Asia’s Changing International Investment Regime: Sustainability, Regionalization and Arbitration, Julien Chaisse, Tomoko Ishikawa and Sufian Jusoh (eds),
Springer, 2017, xii + 260pp, ISBN 978-981-10-588, 120 Euros

Reviewed by: Luke Nottage and Ana Ubilava (University of Sydney Law School PhD candidate)

This 14-chapter book published in late 2017 provides a succinct and quite comprehensive overview, as well as some detailed analysis, of key developments and themes in the rapidly evolving field of Asia-Pacific international investment treaties. It is particularly useful for readers in the antipodes, given for example Australia’s emphasis on concluding bilateral investment treaties (BITs) and especially more recently Free Trade Agreements (FTAs) with investment chapters, with counterparties in the Asia-Pacific region. Although the book’s title refers to “Asia”, several chapters refer to foreign direct investment (FDI) and treaties extending around the Pacific Rim, as well as some developments in Central Asia (a very different sub-region to South or especially East Asia).

The editors’ short Introduction, comprising helpful chapter summaries, explains that the book derived from the recent “rapid evolution of the international investment regime in the Asia-Pacific region”. It aims “to help predict the future regulatory framework in the region, and how the regional trends affect the development of global rules for foreign investment” (p1). Part I sets the scene by outlining “regional trends in an evolving global landscape”, including a growing concern about rebalancing FDI and treaties to promote sustainable patterns. Part II focuses on the “regionalization of investment law and policy ”, especially key intra-regional treaties concluded recently or under negotiation. Part III ends by asking whether we will see a trend “towards a greater practice of investment arbitration in the Asia-Pacific?”. The backdrop is that treaties and FDI flows are triggering somewhat belated, but nonetheless sometimes controversial, increases in both inbound and outbound investor-state dispute settlement (ISDS) claims involving Asian states or investors.

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The Australian Network for Japanese Law (ANJeL) is pleased to be coordinating two panels for the biennial conference of the Asian Studies Association of Australia, hosted this time by the University of Sydney. Below are the accepted presentation titles and abstracts.

ANJeL also will host for members some informal drinks and nibbles at the Sydney Law School, level 6, from 6pm on Tuesday 4 July. Members may register by emailing (by 30 June): ana.ubilava@sydney.edu.au

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https://brill.com/abstract/title/36129Guest blog written by: Nobumichi Teramura (UNSW PhD in Law candidate)

Ongoing dramatic geopolitical transitions in the world have inevitably impacted on the international business environment of the Asia-Pacific region. This requires Australia and other countries in the region to re-examine their legal infrastructure for transnational business disputes. Convergence and divergence of legal systems of competing and sometimes cooperating states in the Asia-Pacific require the Australian government and other stakeholders to address unprecedented legal complexities in private to private, private to public, and public to public commercial dispute resolution.

On 19 April 2018, the Sydney Centre for International Law (SCIL) at the University of Sydney Law School organised a post-ICCA symposium: “International Commercial Dispute Resolution for the 21st Century: Australian Perspectives”. The symposium, the second recently with the University of Western Australia (UWA) Law School and also supported by Transnational Dispute Management (TDM), brought together leading experts in international arbitration, investment law and international business law from all over the world. They examined broad and perhaps increasingly overlapping fields such as investor-state dispute settlement (ISDS) in a changing legal and political environment, cross-border litigation in the Asian region, other international commercial dispute resolution mechanisms (arbitration and mediation), and inter-state dispute settlement.

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The Trans-Pacific Partnership was signed in February 2016 by Australia, Japan, the US and 9 other Asia-Pacific countries, but the new Trump Administration withdrew signature in January 2017, so the remaining 11 re-signed a variant (TPP11 or CPTPP) in March 2018. Inquiries into ratification are now being conducted by the the Australian Parliament's Joint Standing Committee on Treaties (JSCOT, where the Government always had a majority of members, so will almost certainly recommend ratification) and the Foreign Affairs, Defence and Trade Committee in the Senate (where the Government lacks a majority overall). The Inquiry reports do not bind the Government anyway, so the big question remains: will the opposition Labour Party subsequently vote with the Government to enact tariff reductions consistently with this treaty, to allow the Government then to ratify the treaty so it can come into force?

