Category: Dispute resolution

Australia’s (Dis)Engagement with Investor-State Arbitration: A Sequel

A seminar held on 10 November 2022 during the Australian Arbitration Week, organised by the UNCITRAL National Coordination Committee for Australia (UNCCA) and hosted by Allens in Melbourne, discussed “Australia’s engagement in the ISDS [investor-state dispute settlement] reform process”. My presentation divided successive governments’ approach into three significant eras over the last decade or so: anti-ISDS (2011-13), case-by-case ISDS (2014-21), and uncertainty (2022-).

Some of the uncertainty in this current third era has dissipated since the seminar. On 14 November Australia’s current Trade Minister Dan Farrell declared that the new Labor Government “will not include ISDS in any new trade agreements” and would attempt to reduce their impact in existing agreements. On the latter point, he stated that “when opportunities arise, we will actively engage in processes to reform existing ISDS mechanisms to enhance transparency, consistency and ensure adequate scope to allow the Government to regulate in the public interest”. The announcement has already generated concern from commentators from the Business Council of Australia and legal practice, including Dr Sam Luttrell (who also presented at the UNCCA seminar). Below I locate the Trade Minister’s announcement in context and sketch some implications, drawing partly on my 2021 book of selected essays on investor-state and commercial arbitration, focusing on Australia and Japan in regional and global contexts. 

Before this sequel, in the first era beginning in 2011, the centre-left (Labor/Greens) Gillard Government had declared that Australia would no longer agree to any form of ISDS in future bilateral investment treaties (BITs) or FTA investment chapters. That stance derived partly from the Productivity Commission’s recommendation (by majority) in its 2010 report into international trade policy more generally, which favoured more unilateral liberalisation measures and was skeptical about proliferating FTAs from a more laissez faire perspective. On ISDS provisions, the draft and then final reports asserted that there was no good evidence that offering them led to more FDI flows, Australian investors did not invoke investor-state arbitration, and ISDS could lead to “regulatory chill”. Additionally, the Gillard Government anti-ISDS policy from 2011 was driven by concerns from the political left about investment and trade liberalisation generally. It was probably also influenced by Philip Morris Asia initiating the first-ever ISDS dispute against Australia around this time, challenging Australia’s tobacco plain packaging legislation under the (then) BIT with Hong Kong. The anti-ISDS policy delayed conclusion of major FTAs with China, Korea and Japan, large exporters of capital to Australia which pressed for such provisions.

However, after the centre-right Coalition government won the election in late 2013, it reverted to the pre-2011 approach of agreeing to ISDS provisions on a case-by-case assessment. FTAs were soon concluded with China and Korea, including ISDS. The FTA concluded with Japan did omit ISDS, but probably because it did not offer Australia sufficient extra export market access or other benefits, at a time when the Coalition Government had difficulties passing legislation through the upper house of Parliament. Japan’s longer positive experience of investing in Australia also meant it could play the long game and seek ISDS-backed protections through other treaties, which it eventually achieved in fact through both countries ratifying the Comprehensive and Progressive Agreement for Trans-Pacific Partnership mega-regional FTA (CPTPP, in force for both states from 2019). The Labor Opposition voted with the Government to pass tariff-reduction legislation needed to ratify these ISDS-backed treaties, unlike the Greens, declaring the Labor Party’s continued opposition to ISDS but assessing the FTAs as overall in the national interest.

Additionally over this second era, the Coalition Government omitted ISDS in the PACER-Plus FTA with Pacific Island micro-states, given their limited inbound investment prospects and capacity as host states to defend ISDS claims; and in the Regional Comprehensive Economic Partnership (RCEP) ASEAN+5 FTA, probably because almost all pairs of its 15 member states have at least one ISDS-backed treaty among themselves anyway. The Coalition Government also renegotiated a few early FTAs and BITs (eg with Singapore, Uruguay and Hong Kong), replacing them with CPTPP-like provisions to clarify provisions or make them somewhat more pro-host-state in light of emerging investment treaty case law. It also solicited public submissions to inform a review of older treaties, although the Government did not then publish a report (let alone any Model BIT) formalising its evolving negotiating preferences. Australia further ratified the Mauritius Convention in 2020 to help retrofit transparency provisions on older treaties, although this will bite primarily only if other states also ratify the Convention and so far few have done so.

Australia’s renewed nuanced approach towards ISDS over 2014-21 may have been influenced by some (but not very strong) evidence, in Asia and more widely, that ISDS provisions do in fact have significant positive impacts on FDI flows. Also, ratifying investment treaties globally certainly impacted FDI, meaning that a minority of states increasingly holding out against all ISDS would have instead reduced ratifications and therefore FDI flows. Other empirical research, highlighted by Dr Sam Luttrell at the recent UNCCA seminar, adds that ISDS-backed treaties reduce the cost of syndicated loan finance for cross-border investors.

Luttrell’s presentation further reinforced how Australian investors (particularly in long-term resources projects) not only take into account ISDS protections but also started commencing outbound investor-state arbitrations under Australian treaties (or contracts) alleging host states have violated their substantive commitments. This is especially so since the successful White Industries v India award in 2010, which the Productivity Commission seems to have been been unaware of. Concerns about “regulatory chill” also seem to have declined as Australia defeated Philip Morris Asia on jurisdiction in 2015 (and Uruguay later defeated the parent company on the merits regarding its own tobacco packaging measures), and as no further inbound ISDS arbitrations were commenced against Australia. Nonetheless, perhaps because ISDS remained a live issue in parliamentary treaty ratification hearings and successive Coalition Governments did not control the upper House, Australia does not seem to have been particularly vocal in multilateral ISDS reform discussions in UNCITRAL or ICSID, although it has participated.

