I welcome this Inquiry and the opportunity to make a public Submission on a topic that has been addressed now several times by the Australian Parliament. As an expert in international business law, I have made several Submissions to other inquiries related to Australia’s international affairs, including Free Trade Agreements (FTAs) and investment treaties, mostly recently giving evidence to this Senate Committee’s Inquiry into The Trade and Foreign Investment (Protecting the Public Interest) Bill 2014 (the “Anti-ISDS Bill”). In that evidence I remarked that there could be improvements in how Australia approaches FTA negotiations. Due to time and space constraints I make three specific suggestions regarding (a) treaty negotiation process and (b) treaty implementation and review, since both stages are encompassed by this Inquiry’s Terms of Reference.
Public policy and politics
As part of our joint ARC-funded research project on investment treaty dispute resolution, also involving Shiro Armstrong (ANU) and Leon Trakman (UNSW), Jurgen Kurtz and I have completed a note on Australia's recent policy and political debate over investor-state arbitration, which ultimately was not provided for in the Australia-Japan FTA signed last year (as explained here).
The complex and ongoing saga in Australia may also impact on pending negotiations for an expanded Trans-Pacific Partnership Agreement and (ASEAN+6) Regional Comprehensive Economic Partnership FTA, each of which involves Japan as well as Australia.
The second stage conference for the book project critically comparing and assessing "Independent Directors in Asia" is hosted by co-editor A/Prof Dan Puchniak at the National University of Singapore Law Faculty over 26-27 February 2015. In addition to comprehensive reports from different countries in the region, including one co-authored by myself and Sydney Law School colleague Fady Aoun regarding Australia), the project will include a chapter comparing significant case studies from various jurisdictions, based on short (1000-word) contributions from experts in various jurisdictions. Below is the (unfootnoted) text of Mr Aoun's contribution on a very significant corporate collapse in Australia in 2001.
My public lecture on this topic, bringing together two research fields of contemporary public interest, was presented on 24 September 2014 as part of Sydney Law School's Distinguished Speakers Program.
The session was kindly introduced by my colleague Prof Chester Brown, and ended with a commentary by NUS Asst Prof Jean Ho who kindly arrived straight from Sydney airport after her flight from Singapore.
The audio file of my presentation and Chester's introduction are available via Sydney Law School's podcast channel (specifically here), my Powerpoint slides are here (as a PDF), and a related short paper is here. Below is the abstract (with further hyperlinked references available here) and speaker/commentator bios.
Below is the manuscript version of our Preface to Leon Wolff, Luke Nottage and Kent Anderson (eds) Who Rules Japan? Popular Participation in the Japanese Legal Process (forthcoming in April 2015 from Edward Elgar), comprising:
1. Introduction: Who Rules Japan?
Leon Wolff, Luke Nottage and Kent Anderson
2. Judging Japan’s New Criminal Trials: Early Returns from 2009
David T. Johnson and Satoru Shinomiya
3. Popular Participation in Labour Law: The New Labour Dispute Resolution Tribunal
Takashi Araki and Leon Wolff
4. In Defence of Japan: Government Lawyers and Judicial System Reforms
Stephen Green & Luke Nottage
5. Administering Welfare in an Ageing Society
6. Reforming Japanese Corrections: Catalysts and Conundrums
7. Competition Law in Japan: The Rise of Private Enforcement by Litigious Reformers
8. When Japanese Law Goes Pop
This posting is based mainly on a Note that critically reviews The Trade and Foreign Investment (Protecting the Public Interest) Bill 2014, drawing on my written Submission and subsequent Senate Hearings. The fully footnoted version will appear in the next issue of the CIArb's "Australian ADR Reporter" or successor Journal. Readers may also be interested in my subsequent posting to the Kluwer Arbitration Blog, followed by the Senate Committee Report (27 August 2014) which agreed that the anti-ISDS Bill should not be enacted. Significant extracts from that Report will also be added and analysed in my draft paper at http://ssrn.com/abstract=2483610, with an introduction incorporating a version of the Note below.
