Blog home

Japanese Law

"Save the date" for this international conference organized by the:
Max Planck Institute for Comparative and Private International Law
Japanese-German Center Berlin (JDZB)
German-Japanese Association of Jurists (DJJV)

[For the latest Program, see http://sydney.edu.au/law/anjel/documents/2014/independent_directors_berlin_program.pdf (as of 9 April) or via http://sydney.edu.au/law/anjel/content/anjel_events_up.html (also for registration details etc)]

Date: 17–19 July 2014

Format: 2-day conference open to public, plus half-day closed session for editors and authors of a conference volume

Venue: Japanese-German Center Berlin (JDZB)

Sponsors: Fritz Thyssen Foundation

Publication: edited by Harald Baum, Souichirou Kozuka, Luke Nottage & Dan Puchniak

Further details will be provided via http://sydney.edu.au/law/anjel/content/anjel_events_up.html

Read more...

The Australian Network for Japanese Law (ANJeL) will host the Cairns Symposium on Japanese Law on Friday 16 May, with special thanks to ANJeL member and James Cook University Associate Professor Justin Dabner. Registration should be completed by emailing your name and institution to anjelinfo@gmail.com; registration costs $60 for non-speakers (to cover lunch and teas) and can be paid on the day of the conference (please inform in advance if a receipt is required).

[Updated 26 April] The Symposium's theme is 'Japanese Law and Business Amidst Bilateral and Regional Free Trade Agreements' - by happy coincidence, in light of the conclusion of negotiations for the Japan Australia Economic Partnership Agreement on 7 April 2014 (see media commentary here). However, presentation proposals dealing with other Japanese Law topics were also welcomed, as in previous ANJeL conferences held since 2002. As indicated by Abstracts below, speakers will cover fields including agricultural land law and policy, corporate law reforms, insolvency law and practice, long-term contracting, cross-border investment dispute resolution, tax treaties, emissions trading schemes and political participation rights.

Read more...

Written by Joel Rheuben (with a more extensively hyperlinked version at freedominfo.org)

As recently reported on the ABC, on 25 October the Japanese government moved to introduce to the Japanese legislature the “State Secrecy Bill” (formally, the Bill on the Protection of Designated Secrets). The government apparently hopes to make the bill law by the end of the year, in time for the establishment of a new National Security Council, which has been used as the justification for the bill.

Perhaps because of this rush, the bill is – to paraphrase Oscar Wilde – not only bad, but badly written, which is worse.

Read more...

The late Professor Zentaro Kitagawa (1932-2013) is sorely missed, as a renowned scholar of private law and comparative law, as well as an extraordinarily active builder of bridges among researchers in Japan and many parts of the world.

Melanie Trezise's translation of a speech given by his "deshi" Professor Keizo Yamamoto at a Remembrance Function, held in Kyoto on 23 June 2013, will be published in the next issue of the Journal of Japanese Law along with the following brief remarks from Professor Harald Baum and myself - who first met in 1992 as researchers at Kyoto University under Professor Kitagawa. Sydney Law School will also host a symposium on "Contract Law Reform in Asia", on 6 December 2013, dedicated to the inspiration and intellectual energy provided by Professor Kitagawa.

Read more...

Written by Dan Rosen (Professor, Chuo Law School)

You don’t need to believe in the system of making merit for a future life to appreciate its value in the present one. Satoru Osanai was a world-class merit-maker, spreading it across the globe and empowering others to do the same.

Professor Osanai died on September 4th, a few days after his 71st birthday. Throughout his career at Chuo University, he introduced Japanese students and scholars to the legal systems of other countries, and he demystified Japan’s legal system for audiences abroad.

Read more...

Japan’s is well underway on the path to completing its first comprehensive reform of contract law since enactment of the Civil Code in 1896. A driving force has been Takashi Uchida, a prominent participant in Japan’s intense discussions over contract law theory in the early 1990s. He resigned in 2007 as Professor of Civil Law at the University of Tokyo in order to spearhead deliberations within the Legislative Council (hosei shingikai) of the Ministry of Justice (MoJ), now charged with recommending specific reforms.

At the Council’s first Working Group meeting on 22 November 2009, one member reportedly suggested that deliberations should proceed “without paying too much attention to ‘the Basic Policy for the Law of Obligation Reform’ (draft proposals by [the] Japanese Civil Code (Law of Obligations) Reform Commission)” because it had been confirmed that the Working Group’s deliberations should start “from zero”. However, the Draft Proposals (DP) published in April 2009 by that semi-private Reform Commission, along with a detailed five-volume commentary written by its members, were clearly intended to frame the subsequent debate in the formal Working Group arena – and have mostly achieved that effect.

Read more...

As well as semester-length exchange opportunities, such as those described by Ganesh Vaheisvaran (presently at Yonsei University in Korea), Sydney Law School has already started to meet the challenge of 'Australia in the Asian Century' by developing short-term offshore courses in various Asian countries.

Jenny Han, a final-year LLB student with a BA (Hons) in Japanese Studies, first reports below on two experiences in Japan. The Kyoto/Tokyo Seminars in Japanese Law are offered for credit to LLB/JD and Masters students over 10 days every February, to Japanese, Australian and other international students. Participation in the INC negotiation and arbitration competition in Tokyo usually attracts course credit (within the 'International Moot' LLB/JD unit), although Sydney Law School is moving towards fielding a team every two years (recommencing in the December 2015 moot). We are very grateful for financial supporters of these opportunities for closer engagement with Japan, especially Mr Akira Kawamura (LLM 1979, former President of the International Bar Association) and Mitsui Matsushima Australia Pty Ltd.

Glenn Kembrey then adds some remarks on his student exchange at Kobe University. He enjoyed it so much that he extended his stay beyond one semester (needed to complete his USydney LLB degree), studying in Kobe for another semester to hone his skills in comparative law.

Read more...

This is a rich book, written by Cornell Law School's Professor Annelise Riles (University of Chicago Press, 2011, xii+295 pages). It is full of ideas and observations drawn partly from extensive fieldwork – particularly in Tokyo over 1997-2001 (p. ix), just as Japan was implementing its “Big Bang” reforms aimed at making its financial markets more “free, fair and global” (p. 120). It deserves careful reading, and re-reading, by those researching Japan as well as those interested in financial markets, regulatory theory, contract law, international commercial law, socio-legal studies and anthropology more generally.

Read more...

The 10th Asian Law Institute (ASLI) conference will take place in Bangalore at the National Law School of India University (NLSIU) over 23-24 May 2013. The following is an accepted panel proposal drafted primarily by Dr Dan Puchniak, ANJeL-in-ASEAN Convenor (NUS):

In autumn 2009, the progressive coalition led by the Democratic Party of Japan (DPJ) achieved a historic victory in the general election and came to power, expelling the Liberal Democratic Party (LDP), which had been in power continuously since its establishment in 1955 (except for a very brief break in the early 1990s). The new DPJ-led coalition intended to make the policy-making process more transparent and more strongly controlled by politicians, as well as to make the policy orientation of the Japanese government more progressive. After three years, the polls showed significant discontent among the public with the DPJ’s achievements, and power reverted to the LDP in the December 2012 general election.

