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Abstract: This paper begins by suggesting that the substantive Lex Mercatoria is showing signs of growing formalisation, evident in the progression from the 1980 UN Sales Convention (CISG) to the more detailed provisions of the 1994 UNIDROIT Principles of International Commercial Contracts (UPICC). Similarly, international commercial arbitration law and practice became increasingly formalised over the 1980s. However, since the late 1990s there have been signs of a shift back towards more informalism - especially attempts to regain the advantage of speedier proceedings compared to cross-border litigation - and, often relatedly, more global solutions to major issues arising in the arbitration world. The paper urges further and consistent developments in both respects, leaving the broader question of whether the substantive Lex Mercatoria also may be due for a swing back towards less formal norm-setting.
arbitration, contract law, comparative law
Abstract: Japan is in the midst of massive law reform. Mired in ongoing recession since the early 1990s, Japan has been implementing a new regulatory blueprint to kickstart a sluggish economy through structural change. A key element to this reform process is a rethink of corporate governance and its stakeholder relations. With a patchwork of legislative initiatives in areas as diverse as corporate law, finance, labour relations, consumer protection, public administration and civil justice, this new model is beginning to take shape. But to what extent does this model represent a break from the past? Some commentators are breathlessly predicting the "Americanisation" of Japanese law. They see the triumph of Western-style capitalism - the "End of History", to borrow the words of Francis Fukuyama - with its emphasis on market-based, arms-length transactions. Others are more cautious, advancing the view that there new reforms are merely "creative twists" on what is a uniquely (although slowly evolving) strand of Japanese capitalism. This paper takes issue with both interpretations. It argues that the new reforms merely follow Japan's long tradition of 'adopting and adapting' foreign models to suit domestic purposes. They are neither the wholesale importation of "Anglo-Saxon" regulatory principles nor a thin veneer over a 'uniquely unique' form of Confucian cultural capitalism. Rather, they represent a specific and largely political solution (conservative reformism) to a current economic problem (recession). The larger themes of this paper are 'change' and 'continuity'. 'Change' suggests evolution to something identifiable; 'continuity' suggests adhering to an existing state of affairs. Although notionally opposites, 'change' and 'continuity' have something in common - they both suggest some form of predictability and coherence in regulatory reform. Our paper, by contrast, submits that Japanese corporate governance reform or, indeed, law reform more generally in Japan, is context-specific, multi-layered (with different dimensions not necessarily pulling all in the same direction for example, in relations with key outside suppliers), and therefore more random or 'chaotic'.
corporate governance, stakeholder relations, capitalism, law reform
Abstract: This paper takes issue with the dogmatic view that Alternative Dispute Resolution (ADR) is limited to interest-based resolution of disputes by agreement without any element of third-party determination of legal rights, thus excluding arbitration from its compass. Arbitration's roots in party autonomy gives it many forms, sometimes overlapping with more evaluative forms of mediation or other ADR processes. Reinstating (especially international commercial) arbitration on the ADR spectrum is a more promising way to address critical issues facing our civil justice systems.
arbitration, ADR, civil dispute resolution
Abstract: The United Nations Convention on Contracts for the International Sales of Goods (CISG) has attracted growing numbers of member states, as well as increasingly accessible case law, over the last two decades. However, Japan and the United Kingdom refuse to accede, and some law firms in member states such as the United States, Australia and New Zealand apparently continue to advise clients to opt-out of CISG (pursuant to Article 6) in individual cross-border sales contracts that would otherwise be governed by CISG. This article shows how countries like Japan could benefit from acceding to CISG, and how countries like Australia need to work harder to take full advantage of having acceded. Part II begins with a case study, based loosely on recent experience in helping a New Zealand company to resolve an escalating problem involving major export sales of vegetables to Japan. It outlines CISG's coherent and straightforward structure, making it easier to work through the many legal and practical issues potentially involved, at least compared to the complex body of contract and sales law in the English tradition. Overall, the key benefits of being able to apply CISG to these transactions are its accessibility, its intelligibility to business people as well as to legal professionals, and its potential for consistent interpretation (particularly if combined with dispute resolution through arbitration). Generalizing even further, Part III then considers - but mostly rejects - possible objections in fact broadly related to those points. One set of objections stems from traditional lawyers' preference for the familiar - and, to outsiders, the mysterious. Relatedly, especially in Anglo-Commonwealth jurisdictions, they favor more elaborated sets of norms, with their own unifying principles and supporting institutions. But the deep-rootedness of such objections suggests that certain psychological barriers, now quite well-known in other areas of law and life (particularly in law and behavioral economics), may also be limiting full engagement with CISG. Part IV therefore ends by looking for ways of overcoming such biases and institutional inertia, calling for renewed efforts by law reformers, teachers and especially practitioners, as well as sketching some broader theoretical implications for the globalization and harmonization of commercial law.
contract law, comparative law, Asian law, Japan, Australia, New Zealand behavioural law and economics
Abstract: Japan has recovered from a 'lost decade' of economic stagnation over the 1990s. Anyway, it has been a 'found decade' for civil and criminal justice law reform, especially in corporate and securities law. Yet, have liberalisation and globalisation in those fields led to major changes in the 'law in action'? Does this represent 'Americanisation' of Japan's corporate governance system, focusing on shareholders rather than other key stakeholders such as 'main banks', core employees, and partners within diffuse corporate groups (keiretsu)? This version of our introductory chapter explains how our forthcoming book argues for a more complex 'gradual transformation'. Such shifts are also found in many other post-industrial economies, but Japan appears to give greater emphasis to certain modes of achieving change. The book brings together contributions from academics and practitioners from Japan, Australia, New Zealand, Canada and the United States. An early chapter introduces methodology for effective cross-country comparisons and for evaluating the burgeoning but divergent literature on Japanese corporate governance. The concluding chapter compares continuities and changes in Japan's largest companies now and two decades ago. Other chapters cover 'lifelong employment', main banks, the untold story of closely-held companies, the limited uptake of the Committee-based governance form, and the procedural, substantive and FDI policy dimensions of takeovers law and practice.