This work is part of an Australian Research Council Discovery Project (DP140102526) funded over 2014-2016 jointly with Dr Shiro Armstrong and Professors Jurgen Kurtz and Leon Trakman, which was acknowledged in the Senate Bill hearings and final Report. The topic of ISDS will also be discussed at the Law Council of Australia’s 2014 International Trade Law Symposium, 18-19 September, Canberra, and will be the focus of an ABC National Radio broadcast on 14 and 16 September (with transcripts here).
Australia and Japan finally concluded a bilateral Free Trade Agreement on 7 April 2014. Some Australian media outlets had prior inklings that negotiations had achieved significant breakthroughs, especially for agricultural market access into Japan, but a frequent assumption was that Australia must have “given up” something major in return. Concerns were expressed that this included measures favouring Japanese investors into Australia, especially protections from investor-state dispute settlement (ISDS, especially arbitration) provisions [listen to my radio interview here]. These provide an extra avenue for foreign investors to enforce the substantive treaty rights limiting a host state’s capacity to illegally interfere with foreign investments (eg through expropriation). They add to the (more politicised) inter-state arbitration procedure invariably included in investment treaties, as well as any rights under domestic law available through the host state’s court system – particularly problematic in developing countries, such as Indonesia.
ISDS provisions had been added to the Korea-Australia FTA concluded in December 2013 by the Abbott Government, which also declared that it was reverting to a case-by-case approach to ISDS. This contrasted with the position taken by the 2011 Gillard Government Trade Policy Statement, which had reversed Australia’s longstanding treaty practice by declaring that it would not agree to any forms of ISDS in future treaties – even with developing countries. The 2012 Malaysia-Australia FTA omitted ISDS, although that was meaningless in practice as ISDS remains available to enforce similar substantive rights under the 2009 ASEAN-Australia-NZ FTA. Curiously, however, the new Australia-Japan FTA ultimately omitted ISDS provisions as well. Why is this, and what are the broader implications?
I am pleased to provide this Submission on The Trade and Foreign Investment (Protecting the Public Interest) Bill 2014. I specialise in international and comparative commercial and consumer law, and have produced extensive academic publications and media commentary on treaty-based investor-state dispute settlement (ISDS). My interest is in the policy and legal issues associated with this system; I have never provided consultancy or other services in ISDS proceedings.
The Bill simply provides, in clause 3, that:
“The Commonwealth must not, on or after the commencement of this Act, enter into an agreement (however described) with one or more foreign countries that includes an investor-state dispute settlement provision.”
The Explanatory Memorandum provides no guidance as to the background to this proposal, or its pros and cons. However it seems to be aimed at reinstating the policy shift announced by the April 2011 “Gillard Government Trade Policy Statement”. That is no longer found on Australian government websites and is inconsistent with the present Government’s policy on ISDS, which allows for such provisions on a case-by-case basis (as evidenced by the recent Korea-Australia FTA).
The Bill, like the previous Trade Policy Statement in this respect, may be well-intentioned, but it is premature and misguided. Treaty-based ISDS is not a perfect system, but it can be improved in other ways – mainly by carefully negotiating and drafting bilateral investment treaties (BITs) and free trade agreements (FTAs). This may also have the long-term benefit of generating a well-balanced new investment treaty at the multilateral level, which is presently missing and unlikely otherwise to eventuate.
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 firstname.lastname@example.org; 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.
Australia’s Coalition Government, dominated by the Liberal Party and led by Prime Minister Tony Abbott, recently completed a rocky first 100 days in power. Diplomatic rows with China and Indonesia are only part of the story. The Government stands accused, for example, of sending ‘conflicting messages’ to the business sector. At the Business Council of Australia’s 30th anniversary dinner on 4 December, Abbott reiterated his election-night declaration that Australia was ‘once more open for business’. Yet five days earlier, his Treasurer had taken the rare step of blocking a major foreign direct investment (FDI) – a $3.4 billion bid by US firm ADM for GrainCorp.
