Arbitration and Sports Law (Baseball) Dispute Resolution in Australia and Japan

As part of the Japanaroo suite of events, ANJeL is delighted to coordinate at Sydney Law School the two free public seminars below, both including a strong comparative focus on Japan and Australia, and involving a former Chief Justice of Victoria. One on Thursday 21 September compares arbitration’s historical trajectory (hybrid-format seminar, including two ANJeL program convenors based abroad – register via https://law-events.sydney.edu.au/events/intarbitrationaujp). The second on Friday 22 September compares sports law and dispute resolution (generally and with baseball as a major case study; in-person only, chaired by another ANJeL convenor Micah Burch – register via https://law-events.sydney.edu.au/events/globalsports-767).

1. Comparative History of International Arbitration: Australia, Japan and Beyond

This hybrid-format webinar compares the historical trajectory of international arbitration law and practice in Australia and Japan in regional and global contexts. An aim is to explore the evolving images and contours of arbitration and scope for cross-border collaboration in promoting this popular but sometimes contested form of dispute resolution.

Speakers

Commentator: Prof Luke Nottage (University of Sydney)(Drawing on the concluding chapter in his 2021 book: https://japaneselaw.sydney.edu.au/2020/08/book-in-press-with-elgar/ and his Encyclopedia entry on ACICA (with Prof Richard Garnett) at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4431276 )

Thursday 21 September

Time: 4-5.30pm

Location: The University of Sydney, Common Room, Level 4, New Law Building (F10), Eastern Avenue, Camperdown

Cost: Free, but registration is essential. Please select your attendance type during registration.

CPD points: 1.5 points

This event is being held an online and in-person at Sydney Law School. Please indicate your viewing preference when registering.

This event is proudly co-presented by the Centre for Asian and Pacific Law, the Resolution Institute and the Australian Network for Japanese Law at the University of Sydney Law School.

2. 2nd Annual Global Sports Law Symposium: Dispute Resolution

In-person event

This symposium brings together luminary experts and practitioners in sports law to discuss dispute resolution in the world of sports (it follows on from ANJeL’s seminar on international arbitration). The symposium’s first panel will feature two giants of the Australian sports law world reflecting on their careers in jurisprudence and sports administration resolving disputes in the sports area. The second panel will be a case study focusing on dispute resolution in baseball with two experts on both Japanese and Australian baseball.

About the Speakers

A. Dispute Resolution in Sports: Expert Reflections

Professor Deborah Healey (University of New South Wales)

Deborah Healey is the Director of the Herbert Smith Freehills China International Business and Economic Law (CIBEL) Centre and the Editor of the Sports Law Journal. She has more than 30 years of experience serving on the boards of major sports governance organizations and serves on the National Sports Tribunal.

Professor the Hon Marilyn Warren AC KC (Monash University)

Marilyn Warren is a Vice Chancellor’s Professorial Fellow of Monash University and is the former Chief Justice of Victoria. She practices as a commercial arbitrator and teaches law as a Professor at Monash’s Law Faculty.

B. Dispute Resolution in Sports: Baseball Case Study

Mr. Mark Marino (CEO, Baseball NSW)

Mark Marino has been the CEO of Baseball NSW since 2014 and is an Executive Committee Member of the Australian Baseball Players Alumni Association. Mark played collegiate and professional baseball in the United States and was the CEO of the Sydney Blue Sox 2014-2018.

Dr. Matt Nichol (Lecturer, Central Queensland University, (Melbourne))

Matt Nichol is a lecturer and sports law academic at the School of Business and Law at Central Queensland University and a board member of Baseball Victoria. His research uses approaches to labour law and regulatory theory to understand the regulation of labour in professional team sports.

Moderator: Mr. Micah Burch, Senior Lecturer, Sydney Law School.

Hosts: Sydney Law School, Australian Network for Japanese Law, Australia New Zealand Sports Law Association

Date: Friday, 22 September 2023

Time: 4.00-5.30pm

Location: Common Room, Level 4, New Law Building (F10), The University of Sydney

Please follow directional signage on arrival.

CPD Points: 1.5

This event is proudly co-presented by The University of Sydney Law School, the Australian Network for Japanese Law and the Australia New Zealand Sports Law Association.