Corporate governance, corporate law, securities regulation, Japanese law, Asian law, comparative law
Abstract: This paper sketches a roadmap of key features and directions in Australian corporate governance, generally (Part 1) and specifically regarding takeovers law and practice (Part 2). In particular, it introduces highlights from a growing corpus of empirical studies, and identifies points that may be of special interest to those familiar with major changes or debates underway in many parts of the Asia-Pacific, particularly in Japan. Part 1.A begins with the insight that Australia may not be so Anglo-American after all, because traditionally it has more blockholders (concentrated shareholdings) and less active institutional investors. This may help explain still limited changes to law and/or practice regarding derivative shareholder suits, as well as more arm's-length market-based monitoring mechanisms such as disclosure, independent directors, and executive remuneration packages (Part 1.B). On the other hand, Australia is experiencing a new boom in M&A (Part 2.A), and its levels of hostile takeovers and success rates even in the 1990s appear close to those in the UK (2.B), although success rates in both countries are much higher than the US. This arm's-length control mechanism may have become more prevalent due to broader economic changes, such as liberalisation of financial markets to allow easier financing of takeovers. But another factor seems to have been the historical legacy of following the law in England, despite the latter's less concentrated shareholding patterns (2.C). The environment is likely to have become even more conducive to hostile takeovers from 2000, when disputes were largely diverted from the courts to a full-scale Takeovers Panel (2.D), similar to that introduced along with the UK City Code on Takeovers in 1968. However, Australia's version is somewhat more formalised, and was recently challenged for unconstitutionally usurping judicial power. Overall (Part 3), this analysis suggests a more complex picture of corporate governance transformations. They do not necessarily pull all in the same direction (as the takeovers market shows), and there remain some important differences from developments in the UK and especially the US.
Corporate law, takeovers, comparative law, Australian law, Commonwealth Law, Asian law, Japanese law
Abstract: This article outlines key features of the latest reforms to Japan's Code of Civil Procedure, enacted in 2003 with effect from 2004. Even more so than the 1996 amendments, these reforms are directed at speeding up civil proceedings, as part of the government's whole-scale reforms to civil (and criminal) justice initiated in 2001. The increased burdens placed on lawyers may also reflect their declining relative influence in Japan's law reform processes.
Japan, civil procedure, comparative law
Abstract: Japan finally seems to be pulling itself out of its "lost decade" (and a half) of economic stagnation. Some grudgingly or triumphantly attribute this to micro-economic reforms, freeing up arthritic markets, although there is also evidence that macro-economic policy failures have been a major cause of poor performance since the 1990s. Many point to overlapping transformations in corporate governance, broadly defined to cover relationships among managers and employees as well as between firms and outside shareholders, creditors, and other stakeholders. These relationships are in flux, with moves arguably favouring shareholders and more market-driven control mechanisms. It has certainly been a "found decade" for law reform in Japan, particularly in corporate law, with a plethora of legislative amendments commencing around 1993 and culminating in the enactment of a consolidated "Company Law" in 2005. This "modernisation" project, particularly since 2001, is reportedly aimed at (i) securing better corporate governance; (ii) bringing the law into line with a highly-developed information society; (iii) liberalising fundraising measures; (iv) bringing corporate law into line with the internationalization of corporate activity; and (v) modernizing terms and consolidating corporate law. Because the suite of revisions has moved away from strict mandatory rules set out originally in Japan's Commercial Code of 1899, modeled primarily on German law, another growing perception is that Japanese corporate law and practice is or will soon be converging significantly on US models. However, assessments remain divided as to whether these moves in corporate governance and capitalism more generally in Japan amount to a new paradigm or "regime shift". Focusing primarily on quite influential commentary in English, Part I of this paper outlines two pairs of views. It concludes that the most plausible assessment is of significant but "gradual transformation" towards a more market-driven approach, evident also in other advanced political economies. Drawing more generally from these often virulently divided views, Part II sets out five ways forward through the proliferating literature and source material on corporate governance in Japan. Particular care must be taken in: (i) selecting the temporal timeframe, (ii) selecting countries to compare, (iii) balancing black-letter law and broader socio-economic context, (iv) reflecting on and disclosing normative preferences, and (v) giving weight to processes as well as outcomes, when assessing change in Japan - and any other country's governance system. Part III ends with a call for further research particularly on law- and policy-producing processes, rather than mainly outcomes. It also outlines the usefulness of this analytical framework for analysing the broader field of Corporate Social Responsibility, now emerging as the next major area of debate and transformation in Japan - as elsewhere.
corporate governance, comparative law, Japan
Abstract: This is an updated collection of my own postings on the new East Asia Forum blog. Created primarily by political economists from the Australian National University in mid-2008, the blog is attracting a wide readership and regular contributions from experts interested in or based throughout the rapidly evolving Asia-Pacific region. My starting point involves taking seriously Australian Prime Minister Kevin Rudd's call, just before his visit to Japan around the same time, for a new East Asian Community. Thematically, my postings focus mainly on FDI and corporate governance, financial markets and consumer credit regulation, product safety regulation, and different countries' media coverage of these and other issues in the region. Geographically, postings mainly examine developments affecting Japan. But this is done often expressly in connection with Australia, as well as other countries in the Asia-Pacific region (including China, India, New Zealand, and the United States), with links also to developments in the European Union (EU). Chronologically, postings were originally from July-October 2008, a particularly tumultuous period, but the events often connect to longer-term developments. They can be read one after the other, and the original order has been preserved. I tried to sequence each posting to link back especially to the previous one, as well as other postings by myself or other contributors to the blog, while addressing hot topics of the times. The hope, very loosely inspired by how Ronald Dworkin views judge-made law emerging like a 'chain novel', is that readers can begin to see my own (and perhaps others') underlying empirical and normative views on some important 'gradual transformations' in Japan and beyond.
Japanese law, Asian law, comparative law, regional architecture, political economy, foreign direct investment (FDI), corporate governance, financial markets regulation, product liability and safety regulation, consumer law and policy, arbitration
Abstract: Over the last decade or so, elaborate theoretical and empirical analyses of 'varieties of capitalism' have been developed, mainly to contrast Anglo-American models with those in East Asia and - especially - Europe. Corporate governance, broadly defined as relations among a range of stakeholders in firms, provides a useful focal point in testing and refining these analyses, especially in relation to Japan and the issue of convergence or divergence on Anglo-American models. Parts II-IV of this paper apply principal-agent theory to identify problems arising from incomplete information and possible opportunism among managers, shareholders, creditors and employees. It finds considerable realignment of manager and shareholder interests, even more change to Japan's main bank system of corporate governance, and less obvious - but significant - transformations in employment relations. Although differences are therefore apparent in these three major components of corporate governance, the degree of convergence towards more arm's length control mechanisms characteristic of Anglo-American models is more pronounced than expected by some theorists of 'varieties of capitalism'. However, Part V suggests that more cooperative relations may continue to prevail at the level of industrial production in Japan, premised on expansive information-sharing and participation, in turn suggesting that more than opportunism is at work. The Japanese state may also be moving in this direction, implying a more positive assessment of seemingly indecisive policy-making over the last decade. This could further set the stage for new forms of corporate governance to emerge, similarly characterised by forthright information-sharing among new stakeholder participants. Key issues are therefore whether Japan as a whole is moving towards more openness in information flows and participation by various socio-economic groups, and whether this is driven purely by concerns about opportunism or by other normative considerations. These issues are common to the US and Britain as well, suggesting a deeper level of convergence in Japan. But how they are resolved could well play out quite differently, leaving important divergences. In this conclusion, and generally by suggesting some possible tensions as well as coherence among important dimensions of contemporary capitalist systems, this paper therefore questions some other tenets of 'varieties of capitalism' theories developed so far.