After Labor won the general election in May 2022, the new Government had not publically declared its policy approach towards ISDS, until the Trade Minister’s announcement on 14 November. At the UNCCA seminar the week before, I noted that the foreign ministry’s website still stated that Australia assesses ISDS on a case-by-case assessment. However, setting policy going into the election, the Labor Party’s 2021 National Platform had reiterated that “Labor will not enter into agreements that include ISDS provisions” (p9 para 45). In addition, it stated (p94, paras 33-34):


“Labor in government will review ISDS provisions in existing trade and investment agreements and seek to work with Australia’s trading partners to remove these provisions. While this process is underway, Labor will work with the international community to reform ISDS tribunals so they remove perceived conflicts of interest by temporary appointed judges, adhere to precedents and include appeal mechanisms.

Labor will set up a full time negotiating team within the Department of Foreign Affairs and Trade whose sole job will be to negotiate the removal of ISDS clauses …”

Until 14 November 2022, there had been no public announcement about any such initiatives.

* * *

Accordingly, at the UNCCA seminar, I pointed out that Australia’s major ongoing FTA negotiations involving investment were with India (with a provisional agreement reached only on trade related matters) and the European Union. India unilaterally terminated its BIT with Australia in 2017, as part of its broader policy of winding back protections for foreign investors since the White Industries award and successive claims against India under other older treaties. Although India’s new Model BIT from 2016 retains ISDS, it provides a narrow window and its substantive protections are heavily circumscribed, and India has been able to only conclude a few new investment treaties from this negotiating position. Even maintaining the second era’s case-by-case assessment policy, I therefore considered it quite possible that Australia and India could end up agreeing on a parallel investment treaty that leaves only inter-state arbitration, especially if India offered significant preferential market access to Australian investors.

Omitting ISDS is now the only possibility, under the newly announced Labor Government stance, but India now may not offer as much market access or other benefits to Australia. A better compromise, given problems encountered by foreign investors in India as well as JNU Prof Jaivir Singh’s empirical evidence that ISDS-backed treaties cumulatively have had positive impact on FDI inflows for India, could have been a CPTPP-like investment treaty with some further innovations. Those might include a mandatory mediation step before arbitration, as Australia agreed upon (unusually) with Indonesia in 2019 but not with Hong Kong.

Australia is also still negotiating an FTA with the EU. Since 2015, as a partly political compromise internally, the EU offers only an “investment court” alternative to traditional ISDS, on a take it or leave it basis. Singapore took this option, for example, but Japan did not (preferring to stick with pre-existing BIT with EU member states with traditional ISDS, and watching longer term multilateral reform discussions). Australia should probably take the investment court option, to secure an overall better FTA deal, as I have argued (with Prof Amokura Kawharu) also for New Zealand after it too from 2018 mimicked Australia’s first anti-ISDS policy. Arguably, this option is not “ISDS” so it would not conflict with the Labor Party’s 2021 platform and now the 14 November 2022 Labor Government’s anti-ISDS position. Although the EU’s investment court model allows foreign investors the right to directly commence arbitration, they cannot nominate arbitrators; they instead are pre-selected only by the home and host states, and then randomly assigned to hear the claim (and any appeal). If Australia adopts this interpretation of its stance eschewing ISDS, to conclude a deal with the EU, this would also signal to other regional players and UNCITRAL delegates that there is scope to be flexible in investment treaty negotiations.

However, one wild card for Australia has been that a right-wing politician and mining magnate (Clive Palmer) escalated complaints in 2020 by formally seeking consultations with the federal Government and then notifying a dispute through his Singaporean company (Zeph), after unsuccessful constitutional and other domestic law challenges. They allege expropriation and breach of fair and equitable treaty (denial of justice) related to Western Australian state legislation impacting on iron ore rights and related past domestic arbitration awards. Given his high public profile, and rights originally held by his Australian company being transferred to Zeph in Singapore, if and when an ISDS arbitration is commenced (potentially from early 2023) under one of Singapore’s multiple treaties with Australia, this risks another Philip Morris Asia moment. An arbitration filing would certainly rekindle media and political interest in ISDS, which peaked in Australia over 2010-16.

In addition, concerns were reportedly being raised last week about potential ISDS claims brought by Asian and other investors and in Australian gas resources under the Labor Government’s plans to deal with the global energy crisis. Announcing now a renewed anti-ISDS policy may help pre-empt public criticisms in this respect as well. However, any such claims would be preserved under existing treaties, while substantive commitments made under Australia’s treaties (especially FTAs) anyway give the host state considerable scope to introduce emergency measures.

Whatever the impact of these potential claims on its policy-makers, Australia’s renewed anti-ISDS posture will make it even more difficult for RCEP to add ISDS protections, unless the Labor Government backtracks or loses the next elections in 2025. ISDS must be discussed again among member states within 2 years of RCEP coming into force, with a decision then on whether and how to add ISDS to be reached within another 3 years (Art 10.18). Any implications for Australia’s recently concluded review of its FTA with New Zealand and Australia have yet to be spelled out. In addition, the new Labor Government policy will probably have further ripple-on effects particularly across the Asia-Pacific region. It could also potentially impact on wider multilateral discussions about ISDS in UNCITRAL, and even on the “modernisation” of or withdrawal from the ISDS-backed Energy Charter Treaty (which Australia signed in 1994 but never ratified), especially if the Australian government can articulate more specifically the arguments and evidence for adopting this renewed anti-ISDS position.

