International Commercial Arbitration in Japan and Australia: Addressing Australia's "Legislative Black Hole" and Comparing Caselaw
Profs Tatsuya Nakamura, J Romesh Weeramantry and myself will present a public seminar at JCAA in Tokyo on 20 July to compare recent developments in jurisdictions that have based their arbitration legislation on the UNCITRAL Model Law (respectively: Japan, Hong Kong and Australia). Below are details of a follow-up seminar on 13 September in Sydney organised by Sydney Law School and hosted by Clifford Chance, where Prof Nakamura will be the main speaker.
Prof Nakamura and I will also participate on 12 September in Brisbane in an interactive AFIA (Australasian Forum for International Arbitration) symposium hosted by Corrs Chambers Westgarth.
These events are part of our joint research project, "Fostering a Common Culture in Cross-Border Dispute Resolution: Australia, Japan and the Asia-Pacific", supported by the Commonwealth through the Australia-Japan Foundation which is part of the Department of Foreign Affairs and Trade.
Background materials for these three events include:
1. Nakamura, Tatsuya and Nottage, Luke R., Arbitration in Japan (May, 30 2012). ARBITRATION IN ASIA, T. Ginsburg & S. Ali, eds., Juris: NY, Fothcoming; Sydney Law School Research Paper No. 12/39. Available at SSRN: http://ssrn.com/abstract=2070447
2. Garnett, Richard and Nottage, Luke R., What Law (If Any) Now Applies to International Commercial Arbitration in Australia? (May 2012). Sydney Law School Research Paper No. 12/36. Available at SSRN: http://ssrn.com/abstract=2063271
The latter identifies the following serious and growing legislative lacuna that has emerged since Australia revised its framework for international arbitration from 2010:
The amendments to the International Arbitration Act 1974 (Cth) (‘IAA’) enacted on 6 July 2010 aimed to reposition Australia as a leading Asia-Pacific venue for international commercial arbitration. They also aimed to streamline and revitalise domestic arbitration by providing the new template for reforms to the uniform Commercial Arbitration Act (‘CAA’) regime, originally enacted in the mid-1980s based on a more interventionist English law tradition.
Yet the IAA amendments did not clearly indicate whether some were intended to apply to (a) international arbitration agreements, (b) specifying the seat of the arbitration to be in Australia, (c) concluded before 6 July 2010, especially if (d) the parties had expressly or impliedly excluded the UNCITRAL Model Law on International Commercial Arbitration pursuant to the original s21 of the IAA. The present authors had suggested that these amendments, especially s 21 which no longer allows such an exclusion, were not intended or presumed to have retrospective effect. The Western Australian Court of Appeal recently agreed, unlike a Federal Court Judge at first instance, although in obiter dicta in both cases.
This article restates the problems created by the IAA amendments (Part II), analyses Australian case law decided since 6 July 2010 (Part III), and then proposes a way forward – including comparisons with other Asia-Pacific jurisdictions that have recently enacted arbitration law reforms, especially Singapore and Hong Kong (Part IV). It recommends prompt further IAA amendments that: (i) clarify that at least the new s 21 does not have retrospective effect, (ii) limit a persistent tendency among some Australian courts to infer that a selection of arbitration rules amounts to an implied exclusion of the Model Law under the old s 21, and (iii) consider several other reforms addressing other issues left unclear or not covered in the IAA as amended in 2010.
The article also urges reforms to the new uniform CAA regime (including CAA legislation already enacted in NSW, Victoria and South Australia) that ‘save’ old international arbitration agreements satisfying conditions (a)-(d) above. The old CAA legislation, or at least the new CAA regime, should clearly apply to such agreements - otherwise they will fall into a ‘legislative black hole’. That problem arises because states are enacting the new CAAs to apply only to ‘domestic’ arbitration agreements, while simply repealing the old CAAs (which applied also to international arbitration agreements, especially if the parties had agreed to exclude the Model Law as permitted by the old s 21 of the IAA).