Corporate law, Japan
Abstract: This paper is inspired by accelerating initiatives by European Union bodies since the late 1990s to harmonise, and perhaps eventually unify, private law - especially contract law (outlined in Part A). Part B embarks on an "archaeology" of the positions and arguments adopted by some of the main academic commentators in the debate about the harmonization or more thorough-going unification of private law, concentrating mainly on writings before the recent spate of activity in Europe - more clearly driven by various policy agendas. Deep tensions emerge from the corpus of comparative private law scholarship which emerged over the 1990s, fuelled by debates particularly in Europe (Part B.I), but also world-wide (Part B.II). One characteristic of these studies is the focus primarily on convergence: similarities in actual results in particular litigated cases, doctrinal developments, shared legal vocabulary, or the like. Convergence tends to be perceived as occurring in fact, as well as being normatively desirable. The focus is found most strongly among those favoring unification, but also among advocates of a range of harmonization initiatives. Both groups, moreover, share a second characteristic. They direct overwhelming attention to legal rules and solutions, "the law in books" rather than the "law in action", despite some commentators giving lip-service to the latter's importance in comparative research (Part B.III). However, vigorous counter-arguments have been presented which uncover and defend diversity and divergence (Part B.IV). These often arise regarding the Europeanization (or otherwise) of private law, but address or implicate issues in comparative law methodology generally. Most adopt an expansive view of law, sometimes radically so. Despite some notable exceptions, these two main vectors form the sub-structure for a considerable part of the academic debate not only in Europe, but also regarding contract law harmonization at a global level. Part C then develops a "middle way" forward through this methodological jungle, engaging with broader debates in comparative law theory as well as private law harmonization in Europe. From that broader vantage point, hopefully less constricted by the mundane "bureaucratic politics" of much comparative law activity, as well as recent EU decision-making processes, an Epilogue revisits specific proposals made by the European Commission in 2002 to generate some distinctive conclusions for that particular policy debate.
European Union, private law, harmonisation, comparative law
Abstract: A decade ago, leading arbitration institutions and practitioners responded to growing concerns about burgeoning costs and delays in international commercial arbitration ("ICA") partly through some considerable changes to Arbitration Rules. Nowadays, however, disquiet has re-emerged especially about costs. Some point to parallels with civil procedure reforms in various national court systems since the 1990s. Those may have accelerated processes, but front-loading costs does not necessarily reduce them significantly. Arbitration institutions are again responding to similar concerns about ICA. Some have published new Expedited Arbitration Rules, Mediation Rules, or encouraged renewed debate about more controversial measures to minimise costs such as Arb-Med (arbitrators encouraging settlement). Some institutions (like the ICC) have also instituted new rounds of reforms to their generic Arbitration Rules. Sometimes, Rule changes have followed amendments to arbitration legislation in the relevant jurisdiction (as in Japan). The Australian Centre for International Commercial Arbitration ("ACICA") also unveiled Arbitration Rules in 2005, and then Expedited Arbitration Rules in 2008. All these recent developments are occurring as UNCITRAL proceeds with revisions to its 1976 Arbitration Rules, designed initially for ad hoc arbitrations but influential also among many arbitration institutions. It is therefore useful for the broader development of ICA to make more widely accessible this updated overview of the 2005 ACICA Arbitration Rules, comparing developments in many major arbitral institutions world-wide. The paper is particularly timely because the ACICA Rules will be used by hundreds of mock arbitrators and advocates in the 17th Vis Moot, to be held in Vienna and Hong Kong around March 2010. This event has become one of the most important in the ICA world, training not only a new generation of arbitration experts but also exposing more established experts to new developments and ideas. Both aspects are essential to the vitality of ICA and its perennial quest for an optimal balance between efficiency and procedural justice.
international commercial arbitration, private international law, alternative dispute resolution (ADR), Australian law, legal institutions, comparative law, law reform
Abstract: In early 2007, the Productivity Commission (PC) embarked on a public Inquiry into Australia's Consumer Policy Framework. This article argues that a core aspect, product liability of manufacturers for their defective goods, has become a legal morass. Multiple causes of action persist: common law negligence (including a little-noticed revival of claims for breach of statutory duty); Trade Practices Act (TPA) claims on a contractual basis; and TPA Part VA claims on a strict liability basis, modelled on the EC Product Liability Directive (generally understood as a statutory tort). The picture is further complicated by state legislation, and various "tort reforms" implemented differently in various states and in the TPA since 2002. Case law has also slowly built up, even under TPA VA since it was enacted in 1992. However, it has been little analysed, and does not draw much on judgments or commentaries analysing similar provisions in Europe or indeed the Asia-Pacific region. Australia's tort reforms are likely to significantly close off opportunities for claimants to bring allegations of defective products before the courts, who might then begin addressing the ever-growing complexities. This is true even for class actions, also introduced into Australian federal courts in 1992, and anyway generating their own complications. The resultant higher transaction costs cannot be good for manufacturers and their insurers, nor for most consumers. The article therefore concludes that Australia's product liability law urgently needs a comprehensive overhaul, involving a range of stakeholders including the PC and the Australian Law Reform Commission. As the latter pointed out in 1989, product liability law needs to minimise transaction costs and to send clear signals so firms can internalise the costs of product-related accidents. As well as legislative reform, stakeholders should elaborate a "Restatement of Strict Product Liability Principles". To guide courts and policy-makers, this would synthesise experiences and ideas emerging from commentators as well as case law not only in Australia, but also other jurisdictions with provisions similar to Part VA. Thanks to such initiatives, other areas of consumer law in Australia may improve too. Otherwise, the morass risks turning into a swamp.
comparative law, consumer law, consumer policy, tort law, product liability, class actions
Abstract: This paper details the development of an important part of Japan's legal landscape, hitherto little written about in English: the roles and functions of Japan's corporate legal departments and their staff (in-house counsel). After sketching their evolution first as Japanese corporations began expanding activities overseas in the 1970s, and then more defensively as economic stagnation intensified within Japan over the 1990s, the paper draws on extensive survey data in 1990, 1995 and 2000 to track steady strengthening and new directions for legal departments. These trends also help explain the puzzle of civil justice reforms in Japan since 2001 being pushed along by the corporate sector, which in most other advanced industrialised countries tends to resist expanding access to the courts.