It is timely for legal academics to examine whether, and in which sense, the DPJ-government affected law reform over the last three years. In this context, Nottage and Kozuka will explain how—perhaps, quite unexpectedly—the historic political turnover in Japan (“macro-politics”) has had a limited influence on important reforms that are taking place in the field of Japanese contract law. In contrast, however, the process of contract law reform has been substantially influenced by the politicking of lawyers and professional bureaucrats (“micro-politics”) who have a personal stake in the reform process. Ultimately, based on this experience, Nottage and Kozuka suggest that micro-politics is more important than macro-politics in Japan’s legal reform process.

Matsunaka will continue the discussion of politics and legal reform by analyzing the new round of corporate law reform, which was initially driven by the strong policy agendas of several DPJ members. As the corporate law reform deliberations progressed, however, the debates increasingly became dominated by elite academics and MOJ officials and, ultimately, the reforms now appear to reflect little, if any, of the DPJ’s core values. Matsunaka’s analysis of this “watering-down” of the DPJ’s policy based reforms provides an interesting perspective on Japan’s legal reform process and contributes to the broad literature on the politics of corporate governance law reform.

Kozuka will then extend on Matsunaka’s analysis by examining Japan’s recent reform of its broadcasting regulation, which was one of the most important agendas for the DPJ when it first came to power. Again, Kozuka’s findings suggest that the more extreme policy based positions of the DPJ gradually faded in the process of law reform, with the final result being more technical and modest deregulatory reforms in the new Broadcasting Law of 2010.

Puchniak will conclude the discussion by examining the recent introduction of the business judgment rule into Japanese corporate law. At least based on conventional wisdom, the fact that the business judgment rule—which is of critical importance in corporate law—was introduced into Japanese law purely through judicial precedent (without any mention of it in Japan’s codified/statutory corporate law) is astounding. Puchniak’s analysis of this unanticipated source of law reform in the DPJ era will shine a light on a substantial blind-spot in both the current understanding of Japanese legal reform and the more general comparative corporate law literature.

In sum, these four presentations offer a good opportunity to discuss the relationship between the political process and law reform, policy choice through the judiciary and the determinants of the role of law in a post-industrial society in Asia.

Read more...

Written by Joel Rheuben (University of Tokyo)

After facing more than a year of deadlock in the Diet and a legislative agenda monopolised by earthquake recovery measures and the increase in the consumption tax, the outgoing Democratic Party of Japan (DPJ) Government has left in its wake a mess of unfinished business in a number of legislative areas. One of these areas is public law reform. The DPJ had been elected in 2009 on a platform of change after the long reign of the Liberal Democratic Party (LDP), and had promised a new era of government transparency and accountability. Behind the early pageantry of the “Government Revitalization Unit”, in which ministers publicly grilled senior civil servants over their agencies’ expenditure, the DPJ worked diligently to bring about much-needed change in matters such as local government, the civil service, freedom of information and administrative appeals.

With a more than comfortable majority in the House of Representatives and the passage of several of the more critical recovery measures out of the way, it remains to be seen which, if any, of the DPJ’s public law reforms the presumptive prime minister, Shinzo Abe, will run with. The LDP’s election manifesto calls for “administrative reform”, but is short on detail. However, the tenor of Mr Abe’s previous prime ministership (from September 2006 to September 2007) gives an indication of Mr Abe’s likely priorities.

Read more...

My recent Sydney Law School Research Paper No. 12/84, forthcoming in a special issue 119 (9&10) Hogaku Shimpo (Chuo University) for Professor Satoru Osanai, is an edited and updated collection of postings over 2012 on this 'Japanese Law and the Asia-Pacific' blog (and/or the East Asia Forum blog) dealing with investor-state arbitration (ISA) and other forms of investor-state dispute settlement.

The topic has become particularly controversial for Australia, given its ongoing Free Trade Agreement negotiations with Japan. Japan is also considering joining negotiations underway among Australia and 10 other states (including the US) for an expanded Trans-Pacific Partnership Agreement, and both are also interested in the more recent 'Regional Comprehensive Economic Partnership' (RCEP) initiative (ASEAN+6). Both Japan and Australia have almost always included ISA protections in their investment treaties, but Australia omitted them in investment treaties with the USA and New Zealand, and recently declared that it will no longer accept ISA in future treaties – even with countries with less developed legal systems and economies.

Read more...

Australia is long overdue for statutory intervention in private international law (PIL), so the recent ‘Discussion Paper 1’ (DP) from the federal Attorney-General’s Department (AGD) is very welcome. From a background in comparative and transnational business law, I strongly support legislative reform, particularly for cross-border consumer transactions and/or in relation to international arbitration. This can now draw on a wealth of experience at an international level and from our major (now mostly Asia-Pacific) trading partners. Such reforms will add tangible evidence of the Government's recently declared commitment to 'Australia in the Asian Century'.

Read more...

Guest blog by Paul Davis (Baker & McKenzie, Sydney/Tokyo) - "IMPORT OF US SHALE GAS INTO ASIA: THE EFFECT ON EXISTING LONG-TERM CONTRACTS FOR THE SALE OF LNG"

[A footnoted version of the following note is forthcoming on the Baker & McKenzie website. The firm supports ANJeL's 'Team Australia' law students in the INC negotiation and arbitration moot competition in Tokyo (held over 1-2 December this year), and Mr Davis is a guest lecturer in Sydney Law School's LLM courses in "Global Energy and Resources Law" and "Law and Investment in Asia". The law and practice of long-term contracts is not only of immediate practical significance for bilateral and regional trade and investment (including Australia-Japan FTA negotiations), but also more broadly for contract law reform projects now underway in both Australia and Japan.]

Current Top Concern to Asia's LNG Buyers and Sellers

The main issue exercising the minds of Asia's LNG sellers and buyers is what will happen to their current LNG sale and purchase agreements (SPAs), which are priced based upon the Japan Crude Cocktail (JCC), as cheaper (Henry Hub linked) shale gas imports start to flow into the region from North America.

Buyers will be under pressure to "close the gap." At the same time the sellers are concerned to maintain the prices based on which they made the decision to develop their LNG projects.

SPAs differ, depending upon the LNG SPA model preferred by the seller - in effect the operator of the project. However most SPAs contain two provisions of relevance to the current issue.

Read more...

On 22 October Sky News ‘Late Agenda’ interviewed me and Rick Wallace (Tokyo-based correspondent for ‘The Australian’) following an interview with Michael Woodford, former CEO of Olympus in Japan (click here and then here for 200-MB mp4 video-clips). Corporate governance in Japan is important for Australia, given the countries’ strong trade and investment relationship and recent pressure to finalise a bilateral Free Trade Agreement, as well as from broader regional and theoretical perspectives.

