Publications listing – ARC Grant & Foreign Direct Investment

The (federal government’s) Australian Research Council has provided $260,000 to support a project led by Prof Luke Nottage, Prof Leon Trakman (lead-CI, former Dean of Law at UNSW), A/Prof Jurgen Kurtz (Melbourne Law School) and Dr Shiro Armstrong (ANU Crawford School of Public Policy, co-editor of the East Asia Forum blog).
The abstract for this project is as follows:
“This project will evaluate the economic and legal risks associated with the Australian Government’s current policy on investor-state dispute settlement through multidisciplinary research, namely econometric modeling, empirical research through stakeholder surveys and interviews, as well as critical analysis of case law, treaties and regulatory approaches. The aim of this project is to identify optimal methods of investor-state dispute prevention, avoidance and resolution that efficiently cater to inbound and outbound investors as well as Australia as a whole. The goal is to promote a positive climate for investment inflows and outflows, while maintaining Australia’s ability to take sovereign decisions on matters of public policy.”
The following is a list of publications related to the project (published as at 1 April 2015, or forthcoming).

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Investor-state Arbitration Down Under: KAFTA review and the anti-ISDS Bill

On 4 September 2014 Australia’s Joint Standing Committee on Treaties recommended parliamentary ratification of the FTA with Korea (KAFTA) signed earlier this year. But there were dissenting reports from (major Opposition) Labor Party members as well as (very minority) Greens Party Senator Whish-Wilson, based partly on objections to ISDS.
If Labor and Greens Senators follow their (Party) line on ISDS, the ruling Coalition lacks a majority (only) in the upper house and so will struggle to get KAFTA implementation legislation enacted, hence the government is unlikely to be able to ratify KAFTA. It depends on whether the Coalition government can bring onside maverick mining billionaire Senator Clive Palmer (suddenly xenophobic, yet again and in the context also of his personal business dealings, about China and its traders/investors!) and his Party members and independents in the Senate.
The Australian Government may then have to go back to Korea to see if it will alter its stance and agree to exclude ISDS after all (as in the subsequently signed Australia – Japan FTA). Interestingly, there had been considerable political discussion in Korea about ISDS (among other issues) in the context of ratifying its FTA with the US, although KORUS was ratified by the Korean legislature on 22 November 2011 and came into effect from 2012. The possibility of Australia and then Korea now removing or redrafting ISDS provisions in their bilateral FTA has significant implications for Australia’s other pending bilateral and regional treaty negos, including RCEP (ASEAN+6, including of course Korea and Japan) and TPP (apparently with the possibility of Korea joining those negotiations).
Curiously, Senator Whish-Wilson’s dissenting Report yesterday mentions that the Greens Party (namely himself) introduced a Bill to prevent the government entering into any future treaties containing any form of ISDS, but he doesn’t add that on 27 August a (different) Committee recommended against the Senate enacting that “anti-ISDS Bill“. (Nor can I see the mentioned in the other Reports on KAFTA ratification.)
The Senate inquiry into the anti-ISDS Bill heard further evidence, including from myself, with both Coalition and Labor Senators agreeing that the Bill should not be passed – albeit with “Additional Comments” from Labor members emphasising that enactment would drastically curtail the constitutional responsibility of the executive branch to negotiate treaties. (Senator Whish-Wilson unsurprisingly dissented, and recommended enactment of his own private member’s Bill.) Against this backdrop, it is quite unlikely that the Senate will ever vote on this particular Bill (many such members’ Bill never go forward) and anyway it would fail resoundingly, assuming other Labor Senators follow their committee colleagues (the usual practice).

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Sydney Law School students in Asia: (4) China

Following on from the report by Angelica McCall on her learning experiences in China, another final-year LLB student, Diana Hu, outlines her participation in an international forum for law students held from 19 August by Renmin University in Beijing – one of Sydney Law School’s important partners in China.
“Legal Integration within the Asia-Pacific: The First China International Legal Elite Camp”
Written by Diana Hu.
“China is now such a powerful country – in terms of size, people, and the economy. What does China have to gain by forming a union with Japan or South Korea?”. This astute question was asked by a PhD student from South Korea and directed at Associate Professor Dong Yang, Vice President of Asia Pacific Legal Studies at the Renmin University of China (RUC). And so begun an intensive week of multilingual lectures, team-based discussions and thought-provoking presentations, all centred around one theme: legal integration within the Asia-Pacific region.
Nineteen law students from 17 universities across the Asia-Pacific met during Beijing’s hot summer, eager to attend the “Future Leader – First China International Elite Camp” hosted by the RUC Law School. Armed with prior research and materials, we all expected to learn about the Chinese legal system while examining the interaction between our diverse laws across the Asia-Pacific region. What I did not expect was one of the most enjoyable weeks of my 6-year (extended) double degree, full of new cultural and social experiences.