Commercial Dispute Resolution and Arbitration in Japan

Written by: Luke Nottage and Nobumichi Teramura (unfootnoted draft for Sarah Biddulph and Kathryn Taylor (eds) Elgar Concise Encyclopedia of Asian Law, Elgar, forthcoming)

 “Commercial Dispute Resolution and Arbitration in Japan”

For: Elgar Concise Encyclopedia of Asian Law

Luke Nottage and Nobumichi Teramura

1. Civil Procedure and Litigation

The Civil Procedure Code, enacted as the framework for civil litigation in the late 19th century as Japan adopted a modern Western legal system, derived mainly from German law. The Code  experienced significant reforms after WW2 (adopting the more “adversarial principle”) and 1998 (based partly on some emerging court practices, to streamline identification of legal issues and related evidence-taking, as well as new small claims procedures and other provisions to reduce delays).[1] The 1999-2001 Justice System Reform Council Recommendations resulted in introducing expert commissioners to advise judges in complex cases, an advance notice of suit option, and other “micro”-level reforms, but also expanded numbers of bengoshi lawyers and judges aiming for “macro”-level impact.[2] Those Recommendations sought mainly to reduce perceived “structural barriers” to initiate lawsuits, which arguably underpin a comparatively low civil litigation rate in Japan especially over the 1950s-70s. However, some instead argue that this low propensity to sue is related to “cultural” factors like preferences to avoid confrontation and fear of “losing face” (although this may be related to risk-averseness especially in larger organisations), or a rational avoidance of litigation costs by settling in the shadow of comparatively predictable substantive law in Japan.[3]

Japan’s still predominantly civil law tradition means that civil litigation maintains various features not usually found in common law systems. These include limited pre-trial discovery (although some analogues[4]), non-continuous trials (though delays decreased from 2000s), no juries (only for some serious criminal cases, reintroduced from 2009), active case management by judges (including right not duty to “clarify” the law especially for self-represented litigants, and encouragement of settlement), three career judges hearing complex civil cases at first instance, and no dissenting opinions published (other than in the highest Supreme Court).[5]

2. Mediation

In Japan, mediation is mostly court-annexed, with tradition going back to the pre-WW2 era (eg farm tenancy disputes,[6] although such disputes were often settled through direct and informal negotiations between land owners and tenants). Parties may choose between two main types of mediation. One is conducted by the judge(s) assigned the case, although in larger courts like Tokyo and Osaka, the case may be referred to a division where mediation is attempted by other judges, and then returned to the original judge(s) if settlement fails. The second type is mediation under the 1951 Civil Conciliation Act, mandated by the court or more typically agreed by parties: a conciliation committee consisting of a judge and two non-judges having expert knowledge and experience lead the mediation settlements. In both scenarios, it is quite common among the judicial mediators to caucus separately with each party (unlike eg Germany, where judges encourage settlement in open court).[7]

The government also provides mediation service. For instance, some formal government-supported mediation is available, eg for environmental pollution or neighbourhood disputes (eg noise),[8] or recently for financial institutions.[9] Informal government-supported mediation schemes are available too for consumer disputes, through Consumer Lifestyle Centre. The government also promoted criteria (such as independence of formal mediators from any industry associations) for Product Liability (PL) ADR Centres, created from the mid-1990s.[10]

Due to very high public trust in the court-annexed and government-supported schemes, government financial support for them and perhaps still comparatively fewer disputes, Japan has less privately-supplied mediation services. The Justice Reform Council perceived this as another structural barrier, so the 2004 Act on Promotion of Use of Alternative Dispute Resolution encouraged private mediation through government certification to build trust and visibility, allowing such organisations to make limitation periods tolled during their mediations (unlike non-certified mediation suppliers).[11] Many got certified, both some old institutions (like Bar Associations providing mediation services) and quite a few new ones (such as Japan Sport Arbitration Agency),[12] but caseloads have not increased much especially for commercial dispute resolution.[13]

3. Arbitration

Arbitration legislation was also initially also derived originally from Germany: the arbitration section in its Civil Procedure Code also from the late 19th century. This legislation remained basically unchanged in Japan’s 1998 civil procedure reform, despite an earlier push from academics to adopt the 1985 UNCITRAL Model Law template that was starting to spread especially around the Asia-Pacific region. Arbitration was seen as less important compared to improving the civil litigation and mediation environment because it was little used domestically (except eg a scheme for disputes between construction companies and the government).[14] For international transactions, Japanese commercial parties seemed quite content to agree to arbitration in foreign seats, perhaps in exchange for other benefits received in contract negotiations. Part of the thinking may also have been they were unlikely to get involved in (expensive) formal dispute resolution and, in particular, to initiate claims. Hence some Japanese parties and their legal advisors established the comparatively unusual practice of “finger-pointing clauses” in arbitration agreements, designating the defendant’s domicile as the seat of arbitration.

Accordingly, the caseloads of the Japan Commercial Arbitration Association (JCAA) and Tokyo Maritime Arbitration Commission (TOMAC), as well as other international arbitrations with seat in Japan (eg under the ICC Arbitration Rules or ad hoc UNCITRAL Arbitration Rules), remained few even over 2000s, while Asian centres in Singapore, China and HK recorded large increases in arbitration cases. Nevertheless, more foreign counsel and arbitrators joined the arbitration market especially after the 2003 reform of the Act on Special Measures Concerning the Handling of Legal Services by Foreign Lawyers (the Foreign Lawyers Act) that allowed full profit sharing with international firms established in Japan. There also remained a salient practice of Arb-Med, with arbitral tribunals actively encouraging settlement, especially when Japanese parties, counsel and/or arbitrators were involved.[15]

As part of Justice System Reform Council Recommendations, however, the 2003 Arbitration Act was enacted based on the 1985 UNCITRAL Model Law. Some tweaks to that template included extending it from international to domestic arbitration cases (hence, allowing no appeals for errors of law), adding criminal sanctions for corrupt arbitrators (to build trust in arbitration), and requiring express written consent from parties for Arb-Med (given natural justice concerns). Case law has been generally pro-arbitration, enforcing most foreign arbitral agreements and awards in accordance with the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.[16] However, not many judgments, including those related to international arbitration, are translated into English. Few judges give speeches promoting Japan as a seat for arbitration or go on to become arbitrators after retirement — instead, most have been professors and (increasingly) local or foreign lawyers —  unlike in common law jurisdictions like Singapore or Australia where (former) judges play more active roles in promoting arbitration generally. JCAA and TOMAC did amend their Rules around the time of the 2003 Act and subsequently from time to time. However, they continued to mostly administer cases involving at least one Japanese party, without marketing their centres aggressively to see large increases in caseloads.[17]