Read more...

[This is the Preface and Table of Contents manuscript for the 2nd edition, published in 2013 by Hein.]

The literature in Western languages on Japanese law, especially in English and German, continues to proliferate – despite, or perhaps because of, Japan’s economic slowdown after its own “asset bubble” burst in 1990. Law reform has been particularly intense and widespread in business law, necessitating this second edition updating for important works published over the last 15 years.

In 1998 Harald Baum and Luke Nottage published the first edition of their Annotated Selective Bibliography of Japanese Business Law in Western Languages, building on a chapter in Baum’s compendium on Japanese business law published in German in 1994. A new version of the latter published in 2011 included a chapter by Baum, Nottage and Markus Thier listing subsequent works on Japanese business law. That chapter provided the core for the updated references in the second edition of the Annotated Selective Bibliography, co-authored also by Joel Rheuben, but this adds many more references. We also regrouped various chapters and introduced new chapters for fields of law such as Legal Education, Environmental Law, Communications and Information Technology, Employee and University Inventions, Consumer Protection, Product Liability, and Medical Law.

The present edition of the Annotated Selective Bibliography further comprehensively updates the annotated introduction to general works related to Japanese law and the economy, including a completely rewritten guide to finding Japanese business law materials via the internet (for a much briefer version in 2009, see here). Below we set out the rest of the Preface & Acknowledgements, along with the Table of Contents. This second edition went to press in August 2012 and will be published by Hein in early 2013. There are also plans for an e-book version that links to journal articles for subscribers to the HeinOnline database.

Read more...

What does “Japan” evoke for you? Fine food, delicate design, pride in a long history and rich culture, powerful bureaucrats, some very big business? But it also has a sophisticated modern legal system, open to outside influences and impacting on other parts of the world – including Thailand, and more recently Cambodia and Vietnam. Just like France, in all these respects! To take the analogy even further: perhaps China is the “Germany of Asia” – now the slightly larger economy, with more focused politics, and a friendly rival for regional leadership.

On 20 August, Sydney Law School (SLS) will hold a student information session on legal practice and educational opportunities in Asia, kindly sponsored this year by “Herbert Smith Freehills”. Offshore units available for SLS course credit include the Kyoto and Tokyo Seminars in Japanese Law, co-taught by Australian- and Japan-based professors and practitioners, every February for Australian, other international and Ritsumeikan University Law School students. I also want to talk briefly about practice opportunities in Japan, based on my personal experience (as a “trainee” with Osaka law firms in the early 90s, while a postgraduate student at Kyoto University) and especially an excellent introduction to “finding legal work in Japan” written a few years ago by a SLS student (“Anon”, still living in Tokyo).

Read more...

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).

Read more...

Mark D West, Lovesick Japan: Sex, Marriage, Romance, Law (Cornell University Press, Ithaca/London, 2011, viii + 259pp, hardcover US$29, e-version $18.44 via http://www.amazon.com/Lovesick-Japan-Sex-Marriage-Romance/dp/0801449472

[Published in 33 Journal of Japanese Law 253-8 (2012), with a shorter version also in 32(2) Japanese Studies 299-301 (2012).]

This is the third book with “sex” in the title that has been written since 2005 by the Nippon Life Professor of Law at the University of Michigan Law School. Although it is beautifully written in a conversational style, opens up some intriguing insights, and reflects very extensive research, this work is probably the least successful of the three. This reviewer, at least, hopes that Mark West will now divert his formidable talents to examining other areas of Japanese law and society, including further research in the field that initially established his career – namely, “Economic Organizations and Corporate Governance in Japan” (Oxford University, 2004, co-edited with Curtis Milhaupt).

West’s book on “Law in Everyday Japan: Sex, Sumo, Suicide, and Statutes” (University of Chicago Press, 2005) actually did not focus much on sex. But it showed convincingly how law has played important roles in the development of the “love hotel” industry, as in many other areas of everyday life in Japan. His book on “Secrets, Sex and Spectacle: The Rules of Scandal in Japan and the United States” (University of Chicago Press, 2005) contained more sex. But this arose as part of detailed analysis of important differences – and some similarities – in the two countries’ societies and legal systems relevant to scandals, including corporate fraud, baseball cheaters and political corruption. By contrast, West’s latest book on “Lovesick Japan” is full of sex – caveat emptor (buyer beware)!

In this book West pursues the argument that “law matters” in Japan, but in unusual as well as more mundane life situations. Indeed, he argues that “Japanese judges, who have significant discretion, play a surprisingly direct role of arbiters of emotions in intimate relationships” (p9). Further, unlike his earlier works, West focuses predominantly on how Japanese judges write and reason about sex, marriage and “love” more generally, in their publically-available judgments covering a broad array of legal and social topics. He argues that a “state-endorsed judicial view” (p9) emerges not just from the way the legally relevant facts (and sometimes seemingly irrelevant facts) are presented, but also from the legal analysis – with the combination often suggesting broad problems: a “lovesick Japan”. Specifically (p8):

Love, for instance, is highly valued in Japan, but in judges’ opinions, it usually appears as a tragic, overwhelming emotion associated with jealousy, suffering, heartache, and death. Other less debilitating emotions and conditions, including “feelings”, “earnestness” and “mutual affection” appear in unexpected areas of the law such as cases of underage sex and adultery. Sex in the opinions presents a choice among (a) private “normal” sex, which is male-dominated, conservative, dispassionate, or nonexistent; (b) commercial sex, which caters to every fetish but is said to lead to rape, murder, and general social depravity; and (c) a hybrid of the two in which courts commodify private sexual relationships. Marriage usually has neither love nor sex; judges raise the ideal of love in marriage and proclaim its importance, but virtually no one in the cases achieves it. Instead, married life is best conceptualized as the fulfillment of a contract.

Read more...

[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).]

Read more...

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.

Read more...

Professor Vivienne Bath and myself are guest editors and authors of two articles for this special issue, the first dedicated the Sydney Law Review to developments in or across Asian legal systems. The issue also includes an article on Indonesian law co-authored by Dr Simon Butt, presently serving as Director of the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS).