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.
Written by Joel Rheuben (LLM candidate UTokyo, LLB/BA (Hons) Syd, Solicitor (NSW))
The 21 July 2013 election for the House of Councillors, the upper house of Japan’s Diet, has reversed the status quo of the past several years by providing the governing parties with a majority in both houses. As Tobias Harris rightly points out, possibly pre-prepared descriptions of the victory as a “landslide” fall wide of the mark. Prime Minister Shinzo Abe’s Liberal Democratic Party (LDP) did not achieve a majority in its own right, and will continue to be dependent on the support of its coalition partner, Komeito. The majority also falls well short of the two-thirds that would have allowed Mr Abe to more easily realise his cherished goal of initiating a referendum for constitutional amendment. Nevertheless, this election result does have some constitutional and practical significance.
Catastrophic events are increasingly in the public eye, fuelling a burgeoning but complex field of interdisciplinary research and policy-making worldwide. Recent devastating natural disasters have included the Indian Ocean Tsunami in 2004, Hurricane Katrina in the United States (US) in 2005, Cyclone Nargis in Burma (Myanmar) and the Sichuan Earthquake in 2008. Developed economies have not been spared, as shown by the Christchurch earthquake in New Zealand and Australia’s widespread floods in Queensland in 2011. In particular, the disasters that wreaked havoc from 11 March 2011 in the north-east region of Japan have highlighted the significance and challenges of disaster prevention and management.
Based on the international conference held at Sydney Law School in March 2012, which has also generated a recent mini-issue (No 34) of the Journal of Japanese Law, A/Prof Simon Butt, Dr Hitoshi Nasu and I have co-edited "Asia-Pacific Disaster Management: Comparative and Socio-Legal Perspectives" (Springer, forthcoming November 2013). A manuscript version of our extensive introductory chapter, freely downloadable here, outlines:
(i) what can be encompassed by the terms "disasters" and "disaster management";
(ii) contributions to "disaster studies" from various social sciences as well as domestic and international law perspectives; and
(iii) lessons that can be learned from socio-legal perspectives on recent catastrophes in Asia-Pacific countries, including possibilities for regional and international cooperation in disaster mitigation, relief and recovery.
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.
Political Change Versus Law Reform Continuity: Japanese Law After Three Years of Enthusiasm and Disillusionment
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.
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.
Negotiating and Applying Investor-State Arbitration Provisions in Free Trade Agreements and Investment Treaties: Australia, Japan and the Asia-Pacific
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.
Abandoning all Investor-State Dispute Settlement Mechanisms Also Not Supported by the Facts (updated 17 August)
I am glad the High Court of Australia rejected today the argument by major tobacco companies that Australia’s plain packaging legislation is an unconstitutional “acquisition” of their rights. I dislike those companies’ products, their marketing and their litigation strategies, and I support the plain packaging legislation. I’ve also made numerous submissions to the Australian government since 2005 seeking to improve safety regulation for general consumer goods – partially achieved in the 2010 “Australian Consumer Law”.
But I hope that the ongoing arbitration claim of “expropriation”, initiated by Philip Morris Asia under the 1993 Hong Kong – Australia bilateral investment treaty, does not feed into blanket rejection of any forms of investor-state dispute settlement (ISDS) in investment treaties. Although that system has flaws, it also has benefits, and there is ample scope to draft treaties to provide clear and appropriate mechanisms to balancing private and public interests. With others familiar with international investment law, I provide further examples of the most promising substantive and procedural law reforms in an Open Letter dated 28 July 2012, in response to a recent OECD Public Consultation on ISDS.
My comment will therefore address points made recently on The Conversation blog by Dr Kyla Tienhaara, who remains completely opposed to any form of ISDS. In fact, she urges the Gillard Government to try to excise ISDS from all Australia's existing FTAs and investment treaties (dating back to 1988), in addition to eschewing them for future treaties – as the Government seems to be attempting, pursuant to its policy shift on ISDS announced in the 2011 Trade Policy Statement (TPS). An alternative is for the Government to approach Hong Kong authorities to seek agreement on amending the 1993 treaty to suspend PMA’s pending claim. More generally, Australia should consider including ISDS provisions in future treaties but expressly reserve its right to agree with the treaty partner to suspend particular types of claims, for example regarding public health issues. This compromise approach is already essentially found in investment treaty practice where the claim involves allegations of “expropriatory taxation”.