Japan’s International Investment, Evolving Treaty Practice and Arbitration Related to Corruption and Illegality

Written by: Luke Nottage and Nobumichi Teramura#

Abstract: This article forthcoming in 55 Journal of Japanese Law (mid-2023), part of an interdisciplinary book project on Corruption, Illegality and Asian Investment Arbitration [including a conference held in Brunei on 29 May 2023 (booklet here) supported by ANJeL and CAPLUS], addresses for Japan the difficult practical and policy question facing arbitration tribunals when a foreign investor claims mistreatment by a host state but the latter alleges that the investment was tainted by corruption or other similar serious illegality. By way of background, Japan emerged from the 1980s as a leading exporter of foreign direct investment (FDI). Yet it has low inbound FDI despite some significant growth since the late 1990s (Part II). This is despite Japan having comparatively very little corruption, which is often problematic for foreign investors (Part III).

To protect and promote outbound FDI after a hesitant start, over the last two decades, Japan has accelerated ratifications of standalone bilateral investment treaties (BITs) as well as investment chapters in free trade agreements (FTAs). Almost all allow foreign investors from the home state to directly initiate investor-state dispute settlement (ISDS) arbitration against host states to get relief from violations of substantive treaty commitments, such as non-discrimination or compensation for expropriation (Part IV.1).

Japan’s investment treaty practice on corruption and illegality is comparatively interesting for two reasons (Part IV.2). First, from around 2007, its treaties have often required host states to take measures against corruption. This should help Japan’s outbound investors, but these obligations are generally weakly phrased. Secondly, Japan’s treaties have been less consistent in expressly limiting their protections to foreign investments made in accordance with host state laws (including against corruption). This may be due to treaty drafters from Japan and counterparty states being less aware of the significance of such express legality provisions, which will often lead tribunals to decline jurisdiction if corruption is established, thus leaving foreign investors without treaty protections. Such outcomes may also incentivise host states to ensure a bribe is taken, to use as a treaty defence if foreign investors ever launch treaty claims, whereas other outcomes for tribunals are possible if there is no express legality provision. Another possibility is that this drafting is deliberate, again to benefit Japanese outbound investors as claimants because the absence of a legality provision renders more difficult defences from host states, which typically have more corruption than in Japan.

Japan may adopt more and clearer legality provisions if it becomes subject to more inbound ISDS arbitration claims, and/or if claims by Japanese outbound investors are mostly against well-governed host states with little scope for corruption. Yet both types of claims remain few (Part V). The shift may therefore come more from other counterparty states pushing for such legality provisions and Japan agreeing in its future treaties to demonstrate its overall commitment to combatting corruption, and to preserve the legitimacy of the ISDS arbitration system (Part VI).


# Respectively: Professor, University of Sydney Law School; Assistant Professor, Institute of Asian Studies, Universiti Brunei Darussalam.

“Crisis as an Opportunity for Development of Japanese Law”

Following on the inaugural ANJeL-in-Europe symposium organised by Prof Giorgio Colombo for UPavia in late 2019, Dr Wered Ben-Sade and other attendees or associates are participating online in this law-related session on the first day of the Sixth Bi-Annual International Conference of the Israeli Association for Japanese Studies (15-17 November 2022).

Chair: Wered Ben-Sade Bar-Ilan University, Israel

CRISIS AS AN OPPORTUNITY FOR DEVELOPMENT OF JAPANESE LAW
Chair: Wered Ben-Sade
Crises create new opportunities for development, particularly when traditional perceptions and customs (or habits) are questioned and reexamined. Similarly as “Necessity is the mother of invention” (Plato), crises push us out of our comfort zone while simultaneously lowering the risks of change, thus motivating us to operate differently in order to solve them or improve our response. This is true both at the micro, personal level, and at the macro level of society. Understanding this mechanism at the macro level can facilitate us when we encounter a personal crisis and inspire us to search for the opportunity that is encapsulated within.
Five presentations will examine how crises serve as an opportunity for the development of Japanese law, both in the past (from the second half of the 19th century) and now. Some of the most debated challenges that Japan and the world are currently facing, such as inclusiveness of women, legal education, Covid19 impact and sustainability (in the context of corporate governance), will be discussed.