Japan, corporate governance, corporate culture, legal services
Abstract: This article analyses results from a major empirical study, completed in 2000 by Professor Klaus Peter Berger and his team at the Center for Transnational Law (CENTRAL), examines current practices and perceptions in both trans-border arbitration and contracting - what they refer to generically as Transnational Law or which others have dubbed the new lex mercatoria. Their survey confirmed considerable application by practitioners of transnational norms (such as the UNIDROIT Principles of International Commercial Contracts, or more inchoate formulations) in contract negotiations, drafting, and especially dispute resolution through arbitration. Japan played a small but significant role in this practice. English practitioners remained distinctly more skeptical about the lex mercatoria, however, arguably reflecting their legal system's persistent orientation towards more formal reasoning (compared to both American and Japanese law). Such results suggest for example some globalised localism, whereby local phenomena (especially in core countries) continue to diffuse world-wide, partly countering localised globalism, represented by the ongoing expansion of transnational arbitration impacting on domestic practices and attitudes. More generally, the survey results highlights the important theoretical and practical implications of the lex mercatoria for individual countries like Japan.
contract law, arbitration, comparative law, Japan, lex mercatoria
Abstract: The discipline of comparative law has displayed some renewed vigour after a period of soul-searching, particularly over the last five years. The bulk of much work maintains an excessive focus on black-letter law, but even this has become more relevant to policy-makers, while other comparativists have begun to develop more sophisticated theoretical and empirical insights. These developments create a challenge for Asian law scholarship, which had benefited from the problems afflicting comparative law. Especially for studies of Japanese law, a more encompassing perspective now seems more appropriate.
comparative law, Asian law, Japanese law
Abstract: This article analyses patterns in reported case filings in Japan, particularly since the summers of eating dangerously and renewed public controversy over product safety issues since 2000-1. Especially compared to other jurisdictions that added a strict-liability regime modelled on the European Union's Directive of 1985, the volumes and types of filings are quite considerable, and the proportion of pro-plaintiff judgments recently is particularly noteworthy. Other patterns, including significant geographical dispersal in litigation venue, a high proportion of claims for 'consumer' (as opposed to 'business') losses, and quite reasonable disposition times, also confirm patterns emerging over the 1990s.
Japan, product liability, product safety, comparative law
Abstract: This paper begins to fill a gaping void in the English-language literature on a pressing socio-economic problem in Japan - the rise in unsecured consumer lending particularly since the early 1990s, followed by a partial fall due primarily to stricter enforcement recently of interest rate restrictions. Parts I and II reveal broad parallels with consumer over-indebtedness and lenders' business models in other post-industrial capitalist societies, although for example cash loans remain distinctively more common in Japan than credit card based lending. Part III outlines the statutory regime until 2005, and the caps and other reforms introduced in late 2006 that are having a major impact on Japan's consumer credit providers - as well as other financial institutions. The reforms were pushed along by judgments from Japan's highest Court, which has deployed sometimes purposive and sometimes literalist interpretations to benefit consumers. Such phenomena pose challenges for certain longstanding paradigms advanced by commentators outside Japan to explain the country's law and society. Those perspectives and several others are outlined in Part IV, the Interim Conclusions, along with other implications for consumer law generally, which are pursued in a companion paper.
Japan, Asian law, consumer law and policy, consumer credit, contracts
Abstract: This article draws on survey results to provide a preliminary empirical benchmark of the impact in the Asia-Pacific Region of strict-liability product liability law reforms, implemented in many jurisdictions since the 1990s based often on the 1985 European Commission Directive. It identifies considerable convergence in the "law in action" as well as the "law in books," largely mirroring results from the baseline survey of European jurisdictions completed in 2002 by Lovells for the Commission. Similar effects include small but significant increases in claims, settlements, and reactions from firms. However, these tendencies are also affected by broader (arguably inter-related) factors such as shifts in consumer consciousness and media attention. Conventional causes of action also continue to be invoked, and there is not much call for further reform. This situation highlights the distinctiveness of high levels of product liability litigation in the United States. Growing but limited case law in certain Asia-Pacific and European jurisdictions should be synthesized into "Strict Liability Product Liability Principles." It also is likely that the Asia-Pacific will continue to follow more the European Union in related areas such as consumer access to justice and product safety regulation.
product liability law, comparative law, Asian law
Abstract: This book chapter from a conference of the International Association of Procedural Law considers rather diverse responses from legal education systems world-wide to rather similar pressures from market and other forces. Part II focuses on arbitration law, practice and education in Australia, especially the defining features of legal education provided by today's universities. Part III looks more broadly Alternative Dispute Resolution (ADR) Education in an era of accelerating globalization and developments in Information Technology (IT). It introduces some of the proliferating international arbitration and negotiation moot competitions, involving students physically crossing borders, as well as more recent experiments in cross-border contract (re-)negotiations that make use of diverse IT. The paper ends with a proposal for universities, in particular, to take the lead in developing an IT-based course or competition involving cross-border involving contract negotiation, structured renegotiation, and arbitration.
arbitration, legal education
Abstract: The more things change, the more some stay the same. Our paper first highlights renewed concerns about delays and, especially, costs in international commercial arbitration (ICA). Many now urge quite radical solutions to make ICA more efficient, including allowing parties to authorise arbitrators to facilitate settlement (Arb-Med). At the same time, there are growing calls for more transparency, non-party participation, and other rule changes to promote the legitimacy of the burgeoning field of investor-state arbitration (ISA). Such reforms are justified by the greater variety of public interests involved in ISA, despite some possible losses in efficiency (Part 2). We should resist a tendency simply to extend the solutions devised or proposed for ICA, particularly in the form of Rules of arbitral institutions, to contemporary ISA. However, some reforms incorporating proper safeguards may also be advisable in both fields, such as Arb-Med processes, or arbitrator remuneration providing better incentives to streamline proceedings. Many reforms can be implemented by institutions devising tailored ISA Rules, to be added as options for investors in bilateral or regional investment treaties or Free Trade Agreements (FTAs: Part 3). Our paper therefore proposes a variety of improvements (Part 4). These are based on comparisons of the main Rules adopted for ISA (ICSID and the UNCITRAL Rules), the Arbitration Rules of institutions like the Australian Centre for International Commercial Arbitration (ACICA) and the Japan Commercial Arbitration Association (JCAA), and some of the provisions already found in Australia's FTAs or governing trade disputes under the World Trade Organisation (WTO) system. Hopefully, these improvements will enable ISA to keep developing through bilateral initiatives such as the proposed Australia-Japan FTA, emerging regional initiatives, and ultimately a multilateral framework for investment (Part 5). Although reforms are currently needed to bolster the legitimacy of ISA, longer-term reforms may instead re-emphasise efficiency, rather like ICA has done after decades spent achieving global acceptance.