The special issue contains the following nine contributions, with full-text PDF versions freely downloadable from the Sydney Law Review webpage:

Introduction: Asian Investment and Finance Law
Vivienne Bath and Luke Nottage

Articles:
Corporate Rescue in Asia - Trends and Challenges
Andrew Godwin
Lessons from Product Safety Regulation for Reforming Consumer Credit Markets in Japan and Beyond?
Luke Nottage and Souichirou Kozuka
Embracing Sharia-Compliant Products through Regulatory Amendment to Achieve Parity of Treatment
Kerrie Sadiq and Ann Black
Between Piety and Prudence: State Syariah and the Regulation of Islamic Banking in Indonesia
Tim Lindsey
Reining in Regional Governments? Local Taxes and Investment in Decentralised Indonesia
Simon Butt and Nicholas Parsons
Foreign Investment, the National Interest and National Security - Foreign Direct Investment in Australia and China
Vivienne Bath
Responding to Industrial Unrest in China: Prospects for Strengthening the Role of Collective Bargaining
Sarah Biddulph
The Influence of the WTO over China’s Intellectual Property Regime
Natalie P Stoianoff

Book Review: The Derivative Action in Asia: A Comparative and Functional Approach [edited by Harald Baum, Dan Puchniak and Michael Ewing-Chow, Cambridge University Press, 2012]
Luke Nottage and Fady Aoun

Vivienne Bath and I also reproduce below the text of our Introduction (omitting footnote references). It outlines and commemorates the long and strong tradition of engagement with Asian legal systems on the part of Sydney Law School, CAPLUS and the Australian Network for Japanese Law (ANJeL).

Read more...

[Updated 18 April, with a shorter version also on the East Asia Forum blog.]

A few years ago I began a research project into how the Japanese government manages its public and private law cases, working with a former LLM student from Kyushu University and experienced Australian government lawyer, Associate Professor Stephen Green (now at Doshisha University Law Faculty in Tokyo). Our paper was published last year in the Asia Pacific Law and Policy Journal. The second half of the paper is also under review for a special issue of the International Journal of the Legal Profession, focusing on the remarkably under-researched field of government lawyering.

On 6 February this year I stopped over in Seoul to visit prosecutors in Korea's Ministry of Justice (MoJ), partly to begin comparing how Korea manages similar litigation. Information kindly provided in interviews and follow-up correspondence reveals considerable similarities, but also some significant differences compared to Japan. The backdrop and issues in Australia regarding government litigation services diverge even further, but there is much scope for mutual learning.

Read more...

About the seminar:

This fourth ANJeL CLE Seminar in Tokyo, aimed especially at Australian practitioners in Japan, as well as Japanese practitioners interested in Australian law and the economy, introduces new Australian developments in labour law and consumer law, including dispute resolution aspects, comparing also some developments in Japanese law and practice. It will be followed by an informal networking opportunity.

To register and view the event flyer please click here.

Read more...

In an article published in the Zeitschrift für Japanisches Recht / Journal of Japanese Law [“Die Haftung für Nuklearschäden nach japanischem Atomrecht – Rechtsprobleme der Reaktorkatastrophe von Fukushima I” (Liability for Nuclear Damages pursuant to Japanese Atomic Law – Legal Problems Arising from the Fukushima I Nuclear Accident) (ZJapanR 31, 2011)] Julius Weitzdörfer, Research Associate with the Japan Unit of the Max Planck Institute for Comparative and International Private Law (and JSPS Visiting Researcher at Kyoto University Law Faculty), examines the legal challenges currently facing the Japanese judiciary, government and economy in the aftermath of the nuclear disaster. The article (in German along with an English abstract) can be downloaded here, and shorter summary by the author is reproduced below (from the MPI website).

Luke Nottage (also now at Kyoto University Law Faculty, as a Visiting Scholar over October-November) then adds a broader perspective on the disasters afflicting Japan since 11 March 2011, based on his presentation at Tohoku University in Sendai over 14-15 October.

Read more...

[Below is an overview of an intriguing book with this self-explanatory title, reviewed by my colleague specialising in public international law, A/Prof Ben Saul; and a former Research Assistant at our Sydney Centre for International Law, Naomi Hart. Their Review was published in [2010] Australian International Law Journal 295-9. The full PDF version, including footnote references, is downloadable here.

My own Review of this book co-authored by Professor Neil Boister (University of Canterbury) and Robert Cryer (University of Birmingham), is forthcoming in [2011] New Yearbook of International Law. That Review is written with my father, Richard Nottage, who in the 1960s undertook post-graduate research into pre-WW2 Sino-Japanese political and economic history using primarily the full sets of Tokyo War Crimes Trial documentation donated to the University of Canterbury (by the New Zealand Judge on the tribunal) and to Oxford University. A shorter Review written by Richard alone, published in (November-December 2010) New Zealand International Review 27-28, is already downloadable here.]

Read more...

[Joel Rheuben, LLB / BA (Hons) Syd, is pursuing postgraduate studies at the University of Tokyo Faculty of Law. We extend our condolences to the victims of the natural disasters and ongoing nuclear power plant emergency in Tohoku.]

On 30 April, the Democratic Party of Japan’s “Reconstruction Vision Team” delivered its preliminary report to Chief Cabinet Secretary Yukio Edano. Its report set out in general terms a range of potential mid- to long-term measures to reinvigorate the local economy and improve food and energy security in Japan’s Tohoku region in the wake of the 3/11 earthquake. Significantly, in addition to proposing options such as the establishment of a special corporate tax-free economic zone, the report urged the reconsideration of the relationship between the national and local governments more generally, including “keeping in sight a future State” for the region.

Read more...

Downloadable here is my review essay, for the Journal of Japanese Law, of a recent 16-chapter monograph on legal education in Asia. The monograph on 'Legal Education in Asia' is a fitting commemoration of the teaching, research and formidable networking capacity of the late Professor Malcolm Smith – a leader in developing Asian and Japanese Law studies in Australia, Canada and world-wide. It should be read by academics, practitioners and policy-makers with an interest in legal education, particularly in the Asia-Pacific region.

Read more...

[Dr Trevor Ryan, Assistant Professor of Law at the University of Canberra, reviews this book by Takao Tanase (Elgar, 2010), edited and translated by Luke Nottage and Leon Wolff. His review will be published in 31 Journal of Japanese Law (2011).]

Community and the Law is a collection of seminal essays written by leading Japanese legal sociologist Takao Tanase. But it is also much more than that. With the able assistance of Nottage and Wolff as translators and editors, Tanase has distilled something of a communitarian manifesto from a vast body of work traversing multiple subjects and methodologies. The book is divided into three substantive parts: ‘a critique of American liberalism’, ‘a normative theory of community and the law’, and ‘a re-evaluation of Japanese modernity’. However, the elements of Tanase’s manifesto emerge only from a thorough and holistic reading of this challenging but rewarding book.

Read more...