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
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.
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.
Like so many in Australia and worldwide, we remember sadly today over 19,000 confirmed dead or still missing from Japan’s triple disasters a year ago. Our thoughts and prayers also go out to the many more who collectively have lost their lives from natural disasters in other parts of the Asia-Pacific – including the 2004 tsunami in Indonesia and other countries facing the Indian Ocean, the 2008 earthquake in Sichuan, the Christchurch earthquake and the Queensland floods – just over a year ago, too.
ANJeL Anniversary Conference (Asia-Pacific Disaster Prevention and Management): Opening Remarks (for 1 March)
On behalf of the University of Sydney, please let me welcome you all to this international conference, on ‘Socio-legal norms in preventing and managing disasters in Japan: Asia-Pacific and interdisciplinary perspectives’, by acknowledging the many people and organizations that have made it possible. I thank especially our many speakers, session chairs and other participants here today – including Consul-General Kohara (who will soon add a few words to open the conference) and several others who will be joining us later (by Skype from Japan and the US, as well as the Federal Minister for Emergency Services and Adelaide University’s new Pro Vice-Chancellor (Int’l) Professor Kent Anderson, who will give closing speeches tomorrow).
I also gratefully acknowledge our main sponsor, the Japan Foundation Sydney, which last year requested applications for joint research events on this important topic; and the other participating institutions – the Law Faculty of Tohoku University (one of USydney’s longstanding partners in Japan) and various USydney-related organisations that have come together to provide matching funding: the Law School and its Centre for Asian and Pacific Law (CAPLUS), the Australian Network for Japanese Law (ANJeL, centred on the Law Schools at USydney, ANU and Bond University), the new China Studies Centre, the Department of Japanese Studies, and the Office of the Deputy Vice-Chancellor (Int’l).
May I also single out our fine administrative support staff: Dale Nouwens (Law School Events Coordinator) and Melanie Trezise (ANJeL Executive Coordinator). I truly appreciate their help, especially as I will need to step outside this conference occasionally over the next few days. As the relevant Associate Dean, I also need to keep an eye on the Orientation Program for new International Students in the Law School, which will be taking place in parallel in the lecture theatre across the corridor.
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.
A second set of presentation titles, abstracts and (links to) bios for the conference on “Socio-legal Norms in Preventing and Managing Disasters in Japan: Asia-Pacific and Interdisciplinary Perspectives” is now available below. Those of  Luke Nottage (Sydney Law School) and  Julius Weitzdoerfer (MPI Hamburg), further analysing Japan’s regulatory framework and responses to the “3-11” disasters from a socio-legal perspective, have already been uploaded on this blog here. Postings related to the presentation by Kent Anderson (ANU/Adelaide), on the demographics of the disasters and some subsequent surprising continuities, can be found on the (highly recommended) East Asia Forum blog.
The conference registration webpage and PDF flyer are also now available here. There are various discounts (eg half price for ‘early-birds’, ANJeL and AJS-NSW members, full-time academics and students; free for staff of the sponsoring/participating organisations) and the final session is gratis and open to the public. There are also links to the websites of the Japan Red Cross and Consulate-General of Japan, which are welcoming donations for the massive and ongoing disaster relief in East Japan. Please spread the word among your friends and colleagues!
