Wa and the Japan International Mediation Centre – Kyoto

Written by: (Kobe University Law Faculty Prof) James Claxton & Luke Nottage
[This is an non-hyperlinked / unfootnoted version of a posting published by the Kluwer Mediation Blog]
More than 1,400 years ago, Japan codified Confucian and Buddhist approaches to governing in Prince Shotoku’s Constitution, whose first article provides that “[h]armony should be valued, and quarrels should be avoided.” The underlying principle, wa (harmony), was promoted and reflected in the fabric of Japanese society and may have contributed to a persistent preference for non-adversarial means of settling disagreements. Mediation, in particular, has a storied history in Japan and continues to play an important role in the resolution of disputes. But most mediation services have been provided by the government or courts, despite a 2004 statute encouraging certification and expansion of privately-supplied Alternative Dispute Resolution (ADR) services, as part of a broader suite of justice system reforms to make Japan’s legal system more tangible in everyday life.
It is in the context of that contemporary challenge as well as the longer-standing spirit of wa that the Japan International Mediation Centre-Kyoto (JIMC-Kyoto) will soon begin operations. The JIMC-Kyoto is part of a broader initiative to breath fresh life into international disputes services in Japan. The official start of business awaits final governmental approval, which should come early this year.

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“Japan is Back” – for International Dispute Resolution Services?

Written by: Luke Nottage & (Kobe University Law Faculty Prof) James Claxton
[This is an non-hyperlinked / unfootnoted version of a posting published by the Kluwer Arbitration Blog on 26 January 2018.]
Prime Minister Shinzo Abe himself is certainly back – having led the Liberal Democratic Party (LDP) to a fifth consecutive election in October 2017. If Abe remains in power for another three years, he will become the longest serving Japanese prime minister since World War II. Although the electorate probably responded mostly to his government’s hawkish security policy, given the recent sabre-rattling from North Korea, voters also seem to be giving the government the benefit of the doubt on his “Abenomics” economic policy. Introduced after the LDP regained power in 2012, Abenomics involves shooting “three arrows” – for monetary, fiscal and structural reform – to try to jumpstart the Japanese economy out of its lethargic performance since the “bubble economy” burst in 1991.
Against this political backdrop, and Abe’s ambitious announcement in 2013 that “Japan is back” on the world stage, some LDP policy-makers recently have proposed enhancing Japan as regional hub for international dispute resolution services. On 18 May 2017 the Nikkei Asian Review announced: “Japan to Open Center for International Business Arbitration”, which:

… could be set up as early as this year in Tokyo. Lawyer groups, corporations and other private-sector actors will take the lead in its operation. The Japan Commercial Arbitration Association [JCAA] could use the facility as its base while mediating international corporate disputes. Similar associations from other countries may use it as well.
Japan’s Foreign Ministry, Justice Ministry and Ministry of Economy, Trade and Industry [METI] will have joint jurisdiction over the new center. They will provide institutional support, such as by crafting necessary legislation and providing staff training.

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NZ renounces ISDS: Deja vu?

we have written to leaders in both New Zealand and Australia recommending a shift towards introducing an EU-style two-tier investment court model in lieu of traditional ISDS, as a compromise way forward

The new Labour-led coalition government in New Zealand announced this month that it would resist investor-state dispute settlement (ISDS) provisions in future Free Trade Agreements or investment treaties.
This outcome and local political circumstances bear some remarkable parallels with the situation in Australia over 2011-2013, when the centre-left Gillard Labor coalition government adopted a similar stance until the new centre-right government resumed the policy including ISDS on a case-by-case assessment. Australia was then able to agree to major bilateral FTAs with China and Korea, as well as to the Trans-Pacific Partnership Agreement.
The [unfootnoted] posting below with Amokura Kawharu from UAuckland, a version of which will be published in the Kluwer Arbitration Blog, elaborates on these developments. We note how New Zealand nonetheless subsequently reached agreement in principle on a revised TPP, but will face challenges maintaining a wholly anti-ISDS stance in the ongoing (ASEAN+6) Regional Comprehensive Economic Partnership negotiations. As a compromise way forward, we have written letters to leaders in New Zealand and Australia suggesting the substitution of an EU-style investment court mechanism.
For more background and our main paper referred to below, please see:
Kawharu, Amokura and Nottage, Luke R., Models for Investment Treaties in the Asian Region: An Underview (February 21, 2017). Arizona Journal of International and Comparative Law, 2017 Forthcoming; Sydney Law School Research Paper No. 16/87. Available at SSRN: https://ssrn.com/abstract=2845088

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Guest blog: Japan – The Next Arbitration Shangri-La?