This is the title of a project funded by the Australia-Japan Foundation over 2010-11 for myself and Sydney Law School colleagues, Dr Brett Williams and Micah Burch, which will consider the scope for both countries to develop greater common ground in cross-border dispute resolution law and practice, to facilitate bilateral, regional and even multilateral economic integration. Australia and Japan have recently amended their Double-Tax Treaty and are now negotiating a Free Trade Agreement (FTA). Former Prime Ministers Kevin Rudd and Yukio Hatoyama floated the idea of a broader "Asia Pacific Community" or "East Asian Community", not limited to matters conventionally found in FTAs. The project will look at the possibility of adding:

(a) novel inter-state arbitration mechanisms, namely for:
(i) disputes about interpretation of Double Tax Treaties, a process triggered by taxpayer in a state (which must then obtain a decision from arbitrators binding on both states) and now envisaged since the 2005 revisions to the OECD Model Tax Treaty;
(ii) disputes about market access for goods and services (including typically some forms of investment), usually modelled on provisions set out in the 1994 Dispute Settlement Understanding of the World Trade Organization (itself under review, with considerable leadership from Australia);

(b) appropriate mechanisms for disputes involving a broader array of investments, in response to discriminatory or other illegal treatment from the host state, allowing investors to bring arbitration proceedings directly (often now provided in FTAs and bilateral investment treaties or "BITs") instead of via appeals to their home state for inter-state dispute resolution;

(c) provisions or measures to improve commercial arbitration law and practice for the resolution instead of business-to-business disputes, achieved through commitments that might also be entrenched through treaties, but potentially instead through parallel legislation in each state, or through common Rules or agreements among the main Japanese and Australia arbitral institutions).

The project will also involve Professor Tatsuya Nakamura, former ANJeL Research Visitor and General Manager in the Japan Commercial Arbitration Association, and anyone willing to share experiences or views in these three fields (particularly in Australia or Japan) is very welcome to contact me at first instance.

Read more...

This is the title of my third paper in a series of edited and updated selections of my postings to the ‘East Asia Forum’ blog (indicated with a double asterisk in the Table of Contents below) and this partly-overlapping ‘Japanese Law and the Asia-Pacific’ blog. They mainly cover developments from mid-2009 through to mid-2010, with a focus on law and policy in Australia and Japan in a wider regional and sometimes global context. The paper is freely downloadable here.

Half of the postings edited for the paper introduce some new policy and legislative agendas proclaimed by the then Prime Ministers of Australia (Kevin Rudd, in late July 2009) and Japan (Yukio Hatoyama, through the Democratic Party of Japan [DPJ] which he led to a remarkable general election victory in late August 2009). Both had resigned by mid-2010, indicating some of the difficulties involved in implementing ambitious reforms in both countries. All the more so, perhaps, if innovative measures are to be added to both countries’ Free Trade Agreements (FTAs) in order to foster more sustainable socio-economic development in the aftermath of the Global Financial Crisis (GFC).

The remaining postings end by introducing Australia’s regime for international (and domestic) commercial arbitration enacted in mid-2010, centred on a United Nations Model Law – like Japan’s Arbitration Act of 2003. However it sets these enactments in broader context by focusing on legal professionals – lawyers, judges and specialists in Alternative Dispute Resolution (ADR) – as well as aspects of the legal education systems in both countries. Those systems will need to gel better as well for both Australia and Japan to achieve the ‘cultural reform’ needed to generate sustainable critical mass in commercial (and investor-state) arbitration activity.

Read more...

Australia’s long-awaited International Arbitration Amendment Act 2010 (Cth) received Royal Assent on 6 July, after the Senate agreed on 17 June to the Bill introduced to the House of Representatives on 25 November 2009 as revised by the federal Government itself on 17 March 2010. The International Arbitration Act 1974, as thereby amended (‘amended IAA’, at http://www.comlaw.gov.au), is set in broader context by the first book devoted to this important field of dispute resolution (‘DR’) law and practice: Luke Nottage and Richard Garnett (eds) International Arbitration in Australia (Federation Press, Sydney, forthcoming October 2010: see Prelims PDF downloadable here).

This eleven-chapter work adds a Preface from NSW Chief Justice Spigelman, a powerful proponent of arbitration and broader access to justice as well as judicial exchange with Japan. It is partly dedicated to Professor Yasuhei Taniguchi, one of my inspiring former teachers at Kyoto University in the early 1990s and a Distinguished Visitor to Sydney Law School over July-August 2009. He is also renowned as a practitioner of international commercial arbitration (ICA), having served for example as arbitrator in an ICC arbitration in Melbourne, as well as a former Judge on the WTO Appellate Body.

The amended IAA brings new promise for ICA in Australia, and may offer lessons for countries like Japan. But Australia can also learn from Japan, especially the thorough way in which it goes about legislative reform.

Read more...

To qualify as a lawyer (bengoshi) with full rights to give legal advice and represent clients – and also to be appointed as a senior court judge or public prosecutor – candidates must pass the National Legal Examination (shiho shiken), and then be trained at the Legal Research and Training Institute (LRTI). University legal education still takes place primarily at the undergraduate level. Every year, about 45,000 students graduate with a Bachelor of Laws. However, most of them do not become lawyers, instead finding employment in governmental organs or private corporations, because it has been extremely difficult to pass the National Legal Examination. In 2004, while more than 40,000 people took the Examination, less than 1,500 examinees passed. The number of successful examinees is intentionally limited. The number was 500 in 1990, then gradually increased to 1,000 in 2000, and to around 1500 in 2004. It was expected rise to around 3,000 per annum in 2010, as part of a broader program of judicial reforms underway since 2001, but the recent election of a new President for the Japan Federation of Bar Associations now makes this very unlikely.

Another aspect of the agenda advanced by the Judicial Reform Council (JRC) related to the training of prospective legal professionals was the inauguration of 68 new postgraduate “Law Schools” from April 2004. However, although it is easier for their (carefully selected) students to pass a “New Legal Examination” (shin-shiho shiken), it remains one of the most difficult in Japan – with a pass rate of about 30%. The old shiho shiken, which could be attempted without any university degree, has been gradually phased out to allow the new Law Schools to get established, although (as recommended by the JRC in 2001) a small new scheme will be introduced to allow those unable to afford Law School to still qualify to become a bengoshi, prosecutor or Judge.

But what happens after this Examination and when one joins the almost 3,000-strong judiciary in Japan?

Read more...

[Adapted on 10 April for the East Asia Forum blog]

The shift since the 1990s in the self-image of many bengoshi lawyers outlined in my previous posting, underpinned also by the slowly changing nature of their work generally as well as the emergence of corporate law firms, helps explain the quite swift enactment of the 2004 Law to Promote the Use of Out-of-Court Dispute Resolution Procedures (translated here), driven also by a Judicial Reform Council (JRC) recommendation in 2001. After a slow start, the Law also seemed to be gaining some traction in promoting privately-supplied ADR services.

However, Court-annexed mediation and recent improvements in the litigation process itself leave a formidable competitor. And the conservative backlash among bengoshi in electing their new JFBA President is likely to further dampen the emergence of private ADR services and institutions. Especially now, that only seems probable if and when private suppliers develop niche markets like more facilitative (not evaluative) forms of ADR - a characteristic of ADR in Australia that has impressed ANJeL Visiting Professor Tatsuya Nakamura (see his columns in Japanese reproduced here) - and if litigation costs balloon like they have in countries like Australia.

Read more...