Béatrice Jaluzot Lyon Institute for Political Sciences & Lyon Institute for East Asian Studies
Crisis as an opportunity for development from a historical perspective: The choice of a positivist legal system following the signature of the Unequal Treaties
In the second half of the 19th century, Japan experienced the collapse of a thousand-year-old culture based on the Chinese model and the emergence of a society inspired by Western models. The disappearance of the old regime, caused by the imperialist movements of the time, gave way to a country that was profoundly renewed in all its fundamental structures. Among them, the country’s legal system was one of the essential novelties and one of the main achievements of the new leaders. They were thus able to set up institutions that are still largely those of today. The aim is to present how this legal system is the result of this brutal overthrow of the regime, but also to understand how the accelerated transition from which it emerged took place. This rupture gave rise to the powerful and efficient structures we know today.

Makoto Messersmith University of Hawaii at Manoa, USA
Insights on the possibility of inclusiveness of women in law studies of Japan
When we look at the status quo and history of female law professors in the U.S. and Japan, it shows that unlike the U.S., Japan has not experienced great improvement regarding inclusiveness of women into law studies, yet. Although it seems that Japan has made some efforts to encourage more women to enter the field of law, women in law studies are still facing unique challenges. For instance, in many universities, female law professors are still less than 20%. In my talk, I will explore their challenges and discuss how we can encourage more women to be included in law studies.

Luke Nottage University of Sydney, Australia and Ken’ichi Yoneda, Kagoshima University, Japan
Introducing ICT into Japanese Legal Education:
The Postgraduate Law School Movement and Covid-19 as Cornerstones
This report explains the evolution of online legal education in Japan, particularly in its universities. Three phases can be discerned: before and after the introduction from 2004 of a new postgraduate Law School system to improve and expand core legal professionals, as part of a wider justice system reform program, and a more dramatic expansion prompted by the COVID-19 pandemic since 2020. The Law School reforms had trickled down somewhat to undergraduate legal education, building on and linking to wider nationwide and university-sector initiatives in Information and Communications Technology. This fortunately positioned Japanese legal education quite well for pandemic-related challenges, although the transitions have not been easy.


Ying Hsin Tsai College of Law, National Taiwan University
The Development of Shareholder Activism following the COVID-19 Pandemic
The development of shareholder activism in Japan, thanks to the COVID-19 pandemic, creates new opportunities. The Japanese company law designs assorted ways by which shareholders can participate in shareholders’ meeting, even if they cannot attend in person (e.g. proxy, written voting and electronic voting). Due to the pandemic, the shareholders’ meeting could not be held in-person, and instead these other ways were gradually put to use. In this presentation I will discuss the practical merits and legal drawbacks surrounding these ways. The overall picture that emerges is that while providing a variety of ways for shareholders to participate in the shareholders’ meeting itself can certainly enhance the practice of shareholder activism, how to design these ways in a manner which overcomes the legal issues remains a challenge.


Kozuka Soichiro Faculty of Law, Gakushuin University, Japan
Introducing Sustainability into the Japanese Corporate Governance
Japan’s corporate governance practice is making rapid developments towards engaging with sustainability. Japan has already the largest number of companies in the world, which have announced support for the TCFD (Taskforce on Climate-related Financial Disclosures) framework. The development towards sustainability will probably continue, induced by the external global crisis of the need for sustainability, and by the internal pressure of the institutional investors. In this presentation I will evaluate the current and expected developments. The Japanese nuances in both regulation and practice of corporate governance will also be discussed.

“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

Japan: Sustainable Corporate Governance and ‘Gradual Transformation’

[ANJeL Program Convenor Prof Souichirou Kozuka and I have written a shorter chapter on Japan for the 5th edition of Principles of Contemporary Corporate Governance (by Jean Jacques du Plessis, Anil Hargovan and Jason Harris): see our longer manuscript version reproduced here for the 4th edition published by Cambridge University Press in 2018). As indicated in the introduction below, we pay particular attention to the hot topic internationally of ESG (environmental, social and governance) factors in corporate activity and investment, highlighting changes and (mostly) continuities in the corporate governance system behind Japan’s rapid uptake of ESG and sustainable or responsible investment.]

Japan developed vibrant commercial activity domestically towards the end of the Tokugawa Shogunate era (1603-1867), when it largely closed itself off to the world. As the country re-opened and expanded industrialisation over the Meiji Era (1868-1912), codifications and legal institutions were introduced following the European civil law tradition. Stock exchanges were established and investment grew into often family-owned companies, resulting in considerable emphasis on shareholder primacy before World War II.