Written by: Nobumichi Teramura (UNSW Law Faculty)
As reported by the Nikkei Asian Review on 18 May 2017, the Japanese government announced it planned to open a new centre for international commercial arbitration in Tokyo. The facility was reportedly to be established for the use of the Japan Commercial Arbitration Association (JCAA), the only permanent commercial arbitration institution in the country as well as other arbitration institutions from all over the world. The Ministry of Foreign Affairs, Ministry of Justice, and Ministry of Economy were working together for necessary legislative reforms and staffing issues.
Studying other institutions’ experiences is important to plan the forthcoming reform, but it is also important to reflect on the past Japanese arbitration reforms when considering the future of Japanese arbitration. A wise person learns from history. What reforms have been made in international commercial arbitration regimes in Japan until today? What can we learn from the past reforms? What implications do they have for the forthcoming arbitration reforms?
Th0se questions are addressed in the Japan chapter in a forthcoming book on “The Developing World of Arbitration: A Comparative Study of Arbitration Reform in the Asia Pacific”, co-edited for Hart by Hong Kong University Professors Anselmo Reyes (also a Judge of the Singapore International Commercial Court) and Gu Weixia. I was pleased to be invited to become the lead author of “Arbitration Reform in Japan: Reluctant Legislature and Institutional Challenges”, with my PhD thesis associate supervisor Professor Luke Nottage of Sydney Law School as co-author. My primary supervisor, Professor Leon Trakman of the University of New South Wales, contributed the chapter on arbitration reforms in Australia. Below is my outline of the forthcoming chapter on Japan.
The aim of establishing such a centre is to boost the number of international commercial arbitrations held in the country, which is now around 20 per year. New JCAA case filings have ranged from 14 to 27 annually between 2007 (15 cases filed) and 2016 (18). International Chamber of Commerce arbitration cases with the seat in Japan ranged from 2 to 5 annually between 2007 (4 filed) and 2015 (2). This number is quite small, compared with other countries or cities having those well-known arbitration institutions such as Hong Kong, Singapore, London, Paris and New York. (However, in Australia, ACICA only attracted a few new cases each year until 2009 and on average about 8 annually between 2010 and 2015, with ICC cases ranging between 1 and 8 each year from 2008 (2 cases filed with the seat in Australia) and 2016 (8 filed)). Japan’s Ministry of Justice launched a task force to investigate these popular institutions for the purpose of clarifying what reforms are necessary to attract more arbitration cases to Japan. Japanese arbitration is therefore venturing into a new era of reform.

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Guest Blog: Prof Yasuhei Taniguchi on “what characterises Japanese law and legal life”

With kind permission of one of my former teachers at Kyoto University (in international commercial arbitration) and one of Japan’s most eminent jurists, Professor Yasuhei Taniguchi, I reproduce below his succinct and insightful reflections on the historical evolution of Japanese law and society.
This is his Keynote speech delivered on 19 September 2017 at the opening of the LAWASIA conference held at the Hotel New Otani, Tokyo, attended by the Crown Prince and Princess of Japan.
Dr Yasuhei Taniguchi is Professor Emeritus of Kyoto University Law Faculty; Judge of Singapore International Commercial Court; Of Counsel, Matsuo & Kosugi, Tokyo. He was previously a member of the WTO Appellate Body and then a visiting professor at the University of Sydney Law School

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Away on Long-Service Leave for August-December 2017

After 16 years at Sydney Law School, including 168 substantive postings to this Blog since 2008 (listed below), I am taking a real break!
For queries regarding various research projects and publications-in-progress, please contact my research assistant Kirsty Gan: kgan9837@uni.sydney.edu.au
For matters related to the Australian Network for Japanese Law, please contact the ANJeL Executive Coordinator: ana.ubilava@sydney.edu.au (or: anjelinfo@gmail.com)
For updates on next February’s Kyoto / Tokyo Seminars in Japanese Law, please contact: law.offshore@sydney.edu.au
In the unlikely event they cannot deal with your inquiry, they have my private contact details.
Otherwise, you may try contacting me via LinkedIn.com or posting me material to: Sydney Law School, University of Sydney, NSW 2006, Australia. Occasionally I will be clearing my (physical) mailbox there.
I do not plan to check or respond to emails to my USydney or other work-related accounts, except when I am “back on the job” (but overseas) around 4-12 and 16-21 November, and fully from early January 2018.

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Australia – in Asia?