Japanese bengoshi lawyers, as the most influential group within the legal profession, stand at a crossroads. Overall, through the overarching Japan Federation of Bar Associations (JFBA), their work and attitudes have become more amenable to collaborating with the judiciary and even public prosecutors in implementing reforms to the litigation system; to increasing the numbers allowed to pass the National Legal Examination as the gateway to careers as a lawyer, judge or prosecutor; and even to allowing Japan's many "quasi-lawyers" to expand their legal practice, as well as more promotion of privately-supplied ADR services. Reforms in all these areas were propelled by the Judicial Reform Council's final recommendations to the Prime Minister in 2001, but they were consistent with the trajectory of bengoshi as a whole. However, the controversial election of a new JFBA President may derail all this, with implications also for related initiatives such as Japan's new postgraduate "Law School" programs inaugurated in 2004.

Read more...

This third edition textbook by University of London Professor Hiroshi Oda continues to fill an important niche in the ever-growing English-language (and even Western-language) literature on Japanese law.

It provides clear, succinct, up-to-date and comprehensive coverage. The effort to cover all major areas of law does mean some trade-off with contemporaneity, but this is largely unavoidable especially now that Japanese law has been changing so quickly and extensively since the mid-1990s. A brief Introduction is followed by parts on:
• The Basis of the System”: chapters on modern legal history, sources of law, administration of justice (including arbitration and ADR), legal profession, and human rights protection – ie the constitution); then
• “The Civil Code – The Cornerstone of Private Law”: general rules, law of obligations and contracts, property law, (only then) tort law, family law and inheritance;
• “Business-related Laws”: corporate law, insolvency law, securities (and financial instruments) law, anti-monopoly law, IP and labour law; and
• “Other Laws”: civil procedure, criminal law and procedure, international relations (eg nationality law, foreign exchange and trade law, transnational disputes).

To read the rest of this Book Review, contact me or see (from mid-2010) the Australian Journal of Asian Law.

Happy New Year of the Tiger!

Registrations are now open for the 2nd ANJeL Australia Japan Business Law Update seminar: Saturday 13 February 2010 2-5.30pm at the Kasumigaseki building of Ernst & Young in Tokyo (http://shinnihon.vo.llnwd.net/o25/image/aboutus/eytax_access_mapE.gif).

Learn about post-GFC financial markets reg and (yes) the amended Australia-Japan double tax treaty. And even get 3 MCLD/PLD credits. Just A$200 – with no GST chargeable! At least some of us will follow up with an informal (PAYG) dinner.

For more details and registration please visit: http://www.usyd.edu.au/news/law/457.html?eventcategoryid=39&eventid=5139

Read more...

Emeritus Professor Peter Drysdale recently presented in Sydney a preview of his now-published consultancy report for Austrade, which urges (p3):

“a paradigm shift in thinking about Australia’s relationship with the Japanese economy. The Japanese market is no longer confined to Japan itself. It is a huge international market generated by the activities of Japanese business and investors, especially via production networks in Asia. It is a market enhanced by the economic cooperation programs of the Japanese government throughout the developing world, particularly in the Asian and Pacific region. And it is a market in which Japanese business now plays an increasingly important role from an Australian base in manufacturing, agriculture and services.”

The Australian Financial Review now confirms that Japan has led China and other Asian investors into Australia over the last year (“What Crisis? Asian Investors rush to our shores”, 24 September 2009). But many probably remain unaware of these facts highlighted by Drysdale’s report (pp 3-4):

“The stock of Japanese investment in Asia amounted to A$ 180 billion out of Japan’s global investment of A$ 772 billion at end-2008. The flow of export and import trade which Japanese business generates in Asia each year was US$ 690 billion in 2008. Procurements through Japanese corporate subsidiaries in Asia amount to A$ 1.2 trillion annually. In addition, Japan spent A$ 11 billion (901 billion yen) in Asia on Overseas Development Assistance programs and procurement through economic cooperation programs. Japanese business has now also established a platform for export to the region from Australia, with diversified investments across food, manufacturing as well as resources, that already delivers A$ 6 billion in Australian sales to Asian markets other than Japan. These are all large new elements in the economic relationship with Japan beyond the A$ 51 billion export trade and A$ 20 billion import trade that Australia already does each year with Japan itself.”

These pervasive economic ties are underpinned by very wide-ranging and stable relations between Australia and Japan at all sorts of levels: governmental, judicial, educational, working holidays, and so on. As pointed out in another recent report “Australia and Japan: Beyond the Mainstream”, by Manuel Panagiotopolous and Andrew Cornell for the Australia Japan Foundation, the GFC has led policy-makers as well as businesspeople to look again more favourably on relationships that combine lower risk with less return, compared to high risk/return ventures.

We can take advantage of these strong and still very profitable Australia-Japan bilateral relationships, as well as the investment and trading links each country (especially Japan) has developed in other parts of Asia particularly since the 1990s, by more actively joining Australian and Japanese partners for ventures throughout Asia. This spreads the risks typically associated with the possibility of higher returns, and also allows each partner to contribute goods or services in which that country has more of a comparative advantage. Thus, for example, Drysdale suggests (p25):

“partnership with Australian services firms in finance, legal services and engineering could be mutual productive. … In FTA talks with Japan the Rudd Government is trying to open the way for professional and financial services firms to set up in Japan, encouraging wider recognition of qualifications and the removal of barriers to obtaining licences in Japan”.

As an example of “legal and consultancy services”, Drysdale mentions that several Australian law firms have long experience in the Asian region, and gives the example of Mallesons Japan. But he concludes that “if we are serious about joining global supply chains and capturing service industry opportunities in Asia then Australian firms need to be there on the ground to capture the business”.

3 comments | Read more...

Following on from my previous report on Mr Akira Kawamura's talk in Sydney about the significant transformations impacting on the legal profession in Japan, East Asia and world-wide, let us briefly consider also some inter-related changes to legal education in our region. ANJeL Judges-in-Residence Program Convenor Stacey Steele is co-editing, with Kathryn Taylor, "Legal Education in East Asia: Globalisation, Change and Contexts" (forthcoming in December from Routledge: ISBN 978-0-415-49433-5) to commemorate the late Professor Mal Smith, who did so much for ANJeL, Australia-Japan relations, and legal education particularly in the Asia-Pacific region. ANJeL Co-director Kent Anderson and Competitions Program Convenor Trevor Ryan have contributed a very useful chapter on "Gatekeepers: A Comparative Critique of Admission to the Legal Profession and Japan’s New Law Schools", which they and Stacey have kindly shared with me in manuscript form.