international investment law, investment arbitration, international commercial arbitration, Australia, Japan
Abstract: This article analyses the Commercial Arbitration Rules of the Japan Commercial Arbitration Association, amended with effect from 1 April 2004 in conjunction with Japan's new Arbitration Law of 2003 based on the 1985 UNCITRAL Model Law. Since so much of the Law comprises default provisions, the scope and interpretation of the new JCAA Rules are essential to promoting consensual Alternative Dispute Resolution, a key plank of the whole-scale reform of civil justice initiated since 2001. Such changes may also help correct rather stereo-typical views linking limited use of arbitration within Japan to alleged cultural preferences. Finally, the efforts behind amendments to the JCAA Rules should contribute to further rounds of arbitration law reform and improvements in the rules and practices of ADR bodies in Japan, the Asia-Pacific region, and world-wide.
commercial arbitration, Japan
Abstract: More than some general cultural aversion, disinterest on the part of the government and an array of structural disincentives facing parties and arbitrators best explain the low uptake of arbitration services within Japan. The Arbitration Act of 2003 signals a shift, aimed primarily at expanding ADR for domestic users as part of Japan's wide-ranging reforms to civil justice initiated since 2001, but which may also reinforce slow but steady internationalisation of arbitration in Japan.
japan, arbitration, civil dispute resolution
Abstract: Recently there has been talk of change in the law of contract in the United States, England, New Zealand and Japan. Often this is linked to broader trends of internationalisation. This article builds on the form-substance framework proposed by Atiyah and Summers, focusing on the fine print doctrine, the duty of good faith, and the law of unconscionability and undue influence. It argues that developments in these areas of contract law, which control unfair contracts, tend to be consistent with the overall orientation of each national legal system. This suggests that counter-systemic developments in each legal system's contract law will be met by more resistance than expected. Further, those overall orientations are not necessarily convergent, and this is likely to affect the impact of international developments in contract law on each legal system.
contract law, Japanese law, New Zealand
Abstract: This paper, presented at a conference honouring the work of leading legal sociologist Takao Tanase, shows how a recently translated selection of his influential works contributes to debates about the best paradigm to explain Japanese law, as well as about the relationship between law and society more generally. The culturalist paradigm prevalent until the 1970s argued that the Japanese don't like law, due to engrained Confucian traditions emphasizing harmony and hierarchy. Institutional barriers theory countered that the Japanese can't like law due to impediments discouraging engagement with the legal system. The elite management paradigm argued that conservative politicians, regulators and big business interests promoted this situation, especially after World War II, to manage the pace and direction of social change in Japan. In other words, the Japanese are made not to like law. By contrast, the economic rationalist paradigm stressed that often the Japanese do like law, with at least some comparatively clear-cut legal rules casting a clear shadow over out-of-court dispute settlement and deal-making. Over the last decade the strengths and weaknesses of these various theories have been explored, and tested particularly in the context of a raft of socio-legal transformations underway in Japan. More studies are adopting a hybrid paradigm, applying more diverse methodologies to show how sometimes the Japanese like law, but sometimes they don't. Tanase's work contributes to this new trend by re-emphasising a neo-culturalist or communitarian impulse in (post-)modern Japanese law, and legal systems more generally. His conclusions and evidence are rooted in a hermeneutical understanding of our world, challenging epistemology that sharply distinguishes facts from norms, and thereby extreme liberal models of law and society. In his studies selected for translation, this approach is applied to fields as diverse as legal ethics, family law, tort law, civil litigation, and constitutional interpretation. Tanase's work is particularly refreshing and timely given the pace and breadth of law reform underway in Japan, but it also holds broader lessons both for jurists in other complex industrialized democracies, and for those engaged in Japanese Studies more generally.
Japanese law, legal theory, law and society, comparative law
Abstract: This article begins by outlining a revival of Product Liability (PL) in Japan over the 1990s, evident from suits filed under the venerable Civil Code as well as the strict-liability PL Law added in 1994, and PL claims beyond the courtroom. However it suggests the need for a new paradigm for PL and product safety, given limits to standardisation in this area of tort law. Growing social and scientific complexities implied the needs for multi-level normative responses, illustrated by Japan's response to safety problems with konnyaku jelly snacks in the late 1990s.
japan, product liability, tort law, comparative law
Abstract: This article, in two Parts, compares regimes regulating the safety of general consumer goods in Australia and Japan, major trading partners which each have experienced major product recalls and other product safety issues in recent years. The article locates the analysis in the context of the Australian government's ongoing review of product safety legislation, and potential reforms in Japan, and both countries' interest in concluding a bilateral free trade agreement, possibly involving a business law harmonisation agenda. It urges convergence on reforms modelled on the revised European Union regime, as the emerging global standard best reconciling the interests of consumers, business, regulators and other stakeholders in consumer product safety.
product safety, Japan, Japanese law, Australia, Australian law
Abstract: In November 2008 Australia's Attorney-General's Department (AGD) initiated a Review of its International Arbitration Act (IAA), last substantially revised two decades ago by adopting the 1985 UNCITRAL Model Law on International Commercial Arbitration (ICA). This aims to claw back ground lost to arbitral venues in the Asia-Pacific, which also implies a clearer framework for enforcing foreign awards. A long-term goal may be to revive domestic arbitration in Australia, which has been languishing. The AGD's Discussion Paper invited Submissions from the public on eight issues in particular. These include whether and how the IAA should incorporate various 2006 amendments to the Model Law, including relaxed writing requirements for arbitration agreements and broader scope for arbitrators to issue interim measures. We urge even more ambitious reform, covering the following "Top Twenty" issues (and numerous other sub-issues) under four headings. Guiding principles should be for the revised IAA to adopt more informal or expeditious solutions, and more global approaches. This is crucial to address the considerable statistical and anecdotal evidence of re-emergent costs and delays in ICA in Australia and world-wide. Stays 1. Arbitrability - scope and applicable law 2. Arbitration agreement - substantive validity and applicable law 3. Conditions on stays 4. Stays under s 7 vs ML Art 8 - alternatives and time limits 5. Arbitration agreement - formal validity and writing requirements Enforcing Awards 6. Two issues when Australia implemented NYC Art V 7. Enforcement possible only under IAA s 8 8. Enforcing awards set aside at seat 9. Suspending enforcement if setting aside sought at seat 10. Public policy 11. Interim measures Model Law 12. Opt-out and opt-in 13. Jurisdiction of courts and devolving powers to arbitral institutions 14. Arbitrators ruling on own Jurisdiction 15. Evidence 16. Arb-Med 17. Awards - copies and reasons 18. Other optional provisions - interest, costs and consolidation Overarching Issues 19. Confidentiality and privacy 20. Overarching principles
commercial arbitration, international dispute resolution, mediation, international law, Australian law, comparative law, consumer law, law reform
Abstract: This article analyses the establishment and initial operations of Product Liability (PL) ADR Centres set up in the wake of the strict-liability PL Law superimposed in 1994 on Japan's venerable Civil Code. Contrary to some commentary in English, the PL Law is not significantly less favourable to consumers compared to the European Union Directive it was modelled on. Nor was the establishment of the industry association based PL ADR Centres mere bureaucratic informalism, designed to divert PL suits into opaque fora controlled by bureaucratic elites. Rather, the Centres represent industry informalism tempered by growing consumer informalism, in the context of broader shifts in Japanese law and society since the 1990s. From this vantage point, the article then analyses the patterns emerging from matters being brought before the ADR Centres, drawing on documentary and interview material. Few of the many inquiries are clearly covered by the PL Law itself. Often, more inquiries come from firms and regulators, not directly from consumers. There are very few formal mediations, as opposed to more informal processes. Nonetheless, the Centres already serve positive functions for consumers and other stakeholders, although various structures and processes remain in need of improvement.
