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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Taking Seriously Consumer Product Accident Reporting Duties under Australian Law

On 8 June 2013 the Sydney Morning Herald reported that Volkswagen Australia would be formally recalling Golf and other Volkswagen-made models that had suddenly lost power. The family of one driver and the driver of a truck that rear-ended her Golf vehicle are arguing before the coroner that this was a possible cause for her fatal accident. Over 300 other owners of Volkswagen-made vehicles have also reported problems. Similar concerns about some of Volkswagen’s direct-shift gearboxes had led to formal recalls of some models as early as 2009 in the USA, then in China, Singapore, Japan, Malaysia and Taiwan. However, Volkswagen reportedly stated that Australia does not have the same gearboxes, and instead had initially undertaken a program involving its dealers. Marketing experts have criticised the recall recently commenced in Australia, suggesting that Volkswagen will have suffered extensive damage to its brands by not acting publically earlier to address consumer concerns – in addition to the estimated $170m in direct repair costs.
It will probably come as no surprise that Volkswagen conducted recalls more promptly in the USA. Toyota suffered extensive adverse publicity there relating especially to problems instead involving sudden acceleration, generating recalls of over 10 million vehicles over 2009-2011 and a recently-finalised $1.6b class action settlement. Nor should it be surprising that Volkswagen undertook a recall in Japan. Japanese consumers have become increasingly sensitive about product safety issues, especially since 2000 – when Mitsubishi Motors was found to have been conducting illegal clandestine recalls over an extended period. The delay in Australia is disturbing, especially given the increased attention otherwise being paid to consumer protection since “re-harmonisation” pursuant to the Australian Consumer Law (ACL) reforms enacted in 2010.

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

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

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Discourse and Practice in International Commercial Arbitration

On 24 May 2013 I gave a presentation by videolink to a conference on “The Roles of Psychology in International Arbitration“, held in London at Brunel University, in the session related to international arbitration awards. This drew partly on Hong Kong based interdisciplinary research project on discursive practices in international arbitration, with considerable emphasis on Asia-Pacific developments. The presentation outline is below or here (download PDF file).

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Disaster Management: Socio-Legal and Asia-Pacific Perspectives

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

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

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

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“What do Australia and others expect from Japan in regional FTA negotiations?” (eg ISDS)

I was recently interviewed on this topic by NHK World Radio’s principal program director, Yutaka Konishi. His main questions and some of my points in response are outlined below. Some of our interview was broadcast on “Radio News in English” on 9 May 2013, at http://www3.nhk.or.jp/nhkworld/english/radio/program/), the transcript of the full interview is here (download PDF file), and my own notes are reproduced below.
Later I was also interviewed in Sydney by TV Asahi specifically about investor-state arbitration (and other ISDS) provisions in the expanded Trans-Pacific Partnership (TPP) negotiations, which Japan has now officially joined. The 14-minute special feature from their “Hodo Station” evening news on 24 May is also available on YouTube, and a video-clip of my edited comments (from 7m30s to 8m5s) can also be downloaded here (11MB .mov file). In the longer interview in Sydney, I reiterated that there is ample scope for this new FTA to include innovative ISDS provisions that appropriately balance the interests of host states (in regulating for the public interest) and private investors (seeking minimum and internationally-accepted legal standards before committing long-term investments). Em Prof Mitsuo Matsushita (former WTO Appellate Body judge) and especially Mr Shigeaki Koga (a former METI official) also emphasised this point in their comments for the Hodo Station special feature. As the TV Asahi website overview pointed out, this topic is now attracting considerable interest in Japan:
ＴＰＰ検証『ＩＳＤ条項』
ＴＰＰ＝環太平洋経済連携協定について考える。今回は、『ＩＳＤ条項』について。国が制度を変えることによって、投資をしている企業が損をした場合、その企業が賠償金を求めて国際機関に訴えることができる仕組みだ。そもそも、ＩＳＤ条項は、企業が安心して途上国への投資を行えるよう作られた制度で、これまでに提訴された国をみると、アルゼンチンやベネズエラ、メキシコなど、投資に関する法整備が遅れている国が目立つ。日本も、これまで結んだ投資協定のうち、ほぼすべてにＩＳＤ条項が盛り込まれているが、実際に訴えられたケースはない。しかし、近年、先進国が訴えられるケースも増えている。メキシコ、アメリカ、オーストラリアの現場を取材。ＩＳＤ条項をめぐり、各国が火花を散らすなか、日本はどうするのか。

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Sydney Law School students in Asia: (3) China

