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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Book Review – Dean Lewis, ‘The Interpretation and Uniformity of the UNCITRAL Model Law on International Commercial Arbitration’

Japan adopted the 1985 version of the Model Law of the United Nations Commission on International Trade Law as the basis for its revamped Arbitration Act of 2003, as outlined in my commentary co-authored with JCAA Arbitration Dept GM and erstwhile ANJeL Visitor Prof Tatsuya Nakamura. As such, it is instructive to compare how successful the Model Law has been in promoting uniformity in other Asia-Pacific jurisdictions, including Australia, Hong Kong and Singapore, as analysed in the book reviewed below. Other researchers may be inspired to adopt or adopt its approach to test uniformity in other Model Law jurisdictions such as Japan.

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Further Fallout from the Fukushima Disasters: Long-term Contract Renegotiation in Japan

A symposium last year discussed “Fukushima Five Years On – Legal Fallout in Japan”, focusing on diverse lessons for the EU, as reported by Ruth Effinowicz in issue 42 of the Journal of Japanese Law. In the same issue, Zina Teoh also analyses “Food Safety in the Aftermath of Fukushima: Who can Consumers Trust?”.
A more recent question arises from an announcement from Tokyo Electric Power Company (TEPCO, operator of the nuclear power plant that suffered the devastating meltdown in after the 2011 tsunami) that it was seeking to terminate its contract with a Canadian long-term supplier of uranium. TEPCO argues that this is justified by the tighter regulatory regime subsequently introduced by the Japanese government, still limiting reactivation of most nuclear plants in Japan. Below is further background, and my quoted response to Bloomberg. I had also mentioned that their chances of legally terminating will depend on:
(i) pricing, termination, force majeure and hardship clauses likely included in the specific contract;
(ii) as interpreted based on the applicable background contract law (hence depending on any express governing law clause), which may in turn also allow recourse to broader background principles such as the doctrines of non-imputable impossibility or “changed circumstances” under Japanese contract law (compared to stricter doctrines of frustration under Anglo-Commonwealth law, as explained in my 2008 article);
(iii) in light also of the dispute resolution forum (with arbitration also likely to be expressly agreed, limiting scope for court review of the arbitrators’ award if a pro-arbitration seat has been chosen).
By way of further background, take a look also at the broader article (prompted by potential disputes over long-term LNG supply contracts due primarily to more fracking in the US ) written by CAPLUS associate Paul Davis, published in issue 38 (2014) of the Journal of Japanese Law.

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“International Investment Treaties and Arbitration Across Asia” – Julien Chaisse & Luke Nottage (eds)

[Updated: 25 July 2017]
The future of investment treaties, especially as part of “mega-regional” free trade agreements like the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP), has become very uncertain given the isolationist volte-face of the Trump Administration. This project explores the historical and likely future trajectory of investment treaties, including the sometimes politically controversial Investor-State Dispute Settlement (ISDS) procedure, especially in the rapidly growing and diverse Asia-Pacific region. The book focuses on the extent to which Asia-Pacific economies (individually and/or through sub-regional groupings like ASEAN, the Association of Southeast Asian Nations) have been or are more likely to become “rule makers” rather than “rule takers” in international investment law, and in what sense.
The following book proposal, accepted in July 2017 by Brill for publication in its Nijhoff International Investment Law Series, is based mainly on papers presented at conferences comparing contract- and treaty-based arbitration of investment disputes in ASEAN member states (held in Bangkok in July 2016) and across the wider Asian region (held at USydney in February 2017, with a summary by Ana Ubilava available via Kluwer Arbitration Blog) and reproduced (without hyperlinks) on this Blog.

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International Investment Arbitration Across Asia: A Symposium

By: Ana Ubilava (PhD in Law student, University of Sydney)
[This is a non-hyperlinked version of the posting at http://kluwerarbitrationblog.com/2017/03/01/international-investment-arbitration-across-asia-symposium/]
On 16 February 2017, the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS) and the Sydney Centre for International Law (SCIL) co-hosted a symposium on the theme: “International Investment Arbitration Across Asia”. The symposium, sponsored also by the Sydney Southeast Asia Centre and Herbert Smith Freehills, brought together leading experts of international investment law from Southeast Asia, North Asia, India and Oceania. The symposium re-examined the historical development of international investment treaties in the Asian region, focusing on whether and how the countries may be shifting from rule takers to rule makers. A focus was on the ASEAN(+) treaties, including the (ASEAN+6) Regional Comprehensive Economic Partnership (RCEP) at an advanced stage of negotiations, and the Trans-Pacific Partnership (TPP) Agreement, which was discussed more broadly as an urgent topic in the wake of the change of direction by the US under President Donald Trump’s administration. Participants at the symposium also elaborated on the experiences of Asian countries with ISDS mechanisms, and the attitude towards ISDS before and after first major investor-state arbitration (ISA) cases in the region. The many speakers and discussants for the event further explored possible future trajectories of international investment treaty policymaking of Asia-Pacific countries, especially China, Japan, Korea, India, Australia and New Zealand.

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Yasuko Claremont et al, Citizen Power: Postwar Reconciliation

Dr Yasuko Claremont recently retired from the University of Sydney’s Japanese Studies Department, but is still actively publishing several works from a major conference and other events held in 2015 to mark the 70th anniversary of the end of the Asia-Pacific War, for a 5-year project on grassroots post-War reconciliation initiatives. (See also her recent translation of a well-known book about the 321 junior high school students killed by the 1945 atomic bombing of Hiroshima.) One event was a photographic exhibition displayed at the University of Sydney library, and Dr Claremont and photograph contributors are now bringing together photographs and commentaries together into a bilingual book entitled “Citizen Power: Postwar Reconciliation”, published by the Oriental Society of Australia, and distributed by Sydney University Press. (Two other volumes will be published by Routledge, and are also very timely given the ongoing sensitivities over the current Japanese government’s new security legislation.) Below are endorsements for the book by Profs Hugh Clarke, Tessa Morris-Suzuki and myself, followed by the Table of Contents.

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