Anniversary Conference, 1-2 March 2012: "Socio-legal Norms in Preventing and Managing Disasters in Japan: Asia-Pacific and Interdisciplinary Perspectives"
The "3-11 triple disasters" that afflicted Japan on 11 March 2011 have highlighted broader regulatory issues facing countries particularly in the Asia-Pacific region, including Japan's FTA negotiation program. A few months after "3-11", the Japan Foundation established a special grant program calling for collaborative research conferences on disaster prevention and management - seeking applications by end-September, with decisions to be reached by end-October and conferences to be concluded by March 2012. An application by a consortium led by the University of Sydney Law School was successful, allowing a major international conference to take place in the new Sydney Law School premises over Friday 1 March and Saturday 2 March 2012. Other sponsors of this event are the University's Japanese Studies Department and the new China Studies Centre, the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS), the Australian Network for Japanese Law (ANJeL), and the Law Faculty of Tohoku University (one of the University of Sydney's longstanding partner institutions).
The conference will commemorate the first anniversary of the 3-11 disasters, and also represents ANJeL's tenth international conference on diverse aspects of Japanese Law. It will examine regulatory issues from a variety of social science perspectives, focusing on Japan but comparing Australia (of course, especially in the wake of January's devastating floods in Queensland), New Zealand (especially issues highlighted by the Christchurch earthquake), Indonesia (the Aceh tsunami), China and the USA (especially earthquakes and nuclear power issues).
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.
[A version of this posting also appeared on the The Conversation blog (28 July 2011) and then the East Asia Forum blog (30 July 2011). The former is 'an independent source of information, analysis and commentary from the university and research sector' involving 'content support' from the Go8, including the University of Sydney.]
Prime Minister Julia Gillard was one of the first among world leaders to visit Japan, over 20-23 April, after the nation was stricken on 3 March by the ‘earthquake-tsunami-radiation triple disaster’. But the Australian government was tactful and realistic in not placing high priority on progressing bilateral Free Trade Agreement (FTA) negotiations. Talks had resumed in Tokyo over 7-10 February 2011 after stalling for almost a year, but a lack of progress - particularly over agricultural market access - had then prompted respective Trade Ministers to call for a high-level political summit to regain momentum. The ‘3-11’ disaster generated more urgent priorities for the Japanese government. Indeed, reversing a commitment to decide this question by end-June, in May the Kan administration announced it would defer any decision about whether to join with the nine nations (including Australia) now negotiating an expanded Trans-Pacific Partnership (TPP) agreement.
Nonetheless, Japan has some significant incentives to resume FTA negotiations with Australia in the wake of 3-11, although the road ahead still looks rocky.
Guest Blog - "Tax Treaty Arbitration: The Next Frontier in Asia-Pacific Commercial Dispute Resolution?"
[This guest blog by Micah Burch, Senior Lecturer at Sydney Law School, draws on our joint research for the 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. We have subsequently co-authored a related paper entitled "Novel Treaty-Based Approaches to Resolving International Investment and Tax Disputes in the Asia-Pacific Region" (October 4, 2011) Sydney Law School Research Paper No. 11/66, available here.]
Much was made (in tax treaty circles, at least) three years ago when, after decades of mounting discussion, the Organisation for Economic Co-operation and Development (OECD) included in its model tax treaty a provision requiring arbitration. The controversial provision (Article 25(5) of the OECD Model Tax Convention on Income and on Capital (2003)) takes the substantial step of requiring states to arbitrate tax disputes arising under the treaty if they remain unresolved after two years of negotiation between the two competent authorities. While arbitration is a generally accepted facet of international commercial dispute resolution worldwide, including now throughout Asia, dispute resolution under bilateral tax treaties has been relatively undeveloped. But there are now signs of change.
[Updated 3 August 2011]
Justice Oliver Wendell Holmes famously remarked in Northern Securities Co v United States 193 US 197 (1904) that:
“Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance... but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment”.
We might take this reasoning a step further: big cases make or entrench bad policy. A contemporary example is the request for arbitration (in Singapore) initiated on 27 June by tobacco giant Philip Morris Asia (PM) against Australia, pursuant to the 1993 “Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments”. PM seems to be alleging that proposed legislation mandating plain packaging of cigarettes amounts to “expropriation” of its trademarks (Art 6) and possibly a violation of “fair and equitable treatment” obligations (Art 2(2)).