Since 2018, nonetheless, we have witnessed an elevated political push for Japan to catch up with international competitors and become more of an international dispute resolution hub regionally. Along with the Japan International Mediation Centre (JIMC) Kyoto (an earlier academic / law society joint venture), the Japan International Dispute Resolution Centre (JIDRC) was established with government-supported facilities in Osaka and then Tokyo, with quite intense marketing despite the pandemic. A new Tokyo-based institution, International Arbitration Centre in Tokyo (IACT), focuses on intellectual property arbitration. These governmental initiatives prompted JCAA to enact three sets of new Rules from 2019. Amendments to allow more foreign law representation in foreign-related arbitrations seated in Japan.[18] Moreover, formal consultation was launched in 2020, albeit belatedly by Asia-Pacific standards, to revise the 2003 Arbitration Act along more of the lines of the 2006 UNCITRAL Model Law amendments especially on tribunal-issued interim measures.[19]  This is important especially for marketing Japan as a seat, although the 2003 Act had already anticipated a few provisions on interim measures that were being discussed in UNCITRAL and incorporated into their 2006 Model Law amendments.[20]

Those new public and private initiatives should help further reduce structural barriers to arbitrating in Japan, but it is still unlikely that arbitration will ever become popular for domestic dispute resolution. Moreover, it is too early to tell whether these efforts will make Japan a significantly more popular seat for international arbitrations.

[1] Yasuhei Taniguchi, ‘The 1996 Code of Civil Procedure of Japan-A Procedure for the Coming Century?’ (1997) 45 The American Journal of Comparative Law 767.

[2] Translated at https://japan.kantei.go.jp/policy/sihou/singikai/990612_e.html; Luke Nottage, ‘Civil Procedure Reforms in Japan: The Latest Round’ (2005) 22 Ritsumeikan Law Review 81,  available at SSRN: https://ssrn.com/abstract=837864.

[3] Masaki Abe and Luke Nottage, ‘Japanese Law’ in Jan Smits (ed), Elgar Encyclopedia of Comparative Law (3rd edn, Edward Elgar Publishing 2022), available at SSRN: https://ssrn.com/abstract=3672112 or http://dx.doi.org/10.2139/ssrn.3672112 .

[4] Andrew M. Pardieck, ‘Discovery in Japan’ (2021) 31 Indiana International & Comparative Law Review 61.

[5] See generally eg Shusuke Kakiuchi, ‘Access to justice in Japan’ (2007) Japanese Law Resources <http://www.asianlii.org/jp/other/JPLRes/2007/1.html> .

[6] Dimitri Vanoverbeke, Community and State in the Japanese Farm Village: Farm Tenancy Conciliation, 1924-1938 (Leuven University Press 2004). “

[7] Yasunobu Sato, Commercial Dispute Processing and Japan (Kluwer Academic Publishing 2001); Harald Baum, ‘Mediation in Japan. Development, Forms, Regulation and Practice of Out-of-Court Dispute Resolution’ in Klaus J. Hopt and Felix Steffek (eds), Mediation: Principles and Regulation in Comparative Perspective (Oxford University Press 2012).

[8] Mark D. West, ‘The Resolution of Karaoke Disputes: The Calculus of Institutions and Social Capital’ (2002) 28 The Journal of Japanese Studies 301 (demonstrating the success of the Internal Affairs Ministry’s Pollution Complaint Counsellor in dealing with noise complaints); Shiro Kawashima, ‘A Survey of Environmental Law and Policy in Japan’ (1994) 20 North Carolina Journal of International Law and Commercial Regulation 231; Luke Nottage, ‘The Cultural (Re)Turn in Japanese Law Studies’ (2009) 39 Victoria University of Wellington Law Review 755.

[9] Tomohiko Maeda and Andrew M. Pardieck, ‘ADR In Japan’s Financial Markets & the Rule of Law’ (2018) 10 Northeastern University Law Review 400.

[10] Luke Nottage and Yoshitaka Wada, ‘Japan’s New Product Liability ADR Centers: Bureaucratic, Industry, or Consumer Informalism?’ (1998) 3 Journal of Japanese Law 40.

[11] Aya Yamada, ‘ADR in Japan: Does The New Law Liberalize ADR From Historical Shackles or Legalize It?’ (2009) 2 Contemporary Asia Arbitration Journal 1.

[12] As of 9 April 2022, there are 163 certified organisations: Ministry of Justice, ‘The List of Certified ADR Providers [in Japanese]’ (n.d.)  <https://www.moj.go.jp/KANBOU/ADR/jigyousya/ninsyou-index.html> accessed 9 April 2022.

[13] James Claxton, Luke Nottage and Nobumichi Teramura, ‘Disruption as a Catalyst for International Dispute Services in Japan: No Longer Business as Usual?’ in Luke Nottage and others (eds), New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution (Wolters Kluwer 2021).

[14] Tatsuya Nakamura and Luke Nottage, ‘Arbitration in Japan’ in Shahla F. Ali and Tom Ginsburg (eds), International Commercial Arbitration in Asia (3rd edn, Juris 2013).

[15] Luke Nottage, International Commercial and Investor-State Arbitration: Australia and Japan in Regional and Global Contexts (Edward Elgar Publishing 2021), Chapter 4.

[16] Yasuhei Taniguchi and Tatsuya Nakamura, National Report for Japan (2019 through 2022), in Lise Bosman (ed), ICCA International Handbook on Commercial Arbitration (ICCA & Kluwer Law International 2020, Supplement No. 120, February 2022) at 36-39.

