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May 2012

[Adapted from the 21 May news item from the Max Planck Institute for Comparative and International Private Law (MPI)]

A ground-breaking English-language summary and commentary on leading Japanese judgments in the field of business law has been published as a Festschrift to mark the 60th birthday of Harald Baum, the Senior Research Fellow and Head of the Japan Unit at the MPI in Hamburg. Students, colleagues and friends of Harald Baum from Europe, Japan, the USA and Australia [namely, Luke Nottage] honour the achievements of the longstanding Max Planck academic with a collection of 72 judgments from Japanese courts on issues of intellectual property rights, civil law and international private and business law.

The collection of cases edited by Moritz Bälz, Marc Dernauer, Christopher Heath and Anja Petersen-Padberg complements the Handbuch Japanisches Handels- und Wirtschaftsrecht (Encyclopedia of Japanese Commercial and Business Law) which Harald Baum edited with Moritz Bälz in 2011. The Festschrift contains contributions from over 50 notable authors from academia and legal practice and thus becomes one of the standard works on Japanese business law written in a Western language. The publishers note their intention of ensuring that the contributions do justice to the high academic standards repeatedly set by the honouree.

The Festschrift was presented to him at the Institute by the publishers on 14 May 2012 during an academic ceremony, including an address by Prof. John O. Haley. Prof. Dr. Harald Baum has been a Senior Research Fellow and Head of the Japan Unit he founded at the Institute in Hamburg since 1985. As founding editor since 1996 of the Zeitschrift für Japanisches Recht / Journal of Japanese Law, he has had a significant impact on comparative research and academic discussions in this area. [The Australian Network for Japanese Law helps in editing and promoting the Journal, and is pleased to have Prof. Baum as a founding member of ANJeL's Advisory Board. ANJeL warmly congratulates him and the editors on this latest book, which is described further below (adapted from the Kluwer website).]

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As NZ lawyer Daniel Kalderimis points out recently, concerns about treaty-based investor-state arbitration (ISA) have been:

stirred up by the release of an “Open Letter from Lawyers to the Negotiators of the Trans-Pacific Partnership Urging the Rejection of Investor-State Dispute Settlement” on 8 May 2012. The letter is backed by well-meaning, and several well-known, signatories; most of whom are not especially well-informed about investor-state arbitration. The fact of the letter is welcome, as the issues are important. But the letter itself contains several overstatements and does not make a balanced contribution to the debate.

Another oddity about the "Open Letter" is that it refers generically to "Investor-State Dispute Settlement" (ISDS) and ends by calling on "all governments engaged in the TPP [Trans-Pacific Partnership FTA] negotiations to follow Australia’s example by rejecting the Investor-State dispute mechanism and reasserting the integrity of our domestic legal processes". ISDS incorporates both ISA (where the parties agree to be bound by the arbitrators' decision) and investor-state mediation ("ISM") or conciliation procedures (where the parties agree to negotiate a settlement but are not obliged to accept any proposals made by the third-party neutral mediator). At least the rest of the "Open Letter" indicates that the primary objection is to binding ISA.

By contrast, the "Gillard Government Trade Policy Statement" (April 2011) simply eschews ISDS in Australia's future treaties, including the TPP. Perhaps the Statement meant only ISA, which allows greater inroads into host state sovereignty, given that overall it draws on the Productivity Commission's recommendations from a 2010 Trade Policy Review report. But, by seemingly eschewing all forms of ISA, the Statement seems to go beyond the Commission's recommendation on ISA itself.

Hopefully the Australian government, other states involved in FTA negotiations (such as the TPP) and those who wish to improve the ISA system (such as myself) or abandon it altogether (as do some signatories to the Open Letter) will not simply transpose their objections over to ISM too. There is significant scope for mediating investor-state disputes, and indeed the Draft Rules on ISM published recently by the International Bar Association (IBA) are a valuable guide to conducting mediation more effectively. Below I set out some preliminary analysis of those Draft Rules, prepared for the Law Council of Australia but representing my own personal views - particularly regarding the scope for arbitrators to adopt them as a means of settling ISA claims earlier and more effectively (ie 'Arb-Med'). A fully-footnoted version of my views is available on request, and I encourage feedback.

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Written by Fady Aoun & Luke Nottage, Sydney Law School

[This is an earlier manuscript version, without footnote references, of our review published in the (March 2012) special issue 34(1) of the Sydney Law Review, on Asian investment and finance law. The final and complete version, along with eight articles and an introduction by the guest editors (Vivienne Bath and Luke Nottage), can also be downloaded here.]

Dan W Puchniak, Harald Baum and Michael Ewing-Chow (eds) The Derivative Action in Asia: A Comparative and Functional Approach (Cambridge University Press, 2012), 434pp, ISBN-13: 9781107012271

A decade or so ago, in the aftermath of the Asian Financial Crisis (1997), international institutions like the World Bank saw corporate governance as deeply problematic in many parts of Asia — contributing to so-called ‘crony capitalism’ and economic instability. The proposed solution was often reform based on Anglo-American models, aimed at promoting more transparent securities markets by, for example, protecting minority shareholders. Some Asian jurisdictions made changes in that direction, at least according to the ‘law in books’, but they varied in scope and impact. Within a decade, moreover, large-scale corporate collapses in the West — particularly in the United States — and the Global Financial Crisis (2008) had called into question some fundamental assumptions and prescriptions of the Anglo-American approach to corporate governance. Intellectually, therefore, it is timely to revisit the situation in Asia from a broader comparative and historical perspective. Analysis of corporate governance in Asia also has obvious and immediate practical merit, given the region’s strong economic growth relative to Europe and the US, and especially in light of burgeoning cross-border investment flows arguably needed to sustain ‘the next convergence’ of developing and developed economies.

This book therefore represents an admirable and successful step towards a better understanding of what many commentators have proposed as an important potential contributor to minority shareholder protection and effective corporate governance: namely, the derivative suit brought by a shareholder on behalf of the company.

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