“International Arbitration in UNCITRAL Model Law Jurisdictions: Comparing Recent Developments in Japan”
13 September 2012, 5.30pm (refreshments) for 6-7.30pm
Hosted by: Clifford Chance, Level 16, No. 1 O'Connell Street, Sydney
Registration is free but places are limited: RSVP by 7 September to firstname.lastname@example.org
Organised by: Sydney Law School - Centre for Asian and Pacific Law (CAPLUS), Australian Network for Japanese Law (ANJeL) & Sydney Centre for International Law (SCIL)
Supported by: Australian Centre for International Commercial Arbitration (ACICA), Australasian Forum for International Arbitration (AFIA.asia), Australian International Disputes Centre (AIDC), Chartered Institute of Arbitrators – Australia (CIArb), Japan Commercial Arbitration Centre (JCAA)
Overview: This seminar will discuss recent case law and other topics related to international commercial arbitration in Japan, of particular interest from an Australian perspective, including: the standard of reasoning required from arbitrators, challenges to awards based on public policy or inability to present one’s case, time limits for bringing challenges, interim measures, enforceability of multi-tiered dispute resolution agreements, confidentiality, and “Arb-Med” (legal and practical issues involved when arbitrators facilitate settlement, as is still quite frequent in Japan).
The seminar will also touch on some developments in other jurisdictions that have adopted the UNCITRAL Model Law for their arbitration legislation, especially the recent decision regarding Arb-Med rendered by the Hong Kong Court of Appeal in Gao Hai Yan & Anor v Keeneye Holdings Ltd & Ors  HKEC 514. This will build on discussion from a 20 July seminar in Tokyo involving Dr J Romesh Weeramantry and the present speaker and commentator.
The seminar will also briefly consider the differing policy stances towards incorporating investor-state arbitration provisions in investment treaties adopted by Japan (positive) and Australia (now negative), and some implications for ongoing bilateral Free Trade Agreement and Trans-Pacific Partnership negotiations.
Professor Tatsuya Nakamura specializes in international dispute resolution and ADR, especially arbitration. He is Professor of Law at Kokushikan University in Tokyo and General Manger of Arbitration Department of the Japan Commercial Arbitration Association. His publications include Japanese Arbitration Law Q&A (2004), International Business Disputes – Arbitration, Mediation and Negotiation (2012), and many articles and books in Japanese and English – including a chapter (with Luke Nottage) on Japan in Tom Ginsburg et al (eds) Arbitration in Asia (3rd ed. 2102, also at http://ssrn.com/author=488525). Prof Nakamura helped enact Japan’s Arbitration Law 2003, as a member of the Consultative Committee of Experts on Arbitration for the Japanese Government’s Office for Promotion of Justice System Reform of the Japanese Government. He is also on the International Arbitrators Panel of the Korean Commercial Arbitration Board.
Dr Luke Nottage specialises in comparative and transnational business law (especially arbitration, contract law, and consumer product safety law). He is Associate Dean and Professor of Comparative and Transnational Business Law at Sydney Law School, ANJeL co-director, and director of Japanese Law Links Pty Ltd. Publications include International Arbitration in Australia (2010), Foreign Investment and Dispute Resolution in Asia (2011), and (at http://ssrn.com/author=488525) a paper summarising and identifying trends in recent case law under the International Arbitration Act 1974 (Cth). Luke has executive roles in ACICA (Rules Committee), AFIA (Council) a nd the Law Council of Australia (ILS). He is presently involved in a Japan-related arbitration in London, and has consulted for law firms world-wide, the EC, the OECD, the UNDP and the Japanese government. Luke is leading a research project (including Prof Nakamura) on “Fostering a Common Culture in Cross-Border Dispute Resolution: Australia, Japan and the Asia-Pacific”, funded by the (DFAT-affiliated) Australia-Japan Foundation.
Tim Grave is a partner in Clifford Chance’s Sydney office, specialising in commercial dispute resolution and related advice across a wide range of matters, including Corporations Act matters, directors duties, commercial and contractual disputes, equitable claims, trade practices, and investigations by regulators. In the last 12 months Tim has acted in two international arbitration related matters in the Federal Court. The first involved acting for a European applicant in successfully obtaining recognition and enforcement of a foreign arbitral award that was opposed by the Indian respondent. The second involved acting for Russian respondents in the first application in Australia for interim relief under the Model Law by way of freezing orders against the respondents’ Australian assets.