[17] Nobumichi Teramura and Luke Nottage, ‘Arbitration Reform in Japan: Reluctant Legislature and Institutional Challenges’ in Weixia Gu and Anselmo Reyes (eds), Arbitration Reform in Asia (Hart Publishing 2018).

[18] Junya Naito and Ryo Otobe, ‘The Act on Special Measures concerning the Handling of Legal Services by Foreign Lawyers —Recent Developments toward Internationalization’ (2020) 1 Japan Commercial Arbitration Journal 34.

[19] WeiJian Teo and Yusuke Iwata, ‘The Rise of Japan Arbitration: A Balance to the Common Law Forces of International Arbitration in Asia?’, (Kluwer Arbitration Blog, 6 July 2021) <http://arbitrationblog.kluwerarbitration.com/2021/07/06/the-rise-of-japan-arbitration-a-balance-to-the-common-law-forces-of-international-arbitration-in-asia/>.

[20] James Claxton, Luke Nottage and Nobumichi Teramura, ‘Developing Japan as a Regional Hub for International Dispute Resolution: Dream Come True or Daydream?’ (2019) 47 Journal of Japanese Law 109.

“Declining Professional Diversity in International Arbitration”

By: Dr Nobumichi Teramura (Assistant Professor, Universiti Brunei Darussalam; Affiliate, Centre for Asian and Pacific Law at the University of Sydney), Dr Luke Nottage (Professor of Law, University of Sydney; Special Counsel, Williams Trade Law) and Mr James Tanna (Research Assistant, University of Sydney)[1]

[Update: a version of this posting was published by Kluwer Arbitration Blog on 3 April 2022, associated presentations were then made eg at the ASLI conference in Tokyo and Lawasia conference in Sydney in 2022, and our chapter on which it is based has now been published in Shahla Ali et al (eds) Diversity in International Arbitration (Elgar, 2022)]

On 20 June 2016, the Australian Centre for International Arbitration (ACICA) signed the Equal Representation in Arbitration Pledge, to improve the profile and representation of women in arbitration.[2] Since then, we have witnessed the international arbitration (IA) community’s significant collective progress towards greater diversity, especially over the last few years. These initiatives include Racial Equality for Arbitration Lawyers (REAL), the Rising Arbitrators Initiative (RAI) and the appointment of first woman President of the ICC International Court of Arbitration. We should certainly celebrate this advancement of equality in race, age and gender, although the main beneficiaries of the diminishing gender gap are reportedly white women based in Europe or North America.[3]

In addition, we should be aware that the burgeoning debate seems to leave out discussion of a further area where diversity is lacking in the IA community – an analysis of professional diversity. While the key groups and publication outlets for IA are dominated nowadays by those practising primarily as full-time lawyers, there is hardly any awareness or sustained discussion about the limitations of overlooking diversity of professional backgrounds, perhaps partly because arbitration rules usually do not require arbitrators to have any specific experience, training or qualifications. Nonetheless, for example, the ACICA Guidance Note on the Appointment of Arbitrators prompts parties to consider ‘diversity and issues of equal representation, such as gender, age, geography, culture, ethnicity, and professional background of the arbitrator’.[4]

Involving more non-lawyer practitioners (NLPs, such as engineers, architects, accountants) or those who are primarily academics could significantly reduce the persistent formalisation in IA.[5] Expanding professional diversity could also lead to other benefits, including indeed more gender diversity, given that academia does not have the same non-linear remuneration structures for lawyers that disadvantage career progression for many women.[6] These and other issues associated with professional diversity are outlined in our recent research article entitled “Lawyers and Non-Lawyers in International Arbitration: Discovering Diminishing Diversity”.[7] That research article also empirically analyses the ways legal practitioners have come to prevail across the key nodes of influence within the IA sector. The rest of this blog post introduces our key empirical findings.[8]

Associations and Institutions Promoting Arbitration

First, we examined key groups that promote IA but do not themselves administer arbitration cases. The influential groups examined were the International Council for Commercial Arbitration (ICCA), the Chartered Institute of Arbitrators (CIArb) and the International Bar Association (IBA).

The ICCA Board as of September 2021 largely comprised individuals falling primarily in the category of practising “Lawyer” (84%), executives of “International or Arbitral Organisations” (IAOs, typically leaders within arbitral institutions) (5%), “Mixed” (typically those having multiple professional engagements) (5%) and “Academic” (4%, essentially full-time). We also examined the composition of ICCA Taskforces for all years: Lawyer (61%), IAOs (18%), lawyers and NLPs working in Litigation Finance (7%), Mixed (7%) and Academic (6%). Authors of entries in the Young ICCA Blog between 19 October 2010 and 17 February 2021 fell into the categories of Lawyer (86%), Academic (10%) and Mixed (2%). Analysis of presentations in ICCA Congresses and related chapters in the ICCA Congress Series over the last 30 years also indicated the growing prevalence of Lawyers (60% over the entire period) within ICCA publications, and in parallel reflecting only small proportions of IAOs (14%), Academic (12%) and Mixed (9%).

The lack of diversity in professional backgrounds was also salient in the other groups. For example, the vast majority of CIArb Board Members in 2021 were from the Lawyer category (78%), in contrast to NLPs making up 15% of the Board (despite the earlier influence of NLPs in CIArb until around the 1990s) and no members falling into the Academic category. Speakers in CIArb Webinars from July 2020 to March 2021 comprised Lawyers (75%), Academic (12%), NLPs (9%) and IAOs (2%).

Meanwhile, the data is comparable at the IBA. As for the committee membership for proliferating IBA instruments, such as the Evidence-Taking Rules, there was an even heavier prevalence of Lawyers (95%) although this was less surprising given that the IBA is essentially a global federation of lawyers’ associations. Similarly, for IBA webinars, mostly from 2020 but also some from 2021, 94% of the key participants were Lawyer; only 4% could be coded as IAOs, while 2% were Academic.

