The first edition of this excellent textbook, reviewed here and written by Simon Greenberg, Christopher Kee and J Romesh Weeramantry, is forthcoming next year in a second edition that will include extra detailed comparisons from Asia-Pacific jurisdictions based on reports prepared by local experts. The second edition will be an even more valuable resource for practitioners and researchers in international commercial and treaty arbitration, given that so many countries in the region have adopted (and sometimes adapted) core international instruments like the New York Convention and UNCITRAL Model Law, including both Australia and Japan,

My former student Jim Morrison, now Senior Associate at Allens Linklaters in Sydney, has prepared with me a detailed (100+ page) report on Australia as the basis for our contribution to the second edition: available via http://ssrn.com/abstract=2514124. The report focuses on the most topical issues from a comparative perspective (as identified by those three commentators), raised in each of the 10 chapters of the Greenberg et al volume. However, the paper also provides an overview of the key provisions found in Australia’s (Model Law based) International Arbitration Act and main arbitration rules, with a particular emphasis on case law developments (including brief case notes) since statutory amendments in 2010. In addition, the paper includes a guide to other major publications related to international arbitration in Australia, especially since 2010. As mentioned in that paper, a more complete listing is provided below on this Blog (thanks to another former student, Ganesh Vaheisvaran). This should be a useful resource not only for those interested in Australia but also other Model Law based jurisdictions in the region, including Japan.

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My public lecture on this topic, bringing together two research fields of contemporary public interest, was presented on 24 September 2014 as part of Sydney Law School's Distinguished Speakers Program.

The session was kindly introduced by my colleague Prof Chester Brown, and ended with a commentary by NUS Asst Prof Jean Ho who kindly arrived straight from Sydney airport after her flight from Singapore.

The audio file of my presentation and Chester's introduction are available via Sydney Law School's podcast channel (specifically here), my Powerpoint slides are here (as a PDF), and a related short paper is here. Below is the abstract (with further hyperlinked references available here) and speaker/commentator bios.

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Below is the manuscript version of our Preface to Leon Wolff, Luke Nottage and Kent Anderson (eds) Who Rules Japan? Popular Participation in the Japanese Legal Process (forthcoming in early 2015 from Edward Elgar), comprising:

1. Introduction: Who Rules Japan?
Leon Wolff, Luke Nottage and Kent Anderson

2. Judging Japan’s New Criminal Trials: Early Returns from 2009
David T. Johnson and Satoru Shinomiya

3. Popular Participation in Labour Law: The New Labour Dispute Resolution Tribunal
Takashi Araki and Leon Wolff

4. In Defence of Japan: Government Lawyers and Judicial System Reforms
Stephen Green & Luke Nottage

5. Administering Welfare in an Ageing Society
Trevor Ryan

6. Reforming Japanese Corrections: Catalysts and Conundrums
Carol Lawson

7. Competition Law in Japan: The Rise of Private Enforcement by Litigious Reformers
Souichirou Kozuka

8. When Japanese Law Goes Pop
Leon Wolff

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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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This posting is based mainly on a Note that critically reviews The Trade and Foreign Investment (Protecting the Public Interest) Bill 2014, drawing on my written Submission and subsequent Senate Hearings. The fully footnoted version will appear in the next issue of the CIArb's "Australian ADR Reporter" or successor Journal. Readers may also be interested in my subsequent posting to the Kluwer Arbitration Blog, followed by the Senate Committee Report (27 August 2014) which agreed that the anti-ISDS Bill should not be enacted. Significant extracts from that Report will also be added and analysed in my draft paper at http://ssrn.com/abstract=2483610, with an introduction incorporating a version of the Note below.

This work is part of an Australian Research Council Discovery Project (DP140102526) funded over 2014-2016 jointly with Dr Shiro Armstrong and Professors Jurgen Kurtz and Leon Trakman, which was acknowledged in the Senate Bill hearings and final Report. The topic of ISDS will also be discussed at the Law Council of Australia’s 2014 International Trade Law Symposium, 18-19 September, Canberra, and will be the focus of an ABC National Radio broadcast on 14 and 16 September (with transcripts here).

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[This is an un-footnoted manuscript version of my review, forthcoming in the Journal of Contract Law, of:

Long Term Contracts, Kanaga Dharamananda & Leon Firios (eds)

Federation Press, Sydney, 2013, ISBN 987 186287 915 7, xxxviiii + 419pp, A$225.

The volume, derived from a conference held in Perth in 2012 and edited by a senior counsel with a junior solicitor from Western Australia (WA), adds a useful combination of theoretical and practical papers to the growing literature on long-term contracts (LTCs), especially for Australian and other common law jurists. With a focus on resources and energy contracts, the book is a welcome in-depth addition to more commercially-orientated publications on the subject. It is particularly topical given attempts by buyers in countries such as Japan, which takes 75% of Australia’s exports of liquefied natural gas (LNG), to renegotiate its long-term supply contracts with Australian sellers.

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Requirements or inducements for (especially listed) company boards to adopt a minimum number or proportion of "independent" directors (IDs), who are not executives as well as free from other relationships that might impede their capacity to exercise independent judgement on behalf of the company as whole, are spreading through the Asian region. This is rather curious, as many countries (including in fact Australia) have a tradition of large non-institutional blockholders, which typically have the capacity and incentive to exercise shareholder rights to extract information and influence the management and direction of the company. The need for IDs is therefore reduced, compared to countries with more dispersed shareholders, such as the US and especially the UK. However, blockholders can take advantage of dispersed shareholders, so the latter (or policy-makers more generally) may still press to have more IDs on boards. Yet blockholders can be expected to lobby to resist such measures, and anyway the impact of IDs on corporate performance may be less in such jurisdictions.

This backdrop may explain the difficulties in introducing requirements for IDs into Japan, despite calls for more IDs in the wake of corporate failures (such as Olympus) and the enactment of the Companies Reform Act on 20 June 2014 (after extensive deliberations). But it is also consistent with the history and reality of IDs in Australia's listed companies. Below is the Abstract for a detailed draft paper comparing Australian developments, co-authored with my colleague Fady Aoun, for the Berlin conference / book project on "IDs in Japan and other Major Asian Jurisdictions" (click here for a PDF of our Powerpoints), as well as the third joint research conference for USydney, UGeneva, Harvard and Renmin Law Schools (hosted in Beijing over 11-12 July: click here for an audio file of my 13-minute presentation by video link).

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Japanese Law in Asia-Pacific Socio-Economic Context
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