product liability, alternative dispute resolution, Japan
Abstract: This paper sets out preliminary findings from an empirical research project into the impact of information technology (IT) on legal practice and education in Japan, inviting comparisons with Australia. It focuses on data from surveys administered to Japanese law firms, corporate legal departments, law faculties, professors and students, including some follow-up interviews; and introduces some similar research now underway in Australia. Central concerns are whether legal practice in these technologically sophisticated democracies is moving towards "proactive legal information engineering", as predicted by Richard Susskind and others, and whether legal education is rising to this and other major challenges of our IT era.
Legal education, information technology, Japan, Australia
Abstract: This article compares differences in the reasoning underlying contractual relationships between (more formal) English and New Zealand law versus (more substantive) U.S. and Japanese law. It builds upon the framework proposed by Atiyah and Summers by adding the notion of "didactic formality" to identify another important contrast between the laws of these countries. In more formal systems, as in England and New Zealand, stronger didactic formality involves the "law in books" trying to dictate or direct the "law in action", rather than vice versa. The article also discusses how CISG (the UN Sales Convention) and UPICC (UNIDROIT Principles) fit in to this spectrum. The article therefore concludes by questioning "strong convergence" theory in commercial law worldwide.
contract law and practice, comparative law, Japanese Law, Anglo-Commonwealth law
Abstract: This Note for the Yearbook of Consumer Law first updates on proposals to reform Australia's consumer product safety regulation regime. Discussions have largely stalled, despite legitimacy and efficiency concerns evident from a related review of its main standard-setting body. By contrast, Australia's major trading partner, Japan, has developed more momentum towards comprehensive reform. Ironically, this comes out of an anno horribilis involving four major product safety issues in quick succession from mid-2005: asbestos, defective buildings, second-hand electrical goods, and then elevators made by Swiss-based Schindler. Further incidents keep being reported too. Admittedly, tort law remains on an upward trajectory in Japan, and in parallel with economic deregulation since the late 1990s the government has been implementing civil justice reforms aimed to encouraging active pursuit of rights through the courts as a more indirect means of socio-economic ordering, in lieu of ex ante regulation by public authorities. However, many tort claims have been directed specifically against the government after World War II. Criminal prosecutions for professional negligence remain another salient feature of the way the Japanese legal system deals with safety issues. This underpins re-regulatory reforms underway or called for in specific areas, such as asbestos products and construction. It also makes it easier to generate 'horizontal' reforms (covering all types of goods) like those enacted on 28 November 2006 for the Consumer Product Safety Law of 1973. As now in the EU, firms in Japan will generally need to report serious accidents to the authorities. Such developments may yet feed back into reform discussions ongoing in Australia. Nonetheless, Japan's revised Law does not go as far as the new EU regime, and Japan's bureaucrats still try to retain their influence through sector-specific legislation. In addition, over 2001-2006 the Koizumi government accelerated deregulation, at least in some areas and certainly in the overall rhetoric of policymaking. The analysis therefore concludes by highlighting the shared challenges faced by law reformers in our 'world risk society'.
Japanese law, Australian law, comparative law, Torts/Product Liability law, consumer law
Abstract: Australia is considering a full-scale Free Trade Agreement with Japan. This gives added importance to the trajectory of Japanese product safety regulations, and consumer law more generally. Generally, Japan has been dismantling ex ante regulation while strengthening private liability regimes, especially information disclosure obligations, over its "lost decade" of economic stagnation since the early 1990s. Yet it has also re-regulated more broadly in response to safety concerns, as evidenced by four recent case studies involving asbestos (for the third time), buildings, electrical goods, and elevators manufactured by a market leader world-wide. This makes Japan converge on a broader pattern identified within "global business regulation," and makes it likely that the nation (like Australia) will revamp general consumer product regulation along recently revised European Union lines. Yet Japan's regulatory mix still diverges from that in several other industrialized democracies, particularly in the prominent roles played by criminal prosecutions and the spectre of state liability.
Japanese law, Asian law, comparative law, product safety regulation, product liability
Abstract: Japan Inc's regulatory state has begun to unravel, as deregulation has accelerated over the 1990s, but sometimes novel and hybrid forms of re-regulation are also revealed in this process. Models and ideologies of law are associated with each of these paradigms: welfare statism (for regulation), outright neo-liberalism (for hard-core deregulation), and neo-proceduralism (underpinning re-regulation). This paper takes issue with the iconoclastic neo-liberal agenda pursued especially by J. Mark Ramseyer, often in association with two University of Tokyo professors. He purports to have disproved conventional wisdom by showing empirically that that postwar Japan was in fact already characterised by perfectly functioning markets and narrowly self-interested socio-economic actors. Yet, Ramseyer's work comes with a normative impulse and the hope that extreme deregulation thus will be advanced and realised. Instead, this paper counterposes two variants within the neo-proceduralist paradigm capable of providing a theory to both describe and justify certain re-regulatory phenomena. One is a more dialogic liberal model (drawing partly on Habermas) promoted by the politically influential legal philosopher, Shigeaki Tanaka; and the second is the postmodern communitarian approach of his legal sociologist colleague at Kyoto University, Takao Tanase. From this basis, the paper argues that Japan should learn from and develop EU-like regional arrangements in order to add new dimensions to its regulatory apparatus. On the one hand, for example, this would build up capacity for more effective and legitimate harmonization relating to a range of complex human and animal health risks nowadays, such as mad cow disease. On the other, it would provide extra underpinning for other aspects of Japan's ongoing program of economic liberalization that do not directly implicate such risks or constraints, since reducing - but not necessarily totally dismantling all - barriers to trade and investment has been a primary force behind the remarkable European Union project. Japan has long experience in developing, and (to a lesser extent) legitimizing, multi-level governance processes at least within its borders, but is should now redefine and redirect its multi-level governance system to include a new external dimension. One possibility is to add clearer provisions on regulatory harmonization and develop new EU-like institutions - or at least processes - within Japan's recent bilateral arrangements, particularly in the Asia-Pacific region.