The Rise and Possible Fall of Investor-State Arbitration in Asia: A Skeptic’s View of Australia’s “Gillard Government Trade Policy Statement"
Downloadable here is my draft paper on this topic for various forthcoming events, beginning with a 3 August seminar hosted by Sydney Law School on "Australia's New Policy on Investor-State Dispute Settlement".
The paper draws on research for the 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.
Treaty-based investor-state arbitration (ISA) has gradually become a more established part of the legal landscape in the Asian region. But this development is threatened by the 'Gillard Government Trade Policy Statement' announced in April 2011.
[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  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  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.]
Guest blog: Japan’s regions - could the Tohoku Earthquake lead to local government reform? by Joel Rheuben
[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.
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.
Guest blog: "Community and the Law: a critical reassessment of American liberalism and Japanese modernity"
[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.
Guest Blog - Enhancing Transparency and Earlier Resolution of Trade Disputes: Australia, Japan and the WTO
[This blog by my colleague Dr Brett Williams is based on his research for our 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.]
As part of this project on possible dispute settlement provisions that could be incorporated into an Australia Japan Free Trade Agreement, Dr Brett Williams is working on papers suggesting two innovations that could be incorporated into the provisions for inter-state dispute resolution regarding alleged violations of market access commitments. Both of these innovations would enhance the transparency of the issues at stake in the potential dispute, and potentially promote earlier and more cost-effective dispute resolution.
One important further aspect of both of these possible innovations would be that they would be capable of being incorporated into the WTO dispute settlement procedure. Both Australia and Japan have long traditions of support for the multilateral trading system and both have a keen interest in being active players in enhancing and improving the system. Therefore, in suggesting these innovations for possible incorporation into an Australia Japan FTA, Dr Williams also considers whether Australia and Japan could use the FTA as a way of trialling some procedures which could later be the subject of a joint proposal by Japan and Australia to amend the WTO dispute settlement procedure. Neither of the proposed innovations are particularly contentious in their concept but there could be some contention about the practical aspects of implementing them.
[This is based on research for the 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. An edited version was published on Australia Day by the East Asia Forum blog.]
My Sydney Law School colleague Dr Tim Stephens convincingly criticises the Sydney Morning Herald and others recently for over-sensationalising Australia’s alleged “Secret Dealing on Whale Hunts”, in reporting drawing on documents released by WikiLeaks. He also analyses reports indicating some opposition with the Australian government about the proceedings it has now initiated against Japan before the International Court of Justice (ICJ). A lively debate has emerged on the ABC’s website in response to Dr Stephens’ article entitled “A Whale of a Story”, with many more excellent points made on both sides of the whaling debate. Here is my own two yen's worth.
Good for the Goose, Not Good for the Gander? Australian versus Japanese Approaches Towards Investor-State Arbitration
[This is based on research for the 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. An edited and updated version is also on the East Asia Forum.]
The Productivity Commission (PC) released on 16 July a Draft Report for its Review of Bilateral and Regional Trade Agreements, commissioned by the Assistant Treasurer to reconsider the Australian Government’s policy in negotiating Free Trade Agreements (FTAs). It acknowledges the inefficiencies of preferential agreements compared to multilateral approaches. However, given the persistent impasse in WTO negotiations, the Report pragmatically suggests various means to maximise benefits in the short-term, which may also lead to longer-term multilateral solutions. Unfortunately, that ideal is unlikely to be achieved – risking perverse implications throughout the Asia-Pacific, where Australia has concentrated its FTA activity – if the PC’s Final Report ends up including all these suggestions in its Draft Recommendation 5:
1. “Where the legal systems of partner countries are relatively underdeveloped, it may be appropriate to refer cases to third party dispute settlement mechanisms.
2. However, such process should not afford foreign investors in Australia or partner countries with legal protections not available to residents.
3. Investor-state dispute settlement procedures should be subject to regular review to take into account changing international best practice and the evolving legal systems in partner countries.”