Arbitration Institutions and Their Leaders

Next, we analysed the international and regional arbitration institutions having high caseloads and/or those deemed reasonably representative of civil or common law traditions and geographical diversity. These were ACICA, the International Chamber of Commerce (ICC), London Court of International Arbitration (LCIA), the Swiss Arbitration Centre, the International Centre for Dispute Resolution (ICDR), the Singapore International Arbitration Centre (SIAC), the Hong Kong International Arbitration Centre (HKAIC), the China International Economic and Trade Arbitration Commission (CIETAC), the Asian International Arbitration Centre (AIAC), the Japan Commercial Arbitration Association (JCAA), the Korean Commercial Arbitration Board (KCAB), the Thai Arbitration Institute (TAI) and the newer Thai Arbitration Centre (THAC).

To discern professional diversity within the leadership of these arbitration centres, we looked overall at the membership of various Boards, Councils, Committees, Taskforces and Courts as of 2021. The combined analysis confirmed Lawyers’ predominance (76%), as well as the comparatively small ratios of NLPs (11%), Academics (6%) and IAOs (1%).[9] We further investigated speakers and moderators at webinars and conferences organised by those arbitration centres in 2020 and the first half of 2021: Lawyers (80% in 2020 and 83% in 2021), IAOs (8% and 4% respectively), Academics (5% and 6%) and NLPs (4% and 5%).   

Indicative Journals, Books and Blogs

We also considered major journals for international arbitration, complementing an earlier analysis of periodicals and other publications.[10] These were Arbitration International (associated with the LCIA), Arbitration: The International Journal of Arbitration, Mediation and Dispute Management (CIArb), Asian International Arbitration Journal (SIAC) and the Journal of International Arbitration (published by Wolters Kluwer). Again, the overall extent of Lawyer involvement was striking. Editors of these four journals as of September 2021 were mostly Lawyer (75%), although there were somewhat more Academic (22%) than say for the leadership of the arbitration institutions as examined above. Then, we examined all the discernible articles (other than book reviews) published in the four journals from the late 1980s, when three were being published and some debate emerged about the role of NLPs in arbitration.[11] Sampling the journals essentially at five-yearly intervals (in 1989, 1994, 1999, 2004, 2009, 2014 and 2019-21) gave the following proportions for authors: Lawyer (71%), Academic (19%), IAOs (2%), NLPs (4%) and Mixed (3%). Analysing authorship categories over time found that absolute numbers and proportions of articles written by Lawyers had grown, especially over 2000-2010.

We further studied editors and authors of influential books and blogs. For books, for example, we investigated the International Arbitration Law Library Series published by Wolters Kluwer, with 59 titles since 1993 when the first volume of the Series was published. Coding editors and authors of these volumes and individual chapters demonstrated the dominance of Lawyer (50%) although a significant minority were from Academic (39%). Other professions such as IAOs, NLPs and Mixed occupied relatively small proportions (3%, 2% and 6%, respectively). On blogs, our analysis concentrated on Kluwer Arbitration Blog (KAB), as one of the most well established and widely read arbitration-related blogs. Comparing the KAB’s editorial team for August 2021 and 2018 (the latest year for which the Wayback Machine online allowed us to access a snapshot of the list of all editors), 80% were Lawyers and 20% were Academics. In addition, we studied backgrounds of blog authors in February, June and November in 2009, 2014 and 2019-21. The sampling found a similar prevalence of postings by Lawyer (79%), some by Academic (16%) and very occasionally by authors from an IAO (2%).

Concluding Remarks

The phenomena confirmed by our empirical research are clear: the entrenchment of lawyers through the world of IA, and the corresponding decline in involvement and influence of full-time academics and especially other NLPs. This growing lack of diversity in professional backgrounds contrasts with gender diversity, which has experienced some statistical improvements in appointments of arbitrators or other leadership positions in some arbitration centres.[12] One response to that ongoing “diversity deficit” might be to encourage more involvement of academics and NLPs in the leadership and activities of the significant arbitration associations and centres, as well as leading publication venues.[13] Such a response will help the IA sector develop diversity of perspectives because, as Joshua Karton suggests, such diversity may be enhanced by arbitrators with varied experiences who may think differently from the arbitration mainstream.[14] At least, we need more discussion and ongoing debate about the remarkable and continuing decline in professional diversity within IA.

[1] This article is a version of Nobumichi Teramura, Luke Nottage and James Tanna, ‘Declining Professional Diversity in International Arbitration’, Kluwer Arbitration Blog (Blog Post, 3 April 2022) <http://arbitrationblog.kluwerarbitration.com/2022/04/03/declining-professional-diversity-in-international-arbitration/>,

[2] ACICA, ‘Media Release: Australian Centre for International Commercial Arbitration Signs Equal Representation in Arbitration Pledge’ (20 June 2016) <https://acica.org.au/wp-content/uploads/2016/06/Media-Release-Equal-Representation-in-Arbitration-Pledge.pdf>.

[3] Kiran Nasir Gore, ‘2021 In Review: Continued Strides in Favor of Diversity and Sustainable Development in International Arbitration’, Kluwer Arbitration Blog (Blog Post, 27 February 2022) < http://arbitrationblog.kluwerarbitration.com/2022/02/27/2021-in-review-continued-strides-in-favor-of-diversity-and-sustainable-development-in-international-arbitration/>.

[4] See <https://acica.org.au/wp-content/uploads/2022/01/ACICA-Guidance-Note-on-the-Appointment-of-Arbitrators-FF1.pdf> (emphasis added), available via <https://acica.org.au/acica-practice-procedures-toolkit/>.

[5] Nobumichi Teramura, Ex Aequo et Bono as a Response to the ‘Over-Judicialisation’ of International Commercial Arbitration (Wolters Kluwer, 2020).

[6] Claudia Goldin, Career and Family: Women’s Century-Long Journey toward Equity (Princeton University Press, 2021).