Corporate governance, regulation, Japan, comparative law
Abstract: This is an edited transcript of a panel discussion, a popular format in Japanese law journals, from a conference held in Kyoto on transnational legal education. Two professors based in Japan join with three based in Australia, and one from Thailand, to compare and assess various experiments in recent years. One model involves students physically crossing borders. Some take entire degrees abroad, as with the Masters programs at Nagoya and Kyushu Universities. Other students increasingly take some courses abroad. For instance, the "Canberra Seminar" in Australian law includes a week of "Legal English" before a week introducing key areas and principles of the common law most interesting for law students from Japan. A more ambitious example is the "Kyoto Seminar" in Japanese law, involving both Japanese and non-Japanese professors and students in teaching and learning. In another variant, students sometimes get partial credit for activities abroad, like some students from Australia who have participated very successfully in the Intercollegiate Negotiation and Arbitration Competition in Tokyo. Difficulties include the costs involved for students (and their home institutions). This has led to some law schools instead developing more courses taught in English, involving permanent or visiting professors abroad, as in Thailand. Another more recent approach uses Information Technology to run courses in parallel in different jurisdictions. Students remain in their home institutions, but are linked up (through e-mail and/or internet video-conferencing) to hone their skills in cross-border legal communication. Examples include a contract negotiation and renegotiation simulation involving students in Canberra and Tokyo. The main challenge is logistics, including the extra time involved particularly for instructors. Nonetheless, all six panelists agree that transnational legal education is no longer a possibility. It is already a reality, but one requiring further experiments and efforts to train the new generation of globally aware law graduates demanded by legal professions, the public and private sectors, and citizens world-wide.
legal education, Australia, Japan, Thailand, Asian law, Information Technology (IT)
Abstract: Japan witnessed a spate of product safety incidents over the summer of 2000. One reaction to these events might have been to follow some early commentary, especially from academic writers in the United States, asserting that Japan remains characterised by traditional deference to big business and bureaucratic paternalism, despite enactment of the Product Liability Law in 1994. Instead, media coverage tended to perceive recent developments as further evidence of growing consumer power amidst changing institutional constraints; and, to a lesser extent, the shadow cast by fairly clear substantive legal rules. After reviewing these theories and applying them to civil liability for defects particularly in food products, this paper suggests that recent events are also important for promoting broader deliberation in Japan about food safety more generally - now a world-wide concern - and about corporate governance.
Product safety, Japan, product liability
Abstract: Australia has a quite complex system for Alternative Dispute Resolution (ADR) of consumer disputes, due in part to jurisdiction over consumer affairs being shared between federal and state governments. This has allowed some experimentation involving diverse forms of consumer ADR. Indeed, some of these experiments may also provide inspiration for the Japanese government as it discusses greater centralization of jurisdiction over consumer affairs (including possibly a new independent Consumer Affairs Agency), and new roles for the government-funded Consumer Lifestyle Centres (Shohi Seikatsu Senta). Australian law also provides for almost all major categories of consumer redress reviewed by the OECD in its comparative report on 'Consumer Dispute Resolution and Redress in the Global Marketplace' (2006). Yet there remain gaps, complexities and other problems. Unfortunately, Australian politicians and officials appear to be neglecting these in proposing a nation-wide 'Consumer Law', focusing on harmonization of substantive law and greater centralisation of enforcement powers.
Australia, Japan, consumer law reform, alternative dispute resolution (ADR), mediation, ombudsman schemes, small claims courts, construction disputes, legal profession, legal services disputes
Abstract: This article examines what norms and practices drive planning and dispute resolution of exchange relationships among firms, and what this signifies for contract law theory and jurisprudence more generally. Part B.1 compares results from a survey of students in New Zealand and Japan (further discussed in: Economic Dislocation and Contract Renegotiation in New Zealand and Japan: A Preliminary Empirical Study, 27 Victoria University of Wellington Law Review (1997) 59-97) with a smaller-scale survey of firms in both countries. It appears that law and business students are reasonable proxies for, respectively, legally-trained and non-legally-trained company personnel. Overall, the New Zealand firms may be slightly less lenient in their attitudes towards long-term contract renegotiation compared to the respondents in Japanese companies, and firms in both countries may exhibit somewhat more country bias than students; but firms in both countries remain much closer than asserted by some commentators on Japanese attitudes towards contracts. Closer analysis of survey results and follow-up interviews confirm these conclusions. Part B.2 adds a comparison of results from the firms in New Zealand and Japan to a question testing attitudes towards a different renegotiation hypothetical, initially put in a survey to US firms. A striking result is the preparedness of New Zealand firms also to countenance court adjustment of contractual relationships in the event of extreme changes in circumstances, despite this being completely impossible under Anglo-New Zealand law. Part B.3, discussing responses from New Zealand and Japanese firms to questions from the US survey inquiring more into contracting practices, identifies further gaps particularly between practices or expectations and the law in New Zealand. These results provide further evidence for the need to reform the strict law of frustration of contract in New Zealand law (Part B.4). They also suggest that New Zealand law remains more wedded to formal reasoning than both US and Japanese law, in the sense that if a gap emerges between the law in books and the law in action, New Zealand law tries to close it more by trying to get the latter to converge on the former. Finally, the article points out that the results raise difficulties particularly for certain strands of the economic analysis of contract law (Part C).
contract, Japan, New Zealand, comparative law
Abstract: This article mainly reports on preliminary results from a survey of law and business students in New Zealand and Japan regarding their attitudes towards renegotiation of long-term contracts in cases of extreme economic dislocation. Contrary to those positing a much more lenient attitude towards contract renegotiation in Japan, there are no statistically significant differences with New Zealand respondents. Other similarities are a more lenient attitude on the part of law as opposed to business students, and female as opposed to male students. However, New Zealand respondents are somewhat more nationalistic (or less inter-subjective) than their Japanese counterparts. From this vantage point, the article then suggests that the strict Anglo-New Zealand approach to frustration of contract should be revisited, allowing for duties of good faith negotiation and/or court adjustment as argued for and occasionally permitted under Japanese (and US) law.
contract law, Japan, New Zealand
Abstract: From 1998, significant cuts proposed for Japan's civil service fed through to proposals to turn national universities into more profit-driven and accountable agencies. Combined with broader debates on judicial system reform, this led to a rapidly emerging consensus to establish post-graduate law schools in leading Japanese universities. Unimpressed by the short-sighted reactions to initial policy-makers' proposals along these lines, Part II of this paper first considers what the legal landscape in Japan might look like by 2020, arguing that IT-leveraged transformations in legal practice are likely to require much more far-reaching reforms to Japan's legal education system. Part III then focuses on two particular concerns with most of the reform discussion: (i) adding extra (and costly) years of legal education instead of radical surgery at the undergraduate level, and (ii) focusing on teaching more black-letter law for lawyers, judges and prosecutors, rather than contextual knowledge and skills for a wider range of future legal professionals. These problems are likely to create pressures for more radical reforms over the next decade, and Part IV concludes that more open debate and recent reports may underpin such developments.