Hopefully without stealing too much of their thunder, I would like to extend it to locate especially Australian legal education. Below are my opening remarks for a co-authored National Report on Topic I.D "The Role of Practice in Legal Education" for the 18th International Congress of Comparative Law, held four-yearly in different venues - this time from 25 July 2010 in Washington DC. Through the Sydney Centre for International Law, Professor Cheryl Saunders, Justice James Douglas and I have arranged for many other National Reporters on diverse topics selected for the Congress. We can also expect there many National Reports from Japan, although it remains to be seen whether anyone has volunteered one for the same Legal Education topic. There remains considerable uncertainty about Japan's new postgraduate "Law School" programs and their relationship to the National Legal Examination system, as I explained in a paper first presented a conference organised by Stacey in Melbourne where the "gatekeeper" framework was first unveiled.

Read more...

Mr Akira Kawamura is senior partner in Anderson Mori & Tomotsune (AMT), one of Tokyo’s “big four” firms - each of which now has around 400-500 lawyers, compared to around 50 just a decade ago. He is also Vice-President of the International Bar Association (IBA), a federation of law societies from 136 countries comprising over 20,000 members world-wide. Kawamura-sensei is also one of Sydney Law School’s distinguished alumni, obtaining an LLM here in 1979, and he is a founding Advisor to the Australian Network for Japanese Law (ANJeL) as well as a generous donor for the ANJeL Akira Kawamura course prizes in Japanese Law. On 21 September he visited the new Law School building and spoke with staff and students about global legal practice, developments in Japan, and the work of the IBA.

kawamura.jpg

Read more...

Japan has reintroduced a system involving lay participation in serious criminal trials. As discussed in several Australian Network for Japanese Law (ANJeL) events over recent years, this saiban’in system involves randomly selected ‘Lay Judges’ and professional career judges jointly assessing the facts to reach a verdict, as well as deciding on sentences. The model is more Continental European than Anglo-American, but a shared concern is to bring the justice system closer to citizens’ everyday life – a guiding principle in the Judicial Reform Council’s Final Recommendations issued in 2001. Diverse dimensions to greater popular participation throughout Japan’s legal process, including also my study of how the Japanese government organizes its litigation services beyond the criminal justice sphere, will be the subject of ANJeL’s third book from Edward Elgar (forthcoming around December 2010, co-edited with Leon Wolff and Kent Anderson).

Legislation establishing this saiban’in system was enacted in 2004, but implementation was delayed for five years to allow all stakeholders to get used to the idea and many practical implications. (For example, many of the ANJeL Judges-in-Residence sent to Australia by the Supreme Court of Japan have carefully compared how this country manages jury trials, especially in connection with the media.) The enactment illustrates my previous point that the former Liberal Democratic Party (LDP) led coalition had already shifted away from more conservative stances even before its dramatic loss of power in the general election on 30 August this year. Even more ironically, although the first saiban’in trial took place without apparent mishap earlier that month, campaigns by the Democratic Party of Japan (DPJ) and other then-Opposition parties drew on growing concerns among the general public about actually having to serve as Lay Judges. Hopefully, however, Japan's experience will become similar to Australia's - where the general public is quite negative about serving on juries, but individual jurors afterwards report that it was a worthwhile experience. (A similar pattern is also observed in the US.)

3 comments | Read more...

Tezukayama University Professor Michelle Tan (who Commented recently on my previous blog on the new DPJ government and law reform) spoke with me on this topic at the big SOCAP (Society of Consumer Affairs Professionals) conference in Sydney over 25-6 August. Key conference themes were the impact of the GFC and world-wide recession, and the new nation-wide Australian Consumer Law reforms. We emphasised the need for Australia to unify consumer nation-wide by ‘trading up’ not only to best practice from among its states and territories, but also to emerging global standards. Our presentation compared developments in consumer policy/administration generally, product liability and safety, consumer credit and unfair contract terms, collective redress and consumer ADR. (Powerpoints and a related Working Paper are here, drawing on my various Submissions to aspects of Australia's current consumer law reform program.)

1 comments | Read more...

Mainstream Australian media provided distressingly meager coverage of Japan’s exciting general election for the more powerful lower House of Representatives last Sunday, which saw a remarkable about-face. The centrist Democratic Party of Japan (DPJ) went from 115 to 308 seats, with allies SDP (the small leftover of the once-powerful Social Democratic Party) and the New Party Nippon taking another 7 and 3 seats respectively. Overall, these and other former Opposition parties took 340 seats, whereas the conservative ruling coalition suffered a massive defeat. The Liberal Democratic Party (LDP) dropped to 119 seats, from 300 before the election (and 296 in 2005, the previous election called by Junichiro Kozumi who then retired as Prime Minister). The Komeito dropped from 31 to 21 seats, meaning that the former ruling coalition now only has 140 seats. In short, the tables have turned almost completely since 2005, in a country (in)famous for its aversion to abrupt changes in direction.

This blog posting is the first of several thinking through this result and some implications for policy and law reform in Japan.

7 comments | Read more...

This is the grand title of a modest Sydney Law School Research Paper (No 09/71) updating and editing another collection of my blog postings both here and on the East Asia Forum. Freely downloadable via http://ssrn.com/abstract=1446523, it is based mainly on developments from the end of 2008 through to mid-2009.

Many topics are important not only within Australia and Japan, but also potentially for bilateral relations (for example, as novel dimensions to the FTA or 'Economic Partnership Agreement' already under negotiation between these two countries). Several topics (for example, the state of economics as a discipline after the GFC, neo-communitarian perspectives on comparative law and society, the legacy of the post-War Occupation of Japan) also address more broadly how we should (re)conceptualise law, economics and public policy particularly in the Asia-Pacific context.

Read more...

Compared to Australian and New Zealand legislation, Japan’s Consumer Contracts Act 2000 has quite narrow restrictions on the bargaining process leading up to the conclusion of contracts between consumers and commercial suppliers (Luke Nottage ‘Nihon-Nyujirando Shohishakeiyakuho [Consumer Contract Law in Japan and New Zealand]’ 1620 Toki no Horei 4-5, June 2000). But it adds a ‘general clause’ regulating unfair contract terms, voiding those that ‘impair the interests of consumers unilaterally against the fundamental principle’ of good faith under Civil Code Art 1(2), as well as targeting some specific types of terms. The Consumer Contracts Act also extends to all types of contracts (except employment contracts: Art 48), and defines ‘consumer’ broadly as any individual not contracting for a business purpose (Art 2).

Read more...

A recent issue of the Japan Commercial Arbitration Association (JCAA) Newsletter is largely devoted to these topics (No 22, July 2009). Sydney Law School and ANJeL are privileged to host not only one of Japan’s doyens in ICA (and other cross-border dispute resolution, especially WTO procedures), Professor Yasuhei Taniguchi (over July-August 2009). We also welcome (over September – March 2010) Kokushikan University Professor Tatsuya Nakamura, a leader of Japan’s ‘new generation’ of arbitration specialists who heads JCAA’s Arbitration Department.