[7] Luke Nottage, Nobumichi Teramura and James Tanna, ‘Lawyers and Non-Lawyers in International Arbitration: Discovering Diminishing Diversity’ (September 2021) manuscript at <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3926914>. A shorter version of that paper is also forthcoming in Shahla Ali, Filip Balcerzak, Giorgio Fabio Colombo and Joshua Karton (eds), Diversity in International Arbitration: Why It Matters and How to Sustain It (Elgar, 2022).

[8] As elaborated in the research article, including the methodological Appendix, we basically categorised all individuals in accordance with their primary profession at the time they were a member of the relevant arbitral organisation, the relevant publication was written, or the relevant presentation was given.

[9] The proportion for ACICA was higher in 2021: see Luke Nottage, Nobumichi Teramura and James Tanna, ‘Lawyers and Non-Lawyers in International Arbitration: Discovering Diminishing Diversity’ (n 7) 24. Tracking its Board size and composition over time, see also Luke Nottage and Richard Garnett, “The Australian Centre for International Commercial Arbitration” in Helene Ruiz Fabri (gen ed) Max Planck Encyclopedia of International Procedural Law(Oxford University Press, 2019) via https://www.mpi.lu/mpeipro/.

[10] Luke Nottage, ‘International Arbitration and Society at Large’ in Andrea Bjorklund, Franco Ferrari and Stefan Kroll (eds), Cambridge Compendium of International Commercial and Investment Arbitration (Cambridge University Press, forthcoming 2022), manuscript at <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3116528>.

[11] The Asian International Arbitration Journal was published from 2005.

[12] ICCA, Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings (The ICCA Reports No 8, 2020).

[13] Andrea K Bjorklund et al, ‘The Diversity Deficit in International Investment Arbitration’ (2020) 21(2-3) The Journal of World Investment & Trade 410.

[14] Joshua Karton, ‘Diversity in Four Dimensions: Conceptualizing Diversity in International Arbitration’ (March 2022) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4054031>.

Developing Diversity within Diversity Discourse: Remembering Non-Lawyers in Arbitration, in Asia and Beyond

This is the title of a presentation (Powerpoints in PDF here) for the Lawasia conference in Sydney, specifically on 20 November 2022, and earlier the 28-29 May 2022 19th ASLI Asian Law Conference, hosted this year by the University of Tokyo. It is based on an empirical study by myself, ANJeL-in-ASEAN convenor Asst Prof Nobumichi Teramura, and USydney research assistant James Tanna. It adds some directly Asia-related data to the analysis presented in a forthcoming chapter in Shahla Ali et al (eds) Diversity in International Arbitration (Elgar, late 2022), with a longer paper available via SSRN and a posting summarising key empirical findings via Kluwer Arbitration Blog.

Our presentation also suggests that given the relative influence still of law professors in developing international arbitration in Asian states, particularly perhaps those more influenced by the civil law tradition, the large and growing dominance of full-time lawyers across the field may have a significant indirect impact on international arbitration in Asia.

Presentation Abstract: This paper, co-authored with Asst Prof Nobumichi Teramura (UBrunei) and James Tanna (USydney), highlights a curious lack of diversity within the proliferating discourse about the lack of diversity in international arbitration. There is hardly any awareness or at least sustained discussion about limited diversity of professional backgrounds, and more specifically the dominance nowadays of those with practising lawyer positions or primary careers – including more recently in Asia – across the key groups and publication outlets for international arbitration. Yet this encroachment of lawyers was still being contested in the 1990s, as being linked to burgeoning costs and delays, and such “formalisation” has been re-emerging in recent years. Diversifying the world of international arbitration to involve more non-lawyers, including academics, could promote various other objectives too, and thus enhance the legitimacy and sustainability of international arbitration.

This paper therefore analyses empirically the ways lawyers have come to dominate key nodes of influence within the world of international arbitration. We examine this worldwide and in the Asian region, thus also giving a sense of geographical diversity. Part I looks at lawyers in key general associations or organisations promoting international arbitration, including their leadership and presenters at symposiums. Part II focuses on various arbitration centres globally and regionally, which actually administer cases. Part III examines contributions to some key arbitration journals (including the Asian International Arbitration Journal), an influential book series, and a widely-read Blog. The conclusion reiterates that restoring more non-lawyers in the world of international arbitration should help not only to reduce formalisation and inefficiencies in international arbitration, but also have various other salutary effects, including potentially improving gender diversity.

Corruption and Illegality in Asian Investment Arbitration

Written by: Asst Prof Nobumichi Teramura (UBD-IAS, CAPLUS affiliate) and Luke Nottage

[Updates: I have co-authored draft introductory, concluding, Japan and Thailand chapters for this book agreed with Springer in their Asia in Transition series. Some or all were presented at a public conference held in Brunei on 29 May 2023 (booklet here) supported by ANJeL and CAPLUS, and at events in UFrankfurt and Heidelberg MPI in early July 2023. Earlier versions were presented at an invitation-only webinar for book contributors hosted by UBrunei on 15 June 2022, as well as at Griffith University’s Law Futures Centre on 21 July, NUS ISEAS on 22 September, and at Monash Law (Melbourne CBD) on 9 November 1-2pm.]

The Institute of Asian Studies at the Universiti Brunei Darussalam (UBD-IAS) has recently funded a conference volume project on this important topic, involving several professors from the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS).