However, after the US-led Allied Occupation (1946-51) until at least the 1980s, Japan became renowned for its stakeholder approach to corporate governance. More emphasis was placed on the interests and roles of employees (especially those in “lifelong employment”), creditors (especially “main banks”) and key suppliers or corporate customers (including in “keiretsu” corporate groups, and/or involving significant cross-shareholdings). These three practices influencing corporate governance, only loosely underpinned by relevant legislation, started to unravel after an asset bubble collapsed and Japan entered a “lost decade” of economic stagnation from the 1990s. Growing foreign investment into the Japanese stock market also supported a “gradual transformation” toward more shareholder primacy. This has involved some more protection for minority shareholders, and partial shifts towards a “monitoring” rather than executive board especially in listed companies (as elaborated in Part 11.2 of our new chapter).

The transformation since the 1990s has been reinforced by the creation of a new legislative regime (Part 11.3) and more recent “soft law” Codes for corporate governance and engagement or stewardship by institutional investors (Part II.4). Japan has experienced three major waves in the development of corporate law, at roughly half-century intervals. The Meiji-era Commercial Code enacted around the turn of the 20th century was followed by US-inspired reforms during the post-war Occupation, then much more wide-ranging reforms from around the turn of the 21st century prompted by Japan’s economic slowdown. Even in terms of formal legislative changes, the trajectory has not been one of straightforward ‘Americanisation’, and the overall position now reached is also very different from US law, as evidenced by the partial persistence of the statutory auditor governance structure inspired by German law. Also evident are some influences from – or at least parallels with – aspects of English law. These are epitomised recently in listing requirements, including a ‘comply or explain’ Corporate Governance Code since 2015, and an earlier tendency in takeover regulation to give priority to decisions of shareholders over those of directors. The impact of German law, filtered sometimes nowadays through EU law, remains important too. Japan’s complex corporate law landscape is also influenced by  the three distinctive features of post-War corporate governance practice mentioned above, even though they too have been undergoing gradual transformations.

Much discussion has emerged recently also around ESG issues for investors and managers in Japan, as in many other jurisdictions with large securities markets (Part II.5). A key question is whether this means even-greater shareholder primacy, as foreign institutional investors in particular pushed for further ESG initiatives from Japanese firms, or whether it marks their return towards more stakeholder-based corporate governance. The answer is important for predicting likely future directions (Part II.6).

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, concluding, Japan and Thailand chapters for this book agreed with Springer in their Asia in Transition series. Some or all were presented at a public conference held in Brunei on 29 May 2023 (booklet here) supported by ANJeL and CAPLUS, and at events in UFrankfurt and Heidelberg MPI in early July 2023. Earlier versions were presented 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, NUS ISEAS on 22 September, and at Monash Law (Melbourne CBD) on 9 November 1-2pm.]

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).

The original proposal overview is further below; the final set of authors/chapters submitted to Springer in mid-2023 is as follows:

Foreword — Amokura Kawharu (President, New Zealand Law Commission)[1]

Introduction

  1. Bribery and Other Serious Investor Misconduct in Asian International Arbitration — Nobumichi Teramura (Asst Professor, Institute of Asian Studies (IAS) at Universiti Brunei Darussalam (UBD)),[2] Luke Nottage (Professor, Sydney Law School)[3] and Bruno Jetin (Associate Professor and Director, IAS at UBD)[4]

Part 1: The Economic Context of Corruption and Investment

  • Does Corruption Hinder FDI and Growth in Asia and Beyond? The Grabbing Versus Helping Hand Revisited — Ahmed Masood Khalid (Professor and Former Dean, School of Business and Economics at UBD)[5]
  • The Effect of Corruption on Foreign Direct Investment at the Regional Level: Positive or Negative Relationship? — Bruno Jetin, Jamel Saadaoui (Senior Lecturer, University of Strasbourg)[6] and Haingo Ratiarison (University of Strasbourg)[7]

Part 2: General Legal Issues from the Interface of Corruption, Illegality and Investment Arbitration

  • Anti-Corruption Laws and Investment Treaty Arbitration: An Asian Perspective — Anselmo Reyes (International Judge, Singapore International Commercial Court)[8] and Till Haechler (Bar Exam Candidate, Supreme Court Canton of Zurich)[9]
  • Multi-Tiered International Anti-Corruption Cooperation in Asia: Treaties Review and Prospects — Dr Yueming Yan (Asst Professor, Faculty of Law at the Chinese University of Hong Kong)[10] and Tianyu Liu (LLM Candidate, Leiden University)[11]
  • Corruption in International Investment Arbitration — Michael Hwang (Senior Counsel and Director, Michael Hwang Chambers LLC)[12] and Aloysius Chang (Senior Associate, Watson Farley & Williams)[13]
  • Rebalancing Asymmetries between Host States and Investors in Asian ISDS: An Exception for Systemic Corruption — Martin Jarrett (Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law)[14]