As explained in my Submission to the PC (reproduced here), I have no great difficulty with the last point, although I suggest that one way to achieve that goal would be for Australia to develop and update a Model Bilateral Investment Treaty (BIT). I have much more difficulty with the PC’s second recommendation, but I focus now on problems with the first as it is particularly relevant to Australia’s policy position in regard to the Asia-Pacific, and especially now Japan.
New Legislative Agendas, Legal Professionals and Dispute Resolution in Australia and Japan: 2009-2010
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.
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.
Imagine an international regime with these institutional features:
1. Virtually free trade in goods and services, including a "mutual recognition" system whereby compliance with regulatory requirements in one jurisdiction (eg qualifications to practice law or requirements to offering securities to the public) basically means exemption from compliance with regulations in the other jurisdiction. And for sensitive areas, such as food safety, there is a trans-national regulator.
2. Virtually free movement of capital, underpinned by private sector and governmental initiatives.
3. Permanent residence available to nationals from the other jurisdiction (and strong pressure to maintain flexible rules about multiple nationality).
4. Treaties for regulatory cooperation, simple enforcement of judgments (a court ruling in one jurisdiction is treated virtually identically to a ruling of a local court), and to avoid double taxation (including a system for taxpayer-initiated arbitration among the member states).
5. Government commitment to harmonising business law more widely, eg now for consumer and competition law.
No, the answer is not the obvious one: I am NOT talking about the European Union (EU). I am referring to the Trans-Tasman framework built up between Australia and New Zealand, particularly over the last decade, sometimes through treaties (binding in international law) but sometimes in softer ways (eg parallel legislation in each country). And since both countries are actively pursuing bilateral and now some regional Free Trade Agreements (FTAs), especially in the Asia-Pacific region, can't at least some of these Trans-Tasman initiatives become a template for a broader "Asia Pacific Community"?
This question is particularly timely as the new DPJ-led government in Japan, has declared its support not only for the WTO system but also for FTAs, particularly in the Asian region. It also advocates improvements in food and consumer product safety measures. Whether or not Australia is considered part of Asia, either by Japan or itself, the two countries are continuing bilateral FTA negotiations in the context of growing involvement in regional arrangements in the Asia-Pacific region. Such developments constitute one theme at the NZ Centre for International Economic Law conference, “Trade Agreements: Where Do We Go From Here?”, over 22-23 October 2009 in Wellington. Below is an edited introduction to my four-part paper, now available in further updated form as a Sydney Law School Research Paper. Powerpoint slides are also available in PDF here.
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.
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.
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.)
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.)
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.
Law, Public Policy and Economics in Japan and Australia: Reviewing Bilateral Relations and Commercial Regulation in 2009
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.
Professor Yasuhei Taniguchi presented a public lecture on this topic on 30 July at Sydney Law School, as part of the 2009 Distinguished Speakers series commemorating the inauguration of its new building in February. Drawing on his experience as a world-renowned civil law professor, arbitrator and WTO adjudicator, Taniguchi-sensei focused mainly on points of similarity and difference between the WTO dispute resolution system and national courts. His conclusion was a qualified "yes", despite the main challenges still afflicting trade law litigation among states through the WTO system - the topic of a one-day symposium on 14 August, also at Sydney Law School.
A recent lecture in Sydney by Meiji University Professor Keizo Yamawaki reminded me that every country has its myths or somewhat warped perspectives concerning its own national identity. Australia’s include the idea that it was traditionally English at its core, even though many of its organising principles – egalitarianism, respect for the state, yet a certain larrikanism – were arguably Irish (Patrick O’Farrell, The Irish in Australia, 3rd ed 2000, UNSW Press, Sydney, p 21). Another was that Australia centres on rural communities and ‘the bush’, even in the case of its greatest sporting hero (Brett Hutchins, Don Bradman: Challenging the Myth, 2001, Cambridge UP). A related but debatable motif is that Australia can and should enlighten the world - be “better than the British”. Such thinking underpinned the Chifley government’s push to entrench human rights in Europe and the fledgling United Nations, and to promote a politically radical labour movement in Occupation Japan. Yet the latter policy also involved deeply pragmatic assumptions (Christine de Matos, Imposing Peace and Prosperity, 2008, Australian Scholarly Publishing, North Melbourne). And the former push has failed to result, even now, in an enforceable Bill of Rights throughout Australia itself (Geoffrey Robertson, The Statute of Liberty: How Australians Can Take Back Their Rights, 2009, Vintage, North Sydney).