Legal education, Japan
Abstract: This is the second paper in our trilogy focusing on persistent expansion in unsecured consumer lending in Japan, leading to increasing over-indebtedness and then major judicial and legislative responses particularly from 2006. The Japanese experience provides important lessons particularly in the wake of the Global Financial Crisis of 2008, as the world reassesses how and why financial markets develop and more appropriate goals and means in regulating them. The rise and partial fall of unsecured consumer lending in Japan seem to challenge two still widely-held views about the Japanese, and especially Japanese consumers: they do not like debt, and they do not like law. In fact, such views - especially about the alleged Japanese aversion to law - are only some among a set of influential and quite distinctive schools of thought that have come to dominate the English language world of Japanese law studies. Part II conducts a thought experiment of how some of these diverse schools of thought might explain not only the growth of consumer credit markets in Japan, in the light of legal and socio-economic institutions, but also the recent re-regulation. Specifically, Part II.A develops caricatures of two culturalist accounts (communitarianism and liberalism); Part II.B, three economic theories (Chicago School, information economics, and behavioural economics); and Part II.C, two more political explanations. Part III argues that the most convincing explanations for the rise of unsecured consumer lending derive mainly from revamped (not particularly 'Confucian') culturalist theory and newer (especially behavioural) economics. But the partial fall around 2006 illustrates the increasingly less 'patterned pluralism' - perhaps even populism - of contemporary Japanese politics. These conclusions should be helpful not only in describing other contemporary developments in Japanese law and its political economy, but also when comparing other countries in fields raising similar issues. (A shorter version of this paper was subsequently published in J Niemi-Kiesilainen et al (eds) Consumer Credit, Debt and Bankruptcy: National and International Dimensions, Hart, 2009.) Our analysis also uncovers possible normative implications, explored more fully in our third paper.
consumer credit, consumer law, bankruptcy law, financial markets regulation, Japanese Law, Asian Law, comparative law, law and society, law and culture
Abstract: This article compares the outbreak of mad cow disease (BSE) in Japan in 2001, and the regulatory response. It argues that such problems of growing scientific uncertainty amidst heightened safety expectations is best addressed by bilateral or regional solutions. By contrast, regulation primarily at the national level tends to lead to regulatory capture, while regulation at truly transnational levels (such as the WTO) encounters more problems in both enforcement and legitimacy.
Product liability, regulated industries, enforcement of law
Abstract: Over the last two decades, there has been insufficient mutual interaction in research - and hence teaching - of Japanese law in Germany (Japanisches Recht), the English speaking world (especially the US), and Japan itself (Nihon-ho). This paper advocates building on, and combining, the respective strengths of these three bodies of scholarship: broad coverage and attention to black-letter law in Germany, innovative theoretical perspectives in the US, and the strong tradition of comparative law in Japan.
Japanese law, comparative law, Japan
Abstract: This paper critically assesses many issues that have arisen or become more visible since new postgraduate 'law schools' got underway in April 2004 in Japan, focusing on those in Kyoto - a major centre of learning. It re-emphasises serious design flaws in the original reform proposal but notes some more promising tendencies subsequently. It argues that the new system remains unstable and inherently problematic for teachers, students, and the broader community. The paper concludes by proposing more thoroughgoing reforms, driven more by educators and a broader array of stakeholders. An Epilogue reinforces these observations with a preliminary analysis of the results of the first new National Bar Examination open to students from Law Schools throughout Japan, announced in late 2006.
Japanese law, comparative law, legal education
Abstract: This article analyses the first widely reported judgment finding for plaintiffs under Japan's strict-liability Product Liability Law of 1994, modeled on European law. The judgment, appended in annotated translation, suggests that at least some judges have taken the cue from this new legislation to continue developing a more pro-active approach to consumer protection in Japan, evident particularly since the 1990s.
Product liability, Japan
Abstract: The paper 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. As in my survey of developments over 2008, readers can read through these topics sequentially, as I tried to link them to previous postings and therefore create a 'chain novel' narrative effect. But readers may prefer to jump around the topics in their own order of interest, especially as some postings were uploaded initially in response to particular developments (such as announcements for major consumer law and then arbitration law reforms in Australia).
Japanese law, Australian law, Asian law, bilateral relations, public policy and law reform, tourism, whaling, international trade law (WTO and FTA), arbitration, consumer law and financial markets regulation, social policy (labour law, multiculturalism), nationality law, legal profession
Abstract: Imagine a transnational regime with these institutional features: • Virtually free trade in goods and services, including a "mutual recognition" system whereby compliance with regulatory requirements in one jurisdiction (such as qualifications to practice law or requirements when offering securities) 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. • Virtually free movement of capital, underpinned by private sector and governmental initiatives. • Free movement of people, with permanent residence available to nationals from the other jurisdiction - not tied to securing employment. • Treaties for regulatory cooperation, simple enforcement of judgments (a court ruling in one jurisdiction being 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). • Government commitment to harmonising business law more widely, for example for consumer and competition law.
No, this is not necessarily the European Union (EU). These aspects characterise the Trans-Tasman framework built up between Australia and New Zealand, particularly over the last two decades. Sometimes this has been achieved through treaties (binding in international law), sometimes in softer ways (such as parallel legislation in each country), and sometimes even through unilateral abrogation of national sovereignty. Both countries are also now actively pursuing bilateral and now some regional Free Trade Agreements (FTAs), especially in the Asia-Pacific. So can these Trans-Tasman initiatives, and perhaps even some EU developments, provide a template for true “Asia Pacific Community” (beyond what Australian Prime Minister Kevin Rudd apparently has in mind) or an “East Asian Community” (as suggested by the new Japanese PM, Yukio Hatoyama)?
More generally, the Global Financial Crisis (GFC) is generating a reorientation of burgeoning Asia-Pacific production chains towards exports within the region, in conjunction with a reassessment of market liberalisation policies themselves. In light also of the limited economic benefits of bilateral and even regional Free Trade Agreements, compared to multilateral initiatives, we should be looking for ways to promote additional “free but fair” movement of capital, people, services and goods throughout our region. Collaboration in regulating consumer product safety, financial markets, environmental protection, labour standards and investment regimes are only some of many possibilities explored in this paper. A more holistic, systematic and balanced approach to negotiating true Economic Partnership Agreements (EPAs) would assist not only Australia and New Zealand, but also partner countries that are already erecting new socio-economic regional architecture.
International trade law, WTO, FTAs, BITs, Asia-Pacific, Australia, New Zealand, Japan, European Union law, mutual recognition, services, consumer product safety, investment law, arbitration, immigration and nationality law, enforcement of judgments, judicial cooperation
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