may be well-intentioned, but it is premature and misguided. Treaty-based ISDS is not a perfect system, but it can be improved in other ways – mainly by carefully negotiating and drafting bilateral investment treaties (BITs) and free trade agreements (FTAs). This may also have the long-term benefit of generating a well-balanced new investment treaty at the multilateral level, which is presently missing and unlikely otherwise to eventuate.

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12th ANJeL Japanese Law conference: Cairns, 16 May

The Australian Network for Japanese Law (ANJeL) will host the Cairns Symposium on Japanese Law on Friday 16 May, with special thanks to ANJeL member and James Cook University Associate Professor Justin Dabner. Registration should be completed by emailing your name and institution to [email protected]; registration costs $60 for non-speakers (to cover lunch and teas) and can be paid on the day of the conference (please inform in advance if a receipt is required).
[Updated 26 April] The Symposium’s theme is ‘Japanese Law and Business Amidst Bilateral and Regional Free Trade Agreements’ – by happy coincidence, in light of the conclusion of negotiations for the Japan Australia Economic Partnership Agreement on 7 April 2014 (see media commentary here). However, presentation proposals dealing with other Japanese Law topics were also welcomed, as in previous ANJeL conferences held since 2002. As indicated by Abstracts below, speakers will cover fields including agricultural land law and policy, corporate law reforms, insolvency law and practice, long-term contracting, cross-border investment dispute resolution, tax treaties, emissions trading schemes and political participation rights.

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Investor-State Dispute Settlement Back for Australia’s Free Trade Agreements

Australia’s Coalition Government, dominated by the Liberal Party and led by Prime Minister Tony Abbott, recently completed a rocky first 100 days in power. Diplomatic rows with China and Indonesia are only part of the story. The Government stands accused, for example, of sending ‘conflicting messages’ to the business sector. At the Business Council of Australia’s 30th anniversary dinner on 4 December, Abbott reiterated his election-night declaration that Australia was ‘once more open for business’. Yet five days earlier, his Treasurer had taken the rare step of blocking a major foreign direct investment (FDI) – a $3.4 billion bid by US firm ADM for GrainCorp.

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The Potential Impact of Japan’s New State Secrecy Bill on Freedom of Information

Written by Joel Rheuben (with a more extensively hyperlinked version at freedominfo.org)
As recently reported on the ABC, on 25 October the Japanese government moved to introduce to the Japanese legislature the “State Secrecy Bill” (formally, the Bill on the Protection of Designated Secrets). The government apparently hopes to make the bill law by the end of the year, in time for the establishment of a new National Security Council, which has been used as the justification for the bill.
Perhaps because of this rush, the bill is – to paraphrase Oscar Wilde – not only bad, but badly written, which is worse.

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Guest Blog – Assessing the significance of PM Abe’s electoral “victory”

Written by Joel Rheuben (LLM candidate UTokyo, LLB/BA (Hons) Syd, Solicitor (NSW))
The 21 July 2013 election for the House of Councillors, the upper house of Japan’s Diet, has reversed the status quo of the past several years by providing the governing parties with a majority in both houses. As Tobias Harris rightly points out, possibly pre-prepared descriptions of the victory as a “landslide” fall wide of the mark. Prime Minister Shinzo Abe’s Liberal Democratic Party (LDP) did not achieve a majority in its own right, and will continue to be dependent on the support of its coalition partner, Komeito. The majority also falls well short of the two-thirds that would have allowed Mr Abe to more easily realise his cherished goal of initiating a referendum for constitutional amendment. Nevertheless, this election result does have some constitutional and practical significance.

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Disaster Management: Socio-Legal and Asia-Pacific Perspectives

Catastrophic events are increasingly in the public eye, fuelling a burgeoning but complex field of interdisciplinary research and policy-making worldwide. Recent devastating natural disasters have included the Indian Ocean Tsunami in 2004, Hurricane Katrina in the United States (US) in 2005, Cyclone Nargis in Burma (Myanmar) and the Sichuan Earthquake in 2008. Developed economies have not been spared, as shown by the Christchurch earthquake in New Zealand and Australia’s widespread floods in Queensland in 2011. In particular, the disasters that wreaked havoc from 11 March 2011 in the north-east region of Japan have highlighted the significance and challenges of disaster prevention and management.
Based on the international conference held at Sydney Law School in March 2012, which has also generated a recent mini-issue (No 34) of the Journal of Japanese Law, A/Prof Simon Butt, Dr Hitoshi Nasu and I have co-edited “Asia-Pacific Disaster Management: Comparative and Socio-Legal Perspectives” (Springer, forthcoming November 2013). A manuscript version of our extensive introductory chapter, freely downloadable here, outlines:
(i) what can be encompassed by the terms “disasters” and “disaster management”;
(ii) contributions to “disaster studies” from various social sciences as well as domestic and international law perspectives; and
(iii) lessons that can be learned from socio-legal perspectives on recent catastrophes in Asia-Pacific countries, including possibilities for regional and international cooperation in disaster mitigation, relief and recovery.

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Process and Substance in Contract Law Reform in Japan – and Australia?

Japan’s is well underway on the path to completing its first comprehensive reform of contract law since enactment of the Civil Code in 1896. A driving force has been Takashi Uchida, a prominent participant in Japan’s intense discussions over contract law theory in the early 1990s. He resigned in 2007 as Professor of Civil Law at the University of Tokyo in order to spearhead deliberations within the Legislative Council (hosei shingikai) of the Ministry of Justice (MoJ), now charged with recommending specific reforms.
At the Council’s first Working Group meeting on 22 November 2009, one member reportedly suggested that deliberations should proceed “without paying too much attention to ‘the Basic Policy for the Law of Obligation Reform’ (draft proposals by [the] Japanese Civil Code (Law of Obligations) Reform Commission)” because it had been confirmed that the Working Group’s deliberations should start “from zero”. However, the Draft Proposals (DP) published in April 2009 by that semi-private Reform Commission, along with a detailed five-volume commentary written by its members, were clearly intended to frame the subsequent debate in the formal Working Group arena – and have mostly achieved that effect.

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