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Guest Blog – Constitutional Amendment in Japan: Potential Lessons from Australia

Written by Joel Rheuben (LLM candidate UTokyo, LLB/BA (Hons) Syd, Solicitor (NSW))
In spite of Japan’s perpetual combination of economic, diplomatic and demographic challenges – not to mention the fact that the current House of Representatives faces potential invalidation by the Supreme Court – Prime Minister Shinzo Abe continues to focus an inordinate amount of political energy on his pet project of constitutional “revision”. Together with the hard-right alliance Nippon Ishin no Kai, Abe’s Liberal Democratic Party (LDP) has determined to attack first and foremost Article 96 of the Constitution, which sets out the mechanism by which the document can be amended.
Currently, that provision requires a two-thirds majority vote of each house of the Diet to initiate a popular referendum in order to effect constitutional change. Abe and others argue that the two-thirds majority requirement makes it too hard to put constitutional amendments to a vote. The LDP/Nippon Ishin plan would lower the threshold for a referendum to a simple majority in each house. Yet Australia has a similar threshold – without having resulted in many constitutional amendments, in practice.

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Guest blog – Vale Beate Gordon (with a reflection on marriage equality in Japan)

Written by Joel Rheuben (University of Tokyo)
As reported in the New York Times earlier this month (and by the Sydney Morning Herald some two weeks later), Beate Sirota Gordon sadly passed away in the final days of 2012, aged 89. While the Times’ obituary provides an adequate summary of her life’s achievements, scholars of Japanese law will likely best know of Ms Gordon as the only female civilian member in the Government Section of the postwar Occupation forces, recounted in her 1998 autobiography, “The Only Woman in the Room” (now astonishingly overpriced on Amazon: see her verbal summary on YouTube instead).

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“Consumer Law and Policy in Australia and New Zealand” – and Beyond

As emphasised in this Blog for many years, Japan has accelerated its consumer law reforms over the last two decades. Australia has also introduced major amendments since 2009, in turn prompting pending initiatives in New Zealand.
Professor Justin Malbon and I recent completed co-editing the first research monograph examining recent Trans-Tasman developments, including significant comparisons with Japan (and beyond) particularly in chapter 3 (generally) and in chapter 8 (consumer product safety regulation). Our 15-chapter book will be published by Federation Press in Sydney in late January 2013.

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Guest Blog: “Bureaucratic Capture” in Japan’s Nuclear Disaster Compensation Scheme?

Written by: Joel Rheuben (University of Tokyo, LLM Program)
More than a year on from the near-meltdown of several reactors at the Fukushima Dai-ichi Nuclear Power Plant, Tokyo Electric Power Company (“TEPCO”), the plant’s owner and operator, is continuing the slow process of compensating evacuees and others from the area surrounding the plant for damage to property and loss of income and livelihood as a result of the disaster. According to TEPCO’s website, as at 1 June 2012, the company had processed some 668,000 of a total of 764,000 (and counting) claims, provisionally worth JPY 856.6 billion (USD 11.7 billion).

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ANJeL Anniversary Conference (1-2 March 2012): Abstracts (5)

Please see below for the latest set of presentation abstracts for ANJeL’s upcoming conference on “Socio-legal Norms in Preventing and Managing Disasters in Japan: Asia-Pacific and Interdisciplinary Perspectives”, to be presented on 1-2 March 2012. The full collection of abstracts are now available on this blog, with previous abstracts to be found at the following posts:
Abstracts 1
Abstracts 2
Abstracts 3
Abstracts 4
This conference will compare the preparedness for large-scale disasters and subsequent responses in Japan, focusing on the earthquake and tsunami that devastated north-east Japan on 11 March 2011 and the Fukushima Daiichi nuclear power plant radiation leaks.
For more information and registrations please visit http://sydney.edu.au/news/law/457.html?eventcategoryid=39&eventid=9063.

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ANJeL Anniversary Conference (1-2 March 2012): Abstracts (4)

The latest presentation abstracts are now available below. Previously published blog entries containing abstracts prepared by other speakers for ANJeL’s Anniversary Conference on Socio-legal Norms in Preventing and Managing Disasters in Japan: Asia-Pacific and Interdisciplinary Perspectives”, to be presented on 1-2 March 2012, can be found here (1), here (2) and here (3).
This conference will compare the preparedness for large-scale disasters and subsequent responses in Japan, focusing on the earthquake and tsunami that devastated north-east Japan on 11 March 2011 and the Fukushima Daiichi nuclear power plant radiation leaks.
For more information and registrations please visit http://sydney.edu.au/news/law/457.html?eventcategoryid=39&eventid=9063.

Continue reading “ANJeL Anniversary Conference (1-2 March 2012): Abstracts (4)”

ANJeL Anniversary Conference (1-2 March 2012): Abstracts (3)

A new set of presentation abstracts is now available below. Abstracts prepared by other speakers for ANJeL’s Anniversary Conference on Socio-legal Norms in Preventing and Managing Disasters in Japan: Asia-Pacific and Interdisciplinary Perspectives”, to be presented on 1-2 March 2012, can be found here and here.
The purpose of this conference is to compare the preparedness for large-scale disasters and subsequent responses in Japan, focusing on the earthquake and tsunami that devastated north-east Japan on 11 March 2011 and the Fukushima Daiichi nuclear power plant radiation leaks.
For more information and registrations please visit this page.

Continue reading “ANJeL Anniversary Conference (1-2 March 2012): Abstracts (3)”