[Report of a Conference hosted at the University of New South Wales, 12 August 2016:

Written by Profs Rosalind Dixon, University of New South Wales, and Juliano Zaiden Benvindo, University of Brasília

Reproduced with permission from: http://www.iconnectblog.com/2016/08/conference-report-democracy-pacificism-constitutional-change-in-japan-amending-art-9-university-of-new-south-wales/]

On August 12, 2016, the Gilbert + Tobin Centre of Public Law at the University of New South Wales (UNSW) in Sydney, Australia, and the Australian Network for Japanese Law (ANJel) hosted the symposium “Democracy, Pacifism & Constitutional Change in Japan: Amending Art. 9?”. The symposium was convened by Rosalind Dixon and Luke Nottage with the purpose of providing a rich discussion of the new developments on Japanese constitutionalism, especially focusing on its pacifist clause (Art. 9). Scholars from distinct parts of the world sought to stress how informal and formal change intertwine with each other in the current context of the Japanese government’s political actions aimed at a revision of the scope and limits of that clause.

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The Trans-Pacific Partnership free trade agreement, signed on 4 February 2016 among 12 Asia-Pacific economies, faces a rocky road to ratification. In the run-up to the US presidential election in November, both Donald Trump and (for now) Hillary Clinton say they are opposed.

Yet Australian Prime Minister Turnbull urged President Obama to put the FTA to a vote in Congress during the ‘lame duck’ session before inauguration the new President is inaugurated, to counter the spectre of protectionism but also for broader geopolitical reasons. The Abe Government, fortified by its mid-year Upper House election victory, would surely then ensure ratification by Japan, thus bringing the TPP into force within the two-year window from its signature. (Beyond that, it can still come into force but only if all 12 countries complete ratification.)

However, back home in Australia, the Turnbull Coalition Government faces its own challenges in enacting tariff reduction legislation needed before it too can ratify. After the 7 July general election, although the Government was returned with a razor-thin majority in the lower House of Representatives, it has a reduced minority in the upper house (30 out of 76 Senators). It would therefore need votes from at least nine other Senators, yet the (nine) Greens Senators will never vote with the Government given their Party’s implacable opposition to FTAs. Of the 11 other cross-bench Senators, Pauline Hanson’s ‘One Nation’ (four) Senators are notoriously xenophobic, while the Nick Xenophon Team (three) Senators favour more support for local manufacturing.

Accordingly, the Government will more likely have to court votes from the Labor Opposition. Yet the latter has generally not been cooperative in Parliament, perhaps hoping something will happen in the lower House to trigger a new election. And in June, Labor had reiterated that if elected, it would not countenance ‘new’ FTAs that added the option of investor-state dispute settlement (ISDS) – in addition to inter-state arbitration provisions – to better enforce substantive commitments aimed at encouraging more foreign direct investment (FDI). The TPP provides for ISDS, like almost all FTAs nowadays, and this continues to generate broader public debate – as does FDI more generally. My recent co-authored econometric study outlined below examines more generally the links between ISDS-backed treaty commitments and FDI, which can inform ongoing policy debates in Australia and further afield.

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Articles by Andrew Watson and Stacey Steele in the latest issue (41, 2016) of the Journal of Japanese Law review recent developments in Japanese legal education. They helpfully add to an already surprisingly voluminous literature in Western languages on the topic. This short Comment summarises some background before sketching some innovative ways forward. [A fully-footnoted version is forthcoming in the next issue of the Journal.]

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Treaty-based investor-state arbitration (or ISDS more generally) is an increasingly topical issue, as FDI flows continue to grow, especially across Southeast Asia and the rest of the Asian region, and host states have begun to experience some claims brought by disgruntled foreign investors.

This conference organised for Thursday 16 February 2017 by the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS), and the Sydney Centre for International Law (SCIL), builds on the lively and timely conference funded by Chulalongkorn University's ASEAN Studies Centre in Bangkok on 18 July 2016, which compared the experiences and policy debates in each of the ten ASEAN member states. Those country reports are now being revised for review and eventual publication in a leading journal, with versions then being combined with papers on pan-Asian investment treaties and arbitration to be presented on 16 February 2017, for a co-edited book published by the same legal publisher.

This upcoming conference will bring together leading experts from Southeast Asia, North Asia, India and Oceania, including several from institutional partners of USydney. It will help round off a major cross-institutional and interdisciplinary research project into international investment dispute management more generally, funded by the Australian Research Council since 2014. The annual SCIL "International Law - Year in Review" symposium will also take place the next day, on Friday 17 February 2017.

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The manuscript is in press for "Independent Directors in Asia", co-edited for Cambridge University Press with ANJeL stalwarts Profs Harald Baum (MPI Hamburg), Souichirou Kozuka (Gakushuin, Tokyo) and Dan Puchniak (NUS). As previously mentioned on this Blog, contributions have been extensively workshopped at major conferences in Berlin and then Singapore, as well as by individual authors in other forums.

A longer version of the chapter comparing Australia, which I co-authored with Fady Aoun, has also been published in June 2016 by the University of Miami International and Comparative Law Review. Our summary of some trends revealed by the broader comparative analysis in the CUP book is forthcoming by November from the Company and Securities Law Journal. As we conclude briefly in that Note, a comparative perspective on the complex diffusion of independent director requirements across Asia makes us wary about simply extending the requirements for listed companies to industry-based superannuation funds in Australia, as proposed in a failed Bill last year but still being developed through self-regulation.

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ANJeL is pleased to host the first event below in Brisbane, and co-host the second at UNSW (as well as the 10 August CAPLUS symposium on Consumer and Contract Law Reform in Asia).

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[A shorter version of this posting was published on 1 July 2016 on the East Asia Forum blog.]

International investment treaties and investor-state dispute settlement (ISDS) are in the news again, notably in Australia and India, which are negotiating a bilateral Free Trade Agreement (FTA) as well as the Regional Comprehensive Economic Partnership (RCEP or “ASEAN+6” FTA). The possibility is emerging of a shift from US-style to contemporary EU-style treaty drafting in the broader Asian region, as a new compromise between the interests of foreign investors and host states.

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Japanese Law in Asia-Pacific Socio-Economic Context
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