A persistent question, with unfortunate (geo-)political overtones, is whether Australia can be conceptualised as part of “Asia”, as opposed to more circumscribed “Australasia”, or the very broad “Asia-Pacific” (including all Pacific / Rim countries, including the Americas).
This has practical importance for my 21-chapter book forthcoming with Brill, co-edited with Julien Chaisse on “International Investment Treaties and Arbitration Across Asia“. We decided to include a chapter on Australia and New Zealand as a potential “collective middle power” that may influence the trajectory of international investment (treaty) law in the region.
The issue had earlier cropped up in the CUP book on “Independent Directors in Asia“, co-edited with Harald Baum and Dan Puchniak (and with enormous input also from Souichirou Kozuka), which is finally now in the type-set page proof stage and so should be published by November 2017. My chapter with Fady Aoun comparing Australian developments, which influenced Hong Kong in key respects with further ramification, ended up being placed after country studies in Asia (in the narrow or traditional sense) in the “Alternative Perspectives and Conclusions” part of the book. Below I reproduce [and lightly update] my memo of January 2015 arguing why it makes sense to consider Australia as part of Asia, especially for projects such as these.

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Reforming Product Safety Law: Good and Bad News from the Australian Consumer Law Review

Written by: Luke Nottage and Catherine Niven
In 2008, as consumer confidence in Australia took a big hit from the Global Financial Crisis, the Productivity Commission published a report advising the federal Treasurer to lead a belated “re-harmonisation” of consumer protection law. The State and Territory governments agreed to enact substantive provisions mirroring those legislated by the federal Government, thus creating a uniform “Australian Consumer Law” (ACL) in force nation-wide from 2011.
This reform project was mainly “sold” as saving transaction costs for businesses domestically, but also in their dealings with overseas markets that have also been “trading up” to higher standards of consumer protection law (including now ASEAN). As such, for example, all Australian jurisdictions introduced general provisions voiding unfair contract terms along the model adopted by the European Union (EU) in 1993, following the lead of Victoria in 2003. More directly impacting on consumer product safety, the ACL added a novel reporting requirement that suppliers notify the Australian Competition and Consumer Commission (ACCC) about serious product-related accidents, introduced already in 2001 by the EU – albeit in more expansive form.
In addition, the Australian governments also agreed to review the operation of the ACL after five years. In March 2017, with little fanfare, officials in “Consumer Affairs Australia and New Zealand” (CAANZ) released a Final Report including recommendations for ACL reform. They include mixed blessings for enhancing consumer safety law.

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Three Japanese Law Panels at the JSAA Conference, UWollongong, 27-29 June 2017

Thanks to Carol Lawson (ANU PhD candidate and former ANJeL Coordinator), with A/Prof Stacey Steele (UMelbourne and ANJeL Program Convenor for Judicial Visitors), for sharing below descriptions for their own upcoming conference panel (covering new developments in bankruptcy, privacy law and the legal profession) as well as panels on constitutionalism (timely also in light of the discussion over “informal amendment” of the Article 9 peace clause), and Japanese law and social change (considered also in a book review forthcoming in the Journal of Japanese Studies).
ANJeL members and others are encouraged to register before Friday 23 June for this biennial Japanese Studies of Australia conference held the ensuing week at the University of Wollongong.

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International Arbitration Law Reform: Australia … Japan, Asia-Pacific?

The Australian parliament is now reviewing a Bill including four further amendments to its International Arbitration Act, after enacting two other sets of amendments in 2015. These mostly correct for drafting errors or uncertainties that have become apparent since much more extensive amendments in 2010, which included almost all the 2006 revisions to the 1985 UNCITRAL Model Law template originally adopted by Australia in 1989. By contrast, Japan adopted the 1985 UNCITRAL Model Law template only in 2003, as part of a much broader package of justice system reforms, and has not updated its legislation at all since 2003.
Such diverging approaches across the region are examined in a forthcoming book on “The Developing World of Arbitration: A Comparative Study of Arbitration Reform in the Asia Pacific“, co-edited for Hart by Hong Kong University Professors Gu Weixia and Anselmo Reyes (also formerly a judge). I was pleased to be invited to become a secondary author for the Japan chapter, with Nobumichi Teramura, a Doshisha University graduate now completing his PhD at UNSW. His main supervisor, Prof Leon Trakman, is authoring the chapter on Australia.
Below is my outline of the recent and pending amendments in Australia, with an abridged version (with hyperlinks to further reference material) published on 13 May 2017 by the Kluwer Arbitration Blog.

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