Sydney Law School has a close relationship with the East China University of Politics and Law (ECUPL) in Shanghai, which has been teaching a short-term course in Chinese Law for our students for almost 20 years. We also have relationships with many other leading law faculties in China, especially Shanghai Jiao Tong, Wuhan and (in Beijing) Tsinghua, Renmin and Peking universities. USydney LLB and JD law students can apply for semester-length exchanges at all these universities via university-level exchange agreements (except Renmin, for now, and Wuhan), although places are limited as students from other USydney faculties also apply for exchanges.
Angelica McCall, a final-year LLB student, reports below on her experience in the short-term Chinese Law course offered at ECUPL. She also enjoyed taking the short-term “Sustainable Development Law in China” course offered generally every second year in Wuhan, and in June will be attending an international law students forum hosted by Renmin University.

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Sydney Law School students in Asia: (2) Japan

As well as semester-length exchange opportunities, such as those described by Ganesh Vaheisvaran (presently at Yonsei University in Korea), Sydney Law School has already started to meet the challenge of ‘Australia in the Asian Century‘ by developing short-term offshore courses in various Asian countries.
Jenny Han, a final-year LLB student with a BA (Hons) in Japanese Studies, first reports below on two experiences in Japan. The Kyoto/Tokyo Seminars in Japanese Law are offered for credit to LLB/JD and Masters students over 10 days every February, to Japanese, Australian and other international students. Participation in the INC negotiation and arbitration competition in Tokyo usually attracts course credit (within the ‘International Moot’ LLB/JD unit), although Sydney Law School is moving towards fielding a team every two years (recommencing in the December 2015 moot). We are very grateful for financial supporters of these opportunities for closer engagement with Japan, especially Mr Akira Kawamura (LLM 1979, former President of the International Bar Association) and Mitsui Matsushima Australia Pty Ltd.
Glenn Kembrey then adds some remarks on his student exchange at Kobe University. He enjoyed it so much that he extended his stay beyond one semester (needed to complete his USydney LLB degree), studying in Kobe for another semester to hone his skills in comparative law.

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Sydney Law School students in Asia: (1) Korea

The Australian government is slowly following up on the agenda set out in last year’s ‘Australia in the Asian Century’ White Paper. An Implementation Plan has now been announced, along with an expanded Strategic Advisory Board, and public Submissions are sought on follow-up individual country strategies (by 31 May) for Japan, China, Indonesia, India and South Korea.
Of particular interest for Australian universities and their students, on 6 April the first round of applications opened for ‘AsiaBound’ study – with a deadline of 20 May 2013. The government had already announced on 31 October 2012, albeit in broad terms, the $37 million AsiaBound Grants Program:

AsiaBound provides funding in the form of $2000 or $5000 grants for around 3600 Australian students each year to participate in a study experience in Asia. Students are able to undertake short-term mobility for a variety of experiences including practicums, clinical placements, research trips or volunteer projects for up to 6 months. Students are also able to undertake semester based experiences for one or two semesters. In addition to study grants, AsiaBound offers grants of $1000 for preparatory Asian language study that can be undertaken prior to or concurrently with an approved mobility project.

Program Aims:
Increase the overall number of Australian students with a first-hand study experience of Asia through funding for short-term study and language grants as well as increased OS-HELP loans
Encourage more students to become Asia-literate by supporting institutions to diversify their mobility offerings in Asia
Enhance the skills and expertise of Australians through access to a variety of study opportunities in Asia
Support increased Asian language competency of Australian students together with mobility experiences
Increase collaboration and partnerships between Australian and Asian higher education and vocational institutions.

Hopefully this program will further encourage Sydney Law School student engagement with the fascinating world of law in Asia. Already they enjoy opportunities for short-term offshore courses in Japan (every February), China, Malaysia/Indonesia and Nepal. Our law students also have also competed successfully since 2005, as part of ‘Team Australia’ with ANU students, in the Intercollegiate Negotiation and Arbitration competition (INC) held in Tokyo each December. There is also growing interest in semester-length offshore exchanges to leading law schools in Asia, thanks to efforts to expand university- and faculty-level student exchange agreements (traditionally focused more on Europe and North America) as well as the growing numbers of law courses offered in English by partner institutions in the region. The government’s new ‘AsiaBound’ funding should further increase the attractiveness of these opportunities.
Already, our law students are taking the plunge. An example is Ganesh Vaheisvaran, who mooted at the INC in Tokyo (in the English-language division in 2011, and in the Japanese-language division last year). He is now spending a semester at Yonsei University in Seoul, thanks to a university-level student exchange agreement reinforced by a new faculty-level MOU. As you can read from the report below, Ganesh is obviously enjoying his Korean law and language studies – as well as some interesting extra-curricular activities!

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