In Japan, one of the most persistent myths or over-exaggerations has been that of national homogeneity. Yet this is being increasingly undermined by new initiatives to bolster long-term immigration into Japan, building off a significant rise in foreign residents since the 1990s.
[Forthcoming (May 2009) in the Asia Pacific Journal of Environmental Law]
Every Australian summer, relations with Japan heat up over whaling. This New Year of the Ox is no exception. On 8 January 2009, a Japanese official reportedly called on Australia to deny port access to the Sea Shepherd Conservation Society’s protest ship, which has begun impeding the lethal research underway again by the Japanese whaling fleet in the Southern Ocean. But there is uncertainty over whether the ship’s activities amount to the alleged ‘sabotage’, and about the implications under national and international law. The editor of The Australian has also argued that Sea Shepherd is ‘On the wrong course’, and that Captain ‘Paul Watson’s zealotry at sea will not stop Japanese whaling’.
On the other hand, as a practical matter, it is hard for Australia to refuse entry to the ship. Sea Shepherd renamed it the Steve Irwin, after the nation’s recently-deceased iconic figure for conservationism – still (in)famous for his own larrikin image. Such symbolism, and the public photo of Paul Watson ‘standing resolute beneath a skull-and-crossbones flag’ highlighted by the editorialist, illustrates the impact of images and wider discourse in framing the contested issue of whaling. And that is the main thesis of USydney’s Dr Charlotte Epstein, in her new book on The Power of Words in International Relations: Birth of an Anti-Whaling Discourse (MIT Press, 2008, Cambridge, Mass. /
London, England (distributed in Australia by Footprint Books), ISBN 978-0-262-55069-7, xii + 333 pages). Her book should be required reading for government officials and others interested in this issue in Australia, Japan and beyond, because the work also helps explain the irony of each country adopting mutually contradictory positions when it comes to whaling. Economic and political interests do partly explain such internally inconsistent positions, but they also seem more likely to prevail when such material interests interact with a broader ‘discourse’, which can persist in different forms in different countries at different times.
[Originally posted, with full hyperlinks, at http://eastasiaforum.org/author/lukenottage/]
If you are one of those many more short-term visitors to Japan nowadays, and even if you are an old hand, watch out for signs setting out various rules that may be unexpected or new. Like these two signs:
The bigger one to the bottom left is one of many signs we see increasingly around Japan in English (and sometimes now Chinese or Korean). The text is small but reads: “In the Beautification Enforcement Areas you will be fined up to 30,000 yen for littering regardless of your nationality or status”. The kind of prohibition and penalty you might expect in Singapore. Not in Japan, where local communities have long taken pride in being tidy – although that has not excluded individuals or dodgy firms from dumping their rubbish in distant communities! But what is meant by the round blue sign up on the right?
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- Submission to the Senate Inquiry into the Commonwealth’s Treaty Making Process
- Investment Treaty Arbitration ‘Down Under’: Policy and Politics in Australia
- Guest Blog - "The Cautionary Tale of HIH: 'Independent' Directors as Lemons"
- Consumer Protection and Free Trade [and Investment] Agreements
- Who Rules Japan? Popular Participation in the Japanese Legal Process
- The “Anti-ISDS Bill” before the Australian Parliament
- Why no investor-state arbitration in the Australia-Japan FTA?
- Bill proposing to preclude Australia from ISDS in future investment treaties
- 12th ANJeL Japanese Law conference: Cairns, 16 May
- Investor-State Dispute Settlement Back for Australia’s Free Trade Agreements