A particular stumbling block will remain the TPP11's investor-state dispute settlement (ISDS) provisions, given as an option additional to inter-state arbitration for investors directly to enforce substantive commitments offered by host states to protect foreign investment, given that the Labour Party's policy remains opposed to including ISDS in treaties. Despite that policy position, going back to the the Gillard Government Trade Policy Statement in 2011 (in force until Labour lost power in 2013), the Labour Opposition nonetheless voted pragmatically with the Government to allow FTAs containing ISDS to come into force with Korea and China.

Below is my Submission to both Parliamentary Committees, focusing on the investment chapter and supporting ratification of the TPP11. It is based in part on my latest paper with A/Prof Amokura Kawharu focusing on recent ISDS cases and investment treaties (re)negotiated by Australia, and New Zealand where a new Labour Government has also renounced ISDS for future treaties, but pragmatically agreed to rather minimal changes to ISDS and the investment chapter overall in TPP11. The footnoted original versions of the Submission, available by the Committee websites, refer to some of my other recent writings concluding a 4-year ARC cross-institutional research project on international investment dispute management. One is a 21-chapter book on 'International Investment Treaties and Arbitration Across Asia', launched by former Chief Justice Robert French on Thursday 13 April as part of a SCIL-supported symposium on international commercial dispute resolution, including Australian perspectives.

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Prof Valerie Hans of Cornell Law School recently convened a fascinating online Forum comparing issues involving public participation in legal decision-making, especially but not limited to (quasi-)jury systems that have been (re)introduced into Asia-Pacific countries like Japan and Korea.

With kind permission from Prof Annelise Riles, well-known for her studies in legal anthropology and comparative legal theory with respect to Japan and Asia, we reproduced below Valerie's opening questions for the (usually closed) Forum convened by the Meridien180 initiative. That is followed by my brief Japan-focused posting in response to some of those questions as well as some intervening postings and topics raised by other Meridien180 members from around the Asia-Pacific region.

As explained on the website for Meridien180, it is:

a multilingual forum for transformative leadership. Founded in 2012, Meridian 180's strength comes from its membership—800+ thought leaders from academia, business, and the public sector from 29 different countries. With a center of gravity in the Pacific Rim, Meridian 180 builds the intellectual, social, and political infrastructure required to address the crises of today and tomorrow.

Meridian 180 is a partnership of Cornell University's Mario Einaudi Center for International Studies and the Clarke Program in East Asian Law and Culture at Cornell Law School, Ewha Womans University in Seoul, Korea, the Institute for Social Science at the University of Tokyo and the University of New South Wales in Sydney, Australia. The director of Meridian 180 is Annelise Riles, the Jack G. Clarke '52 Professor of Far East Legal Studies at Cornell Law School.

Hopefully a summary of the Forum discussions will made publically available. I certainly hope to draw on its many comparative insights when helping to set readings and marking essays by USydney students who are always intrigued by Japan's quasi-jury system in the criminal justice class in the ANJeL-supported "Kyoto Seminar on Japanese Law". That class was last taught in February 2018 by Profs Makoto Ibusuki and Dimitri Vanoverbeke.

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This is the title of my chapter written late last year for the 2nd edition of Matthias Reimann and Reinhard Zimmermann (eds) The Oxford Handbook of Comparative Law (OUP, 2018). It substitutes for, but respectfully builds on several aspects of, the Japan-focused chapter in the Oxford Handook's first edition by the late Prof Zentaro Kitagawa entitled "Development of Comparative Law in East Asia".

Below I reproduce introductory Part I and the Table of Contents for my chapter manuscript, a version of which will be presented with ENS-Lyon Prof Beatrice Jazulot as an ANJeL Visitor in early July 2018, at the biannual Asian Studies Association of Australia conference hosted by USydney. Then I reproduce useful references on comparative law generally in Japan, from pp177-81 of Baum/Nottage/Rheuben/Thier, Japanese Business Law in Western Languages: An Annotated Selective Bibliography (Hein, 2nd ed 2013).

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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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Japanese Law in Asia-Pacific Socio-Economic Context
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