Part 3: Country Reports

  • Foreign Investment, Investment Treaties and Corruption in China and Hong Kong — Vivienne Bath (Professor, Sydney Law School)[15] and Tianqi Gu (PhD candidate, Sydney Law School)[16]
  • Corruption and Investment Treaty Arbitration in India — Prabhash Ranjan (Professor and Vice Dean, Jindal Global Law School)[17]
  • Corruption and Illegality in Asian Investment Disputes: Indonesia — Simon Butt (Professor, Sydney Law School),[18] Antony Crockett (Partner, Herbert Smith Freehills)[19] and Tim Lindsey (Professor, Melbourne Law School)[20]
  • Foreign Investment, Treaties, Arbitration and Corruption: Comparing Japan — Luke Nottage and Nobumichi Teramura
  • Corruption and Investment Arbitration in the Lao People’s Democratic Republic: Corruptio Incognito — Romesh Weeramantry (Counsel, Clifford Chance)[21] and Uma Sharma (Litigation Associate at TSMP Law Corporation)[22]
  • Corruption and Illegality in Asian Investment Arbitration: The Philippines — Thomas Elliot A Mondez (Court Attorney, Court of Appeals in the Philippines)[23] and Jocelyn Cruz (Chair, Commercial Law Department at De La Salle University)[24]
  • Investment Arbitration, Corruption and Illegality: South Korea — Joongi Kim (Professor, Yonsei Law School)[25]
  • Foreign Investment, Corruption, Investment Treaties and Arbitration in Thailand — Sirilaksana Khoman (Professor of Economics, Thammasat University; Member, National Anti-Corruption Commission)[26] Luke Nottage, Sakda Thanitcul (Professor, Chulalongkorn Law School),[27]

Conclusions

  1. Towards a More Harmonised Asian Approach to Corruption and Illegality in Investment Arbitration— Nobumichi Teramura, Luke Nottage and Bruno Jetin

[1] https://www.lawcom.govt.nz/commissioner-profile/amokura-kawharu

[2] https://ias.ubd.edu.bn/nobumichi-teramura/

[3] https://www.sydney.edu.au/law/about/our-people/academic-staff/luke-nottage.html

[4] https://ias.ubd.edu.bn/bruno-jetin/

[5] https://ubd.edu.bn/menu/staff-directory/2017/04/20/dr.-ahmed-masood-khalid/

[6] https://www.jamelsaadaoui.com/

[7] https://www.linkedin.com/in/haingo-ratiarison-20a2b21bb/?originalSubdomain=fr

[8] https://www.sicc.gov.sg/about-the-sicc/judges

[9] https://www.linkedin.com/in/till-haechler-b09b051b6/?locale=es_ES

[10] https://www.law.cuhk.edu.hk/app/people/prof-yueming-yan/

[11] https://www.linkedin.com/in/tianyuliu521/?originalSubdomain=cn

[12] https://www.mhwang.com/

[13] https://www.wfw.com/people/aloysius-chang/

[14] https://www.mpil.de/en/pub/institute/personnel/academic-staff/mjarrett.cfm

[15] https://www.sydney.edu.au/law/about/our-people/academic-staff/vivienne-bath.html

[16] https://www.linkedin.com/in/tianqi-gu-115921228/?originalSubdomain=au

[17] https://jgu.edu.in/jgls/prof-dr-prabhash-ranjan/

[18] https://www.sydney.edu.au/law/about/our-people/academic-staff/simon-butt.html

[19] https://www.herbertsmithfreehills.com/our-people/antony-crockett

[20] https://law.unimelb.edu.au/about/staff/tim-lindsey

[21] https://www.cliffordchance.com/people_and_places/people/lawyers/sg/romesh_weeramantry.html

[22] https://www.linkedin.com/in/umajsharma/?originalSubdomain=sg

[23] https://www.linkedin.com/in/elliot-mondez-518271128/?originalSubdomain=ph

[24] https://www.linkedin.com/in/jocelyn-cruz-4b119719a/?trk=public_profile_browsemap_profile-result-card_result-card_full-click&originalSubdomain=ph

[25] https://uic.yonsei.ac.kr/main/academic.asp?mid=m03_01_02&act=view&uid=849&keyword=

[26] https://www.americanconference.com/speakers/dr-sirilaksana-khoman/

[27] https://www.law.chula.ac.th/en/profile/5496/

* * *

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)

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.

