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 draft book proposal 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 forthcoming soon via Kluwer Arbitration Blog).

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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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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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Congratulations to Stephen Ke (final-year Sydney Law School student, and former intern at the Centre for Asian and Pacific Law), Kieran Pender, Camilla Pondel and Dan Trevanion (ANU law students), who recently came out ahead of excellent teams from the National University of Singapore, followed by Osaka, Sophia, and Kyoto / Hitotsubashi universities. They had already competed very strongly in the INC moot as part of a larger Team Australia, including students competing also in the parallel Japanese-language division. Practice makes perfect! This year’s students won the Squire Patton Boggs Best English Negotiation Team award. Team Australia also was just short of the highest mark awarded in the English-language division for the Arbitration round, where students apply the UNIDROIT Principles of International Commercial Contracts.

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This extensively researched and succinctly written book effectively compares the processes and outcomes of several major movements for victims’ redress from governments in Japan and Korea. The focus is on campaigns that developed especially from the 1990s, an era of perceived “judicialization of politics, enabled by democratization in Korea in 1987 and more competitive electoral politics in Japan since 1993” (p. 203), when victims sought redress for poor decisions regarding Hansen’s disease (leprosy, as discussed in ch. 3), blood tainted with Hepatitis C (ch. 4) and abductions by North Korean authorities (ch. 5).

Arrington examines not just the respective victims’ contestations with the state, but also the nature and timing of their interactions with key mediating institutions (ch. 2): the legal profession (to pursue litigation), the media (providing publicity for their causes), and activist groups (for lobbying). In particular, she emphases how too much early engagement with politicians – even “elite allies” – aimed at achieving legislative or bureaucratic intervention, as occurs more in Korea’s more open-textured democratic process, may lead perversely to poorer redress outcomes as the issue becomes more polarised politically.

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Japan enacted in 2006 a more expansive version of mandatory accident reporting compared to the Australian Consumer Law regime implemented from 2011, and currently under review. For example, Japan's system extends to certain specified risks of harm (currently: carbon monoxide emissions or fires) and allows the regulators to make publically available the incident reports received from suppliers.

However, neither country presently has a General Safety Provision (GSP) requiring all consumer goods placed on the market to be reasonably safe. Given persistent problems with product safety failures in both countries, especially in Australia in recent years, perhaps the time has come. The possible enactment of a GSP has been on the agenda in the first five-yearly "ACL Review", with last month's Interim Report picking up several arguments related to product safety regulation made in my initial Submission for the Issues Paper earlier this year from Consumer Affairs Australia and New Zealand. Below is an extract from my second Submission (dated 22 November) also available online.

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[Below is a reaction to this news from the US on 22 November, from ARC discovery project co-researcher and Prof Leon Trakman, reproduced with permission from the forthcoming Newsletter of the International Law Association's Australian branch. The Newsletter will also include my related but broader AFIA Blog posting with JNU A/Prof Jaivir Singh, "Does ISDS Promote FDI? Asia-Pacific Insights from and for Australia and India".]

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Japanese Law in Asia-Pacific Socio-Economic Context
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