They have already got me thinking further about Arb-Med (arbitrators encouraging parties to settle their dispute), in the context also of interesting new JCAA Rules focused more specifically on Mediation. Both developments are important for Australia, presently reviewing its legislative and institutional framework for international commercial arbitration (ICA), as well as for many other Asia-Pacific countries intensely interested nowadays in efficient mechanisms to resolve cross-border disputes.

Read more...

Australia and Japan face a remarkably similar challenge. Few international arbitrations have their seat in either country, despite various initiatives undertaken over the last decade or two. Both Australia and Japan probably need to adapt quite radical measures to overcome remaining barriers to attracting international arbitration activity to their respective shores. This shared problem is serious not just because their arbitrators, lawyers, institutions or local economies miss out on business – after all, at least the arbitrators and lawyers can still earn fees by deploying their skills in arbitrations further abroad. The problem is serious also because low levels of international arbitration activity in both countries limit the potential to develop domestic arbitration, ADR more generally, and indeed effective civil procedure.

Despite the shared challenge, however, quite radical solutions for each country may differ somewhat. Expedited arbitration procedures may be a particular selling point for Australia, but not Japan. Caucusing in Arb-Med may work in Japan, but not Australia. And Japan may have more scope than Australia to develop international arbitration through a ‘whole-of-government’ approach that promotes investment arbitration provisions, for example, even in treaties with other developed countries.

Read more...

This is the title of our translated and edited collection of essays written in Japanese over the last two decades by a leading legal sociologist in East Asia and world-wide, Professor Takao Tanase (in press, forthcoming January 2010 from Edward Elgar). Leon Wolff and I hope to present an outline at the Inaugural East Asian Law and Society Conference to be held on 5-6 February 2010 at the University of Hong Kong, supported by a Collaborative Research Network within the (originally US-based) Law and Society Association.

Tanase’s empirically-based critique of legal legalism is important not only for the United States, which tends to represent an extreme case. It also helps in assessing developments in East Asian countries increasingly exposed or attracted to American views of how law does and should relate to society, including Japan - but also perhaps China (see eg Tanase, 27(3) Mich J Int’l Law, 2006). Tanase’s neo-communitarian critique also presents a challenge to liberalism more generally, making his reassessment particularly timely for two reasons. First, the Global Financial Crisis was prompted partly by a particular liberal vision of how markets do or should operate. Secondly, countries like Japan have now experienced a decade of reform discussions and initiatives allegedly aimed at “Americanising” the judicial system and the legal profession.

Read more...

At the JSAA-ICJLE conference held at UNSW over 13-16 July 2009, I presented a pathbreaking comparative introduction into how the Japanese government delivers legal services, especially the central government in its high volume of litigated cases. (I also contributed to a panel discussion on ""Bridging the Gap between Japanese Language and Japanese Legal Studies" - click here for abstracts and Powerpoints.)

JSAApanel.jpg

This presentation was based on a draft paper co-authored with Ritsumeikan University Associate Professor Stephen Green, a former lawyer for the Australian government and joint ANJeL-in-Japan Program Convenor, and Meiji University political scientist Professor Shinichi Nishikawa. We are bringing together a detailed manuscript for a law journal, as well as a shorter version for the next proposed book by Wolff, Nottage & Anderson (eds) Who Judges Japanese Law? Popular Participation in Japan’s Legal Process. Our analysis begins to fill a significant gap in the literature comparing Japan’s legal profession. This lacuna is all the more surprising, given Japan’s efforts at comprehensive reform of its judicial system underway since 2001.

Read more...

Responding partly to the May judgment of the German Constitutional Court upholding a ban on hyphenated triple-barrelled surnames, Lisa Pryor suggests we adopt 'the Spanish solution' ('Repetitive name injury', Sydney Morning Herald, 6-7 June, News Review p7). That is, children get two surnames, one from each parent. She also suggests we ditch middle names. But middle names already can be used to good effect to address her concerns, especially in the Australia-Japan context.

On the other hand, there remains a problem with Japan's Nationality Law, despite its recent amendments, that might catch out children of Australian and Japanese parents.

Read more...

[English version for: Baum, Nottage et al’s Bibliography chapter in Harald Baum (ed) Handbuch des japanischen Handels- und Wirtschaftsrechts [Handbook of Japanese Commercial and Economic Law] (Carl Heymann, Cologne, forthcoming 2009)]

When Harald Baum and I translated and expanded the original Bibliography chapter in the first edition of this book, and published it as Japanese Business Law in Western Languages: An Annotated Selective Bibliography (Fred B Rothman, 1998), we added a new section introducing the online resources that were already increasingly available for free over the Internet. We also created a webpage - Japanese Law Links, now archived at Sydney Law School - that updated and expanded our introductions to resources made public by various types of organisations.

After another decade, following further exponential growth in the Internet as well as steady increases in interest and writing about Japanese law world-wide, it is now both easier and harder to offer a guide to such online resources. It is harder to be as comprehensive in reviewing them, because of their sheer volume, and there is the added difficulty of selecting the more authoritative and useful resources. However, our task is also easier in that there are now several well-established and reputable websites. They often contain (sometimes annotated) links to other resources, and often original material, in Western languages – especially in English, which is therefore our main focus in this chapter. It is also easier because of higher-quality Internet search engines, such as Google, although no search engine can ever be perfect – as we show next.

1 comments | Read more...

All my blogs over July-October 2008, posted originally with full hyperlinks at http://eastasiaforum.org/author/lukenottage/], have been edited and updated as:

Nottage, Luke R., 'Economics, Politics, Public Policy and Law in Japan, Australasia and the Pacific: Corporate Governance, Financial Crisis, and Consumer Product Safety in 2008' (November 3, 2008) Sydney Law School Research Paper No. 08/134, Available at SSRN: http://ssrn.com/abstract=1295064 (and forthcoming, early 2009, in Ritsumeikan Law Review)

Some of the individual topics focused more directly on Japanese Law, asterisked below, are also available on this USydney blog:

* 1. Taking the Australia-Japan FTA negotiations to new levels
* 2. Whaling: What can law add to science, economics, ethics and politics?
3. Australia also should ‘Rail at Australian’s Tabloid Trash’ about Japan
* 4. Consumer over-indebtedness in Japan, Australia and the US
* 5. Dodgy foods and Chinese dumplings in Japan
* 6. FDI and corporate governance in Japan
* 7. Investor-state arbitration for Indonesia, Australia and Japan
8. Rivals: China, India and Japan – economic, not Olympic?
* 9. The politics of Japan’s new Takeovers Guidelines
* 10. Tables turned in Japanese and US financial markets
* 11. Lessons from Japan for the US financial crisis
* 12. The financial crisis - and loansharks in Japan and NZ
* 13. Consequences of melamine-laced milk for China, NZ, Japan and beyond
14. Political dynasties in Japan, the US, Australia … but not NZ?
* 15. A New Consumer Agency for Japan?

1 comments | Read more...

About the Blog

Japanese Law in Asia-Pacific Socio-Economic Context
More