ANJeL/JSAA “Japanese Law in Context” Podcasts Project – Going Live

The Australian Network for Japanese Law (ANJeL) in collaboration with the Japan Studies Association of Australia (JSAA) and thanks to Mini-Grant funding from the Japan Foundation Sydney awarded in November 2020, has completed 20 podcasts introducing Japanese Law in comparative and socio-economic contexts. The interviews include segments on the current or likely impact of the COVID-19 pandemic across the diverse sub-fields of Japanese law and society. The podcast “playlist” is here on Youtube and a report is here on the design and some key points from the podcasts, written by Melanie Trezise (PhD candidate and research assistant at the University of Sydney Law School, and past ANJeL Executive Coordinator).

The expert interviewees have taught in the Kyoto and Tokyo Seminars in Japanese Law, co-organised by ANJeL and Ritsumeikan University‘s postgraduate Law School since 2005 for Japanese, Australian and other international students, and/or the interviewees have been ANJeL visitors or advisors. Interviewers are ANJeL co-directors Prof Luke Nottage (University of Sydney Law School) and A/Prof Leon Wolff (QUT), along with Micah Burch (Senior Lecturer at Sydney Law School) and Melanie Trezise (who was also primarily responsible for the editing). Others who helped make this possible include Dr Nobumichi Teramura (now Assistant Professor at the University of Brunei) and the terrific tech team from Sydney Law School (Lana Kolta, Andy Netherington and Ross West).

ANJeL and JSAA are very grateful to all who supported this project. We hope that these resources available via their websites (or directly via Youtube) will be useful for the wider public when engaging with the fascinating and ever-changing world of Japanese law. The sub-topics and interviewees are listed below, with video-recordings edited to around 15-20 minutes each. There are also several mostly longer Bonus Features as well as a shorter introduction (by Luke Nottage), such as reflections about the innovative Kyoto and Tokyo Seminar program from some of its key architects (including past ANJeL Co-Director Kent Anderson and Ritsumeikan University Professor Naoya Yamaguchi). Other Seminar program organisers over the years include Professors Makoto Ibusuki (Program Convenor: ASEAN-in-Japan), Tsuneyoshi Tanaka and Chihara Watanabe.

  • Introduction to the Podcast Series – Luke Nottage (USydney)
  • Pop Culture – Leon Wolff (QUT)
  • Comparative and Theoretical Perspectives- Tetsuro Hirano & Chihara Watanabe (Ritsumeikan) with Luke Nottage
  • Mediation – James Claxton (Rikkyo / Waseda U) & Kyoko Ishida (Waseda U)
  • Arbitration – Giorgio Colombo (Nagoya U), Tatsuya Nakamura (Kokushikan U) & Nobumichi Teramura (UBrunei)
  • Civil Procedure – Yoko Tamura (Tsukuba U)
  • Lawyers – Jiri Mesteky (Kitahama Partners) & Yoshihiro Obayashi (Yodoyabashi & Yamagami)
  • Criminal Justice – Kent Anderson (ANU / Advisor to Australia’s Education Minister) & Makoto Ibusuki (Seijo U)
  • Government – Narufumi Kadomatsu (Kobe U)
  • Gender – Kyoko Ishida (Waseda U)
  • Labour – Takashi Araki (U Tokyo)
  • Contracts – Veronica Taylor (ANU/ ANJeL Advisor) & Tomohiro Yoshimasa (Kyoto U)
  • Consumers – Marc Dernauer (Chuo U)
  • Corporate Governance – Souichirou Kozuka (Gakushuin U)
  • Finance – Akihiro Wani (Morrison & Forster)
  • Tax – Justin Dabner (formerly JCU) with Micah Burch (USydney)
  • Bonus: Sports – Matt Nichol (CQU) with Micah Burch
  • Bonus: Gender, Past & Present – Masako Kamiya (Gakushuin U)
  • Bonus: Pandemic & Japanese Law – Compilation
  • Bonus: Kyoto and Tokyo Seminars – Kent Anderson, Leon Wolff & Naoya Yamaguchi (Ritsumeikan) with Luke Nottage