The original proposal overview is further below; the final set of authors/chapters submitted to Springer in mid-2023 is as follows:

Foreword — Amokura Kawharu (President, New Zealand Law Commission)[1]

Introduction

  1. Bribery and Other Serious Investor Misconduct in Asian International Arbitration — Nobumichi Teramura (Asst Professor, Institute of Asian Studies (IAS) at Universiti Brunei Darussalam (UBD)),[2] Luke Nottage (Professor, Sydney Law School)[3] and Bruno Jetin (Associate Professor and Director, IAS at UBD)[4]

Part 1: The Economic Context of Corruption and Investment

  • Does Corruption Hinder FDI and Growth in Asia and Beyond? The Grabbing Versus Helping Hand Revisited — Ahmed Masood Khalid (Professor and Former Dean, School of Business and Economics at UBD)[5]
  • The Effect of Corruption on Foreign Direct Investment at the Regional Level: Positive or Negative Relationship? — Bruno Jetin, Jamel Saadaoui (Senior Lecturer, University of Strasbourg)[6] and Haingo Ratiarison (University of Strasbourg)[7]

Part 2: General Legal Issues from the Interface of Corruption, Illegality and Investment Arbitration

  • Anti-Corruption Laws and Investment Treaty Arbitration: An Asian Perspective — Anselmo Reyes (International Judge, Singapore International Commercial Court)[8] and Till Haechler (Bar Exam Candidate, Supreme Court Canton of Zurich)[9]
  • Multi-Tiered International Anti-Corruption Cooperation in Asia: Treaties Review and Prospects — Dr Yueming Yan (Asst Professor, Faculty of Law at the Chinese University of Hong Kong)[10] and Tianyu Liu (LLM Candidate, Leiden University)[11]
  • Corruption in International Investment Arbitration — Michael Hwang (Senior Counsel and Director, Michael Hwang Chambers LLC)[12] and Aloysius Chang (Senior Associate, Watson Farley & Williams)[13]
  • Rebalancing Asymmetries between Host States and Investors in Asian ISDS: An Exception for Systemic Corruption — Martin Jarrett (Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law)[14]

Part 3: Country Reports

  • Foreign Investment, Investment Treaties and Corruption in China and Hong Kong — Vivienne Bath (Professor, Sydney Law School)[15] and Tianqi Gu (PhD candidate, Sydney Law School)[16]
  • Corruption and Investment Treaty Arbitration in India — Prabhash Ranjan (Professor and Vice Dean, Jindal Global Law School)[17]
  • Corruption and Illegality in Asian Investment Disputes: Indonesia — Simon Butt (Professor, Sydney Law School),[18] Antony Crockett (Partner, Herbert Smith Freehills)[19] and Tim Lindsey (Professor, Melbourne Law School)[20]
  • Foreign Investment, Treaties, Arbitration and Corruption: Comparing Japan — Luke Nottage and Nobumichi Teramura
  • Corruption and Investment Arbitration in the Lao People’s Democratic Republic: Corruptio Incognito — Romesh Weeramantry (Counsel, Clifford Chance)[21] and Uma Sharma (Litigation Associate at TSMP Law Corporation)[22]
  • Corruption and Illegality in Asian Investment Arbitration: The Philippines — Thomas Elliot A Mondez (Court Attorney, Court of Appeals in the Philippines)[23] and Jocelyn Cruz (Chair, Commercial Law Department at De La Salle University)[24]
  • Investment Arbitration, Corruption and Illegality: South Korea — Joongi Kim (Professor, Yonsei Law School)[25]
  • Foreign Investment, Corruption, Investment Treaties and Arbitration in Thailand — Sirilaksana Khoman (Professor of Economics, Thammasat University; Member, National Anti-Corruption Commission)[26] Luke Nottage, Sakda Thanitcul (Professor, Chulalongkorn Law School),[27]

Conclusions

  1. Towards a More Harmonised Asian Approach to Corruption and Illegality in Investment Arbitration— Nobumichi Teramura, Luke Nottage and Bruno Jetin

[1] https://www.lawcom.govt.nz/commissioner-profile/amokura-kawharu

[2] https://ias.ubd.edu.bn/nobumichi-teramura/

[3] https://www.sydney.edu.au/law/about/our-people/academic-staff/luke-nottage.html

[4] https://ias.ubd.edu.bn/bruno-jetin/

[5] https://ubd.edu.bn/menu/staff-directory/2017/04/20/dr.-ahmed-masood-khalid/

[6] https://www.jamelsaadaoui.com/

[7] https://www.linkedin.com/in/haingo-ratiarison-20a2b21bb/?originalSubdomain=fr

[8] https://www.sicc.gov.sg/about-the-sicc/judges

[9] https://www.linkedin.com/in/till-haechler-b09b051b6/?locale=es_ES

[10] https://www.law.cuhk.edu.hk/app/people/prof-yueming-yan/

[11] https://www.linkedin.com/in/tianyuliu521/?originalSubdomain=cn

[12] https://www.mhwang.com/

[13] https://www.wfw.com/people/aloysius-chang/

[14] https://www.mpil.de/en/pub/institute/personnel/academic-staff/mjarrett.cfm

[15] https://www.sydney.edu.au/law/about/our-people/academic-staff/vivienne-bath.html

[16] https://www.linkedin.com/in/tianqi-gu-115921228/?originalSubdomain=au

[17] https://jgu.edu.in/jgls/prof-dr-prabhash-ranjan/

[18] https://www.sydney.edu.au/law/about/our-people/academic-staff/simon-butt.html

[19] https://www.herbertsmithfreehills.com/our-people/antony-crockett

[20] https://law.unimelb.edu.au/about/staff/tim-lindsey

[21] https://www.cliffordchance.com/people_and_places/people/lawyers/sg/romesh_weeramantry.html

[22] https://www.linkedin.com/in/umajsharma/?originalSubdomain=sg

[23] https://www.linkedin.com/in/elliot-mondez-518271128/?originalSubdomain=ph

[24] https://www.linkedin.com/in/jocelyn-cruz-4b119719a/?trk=public_profile_browsemap_profile-result-card_result-card_full-click&originalSubdomain=ph

[25] https://uic.yonsei.ac.kr/main/academic.asp?mid=m03_01_02&act=view&uid=849&keyword=

[26] https://www.americanconference.com/speakers/dr-sirilaksana-khoman/

[27] https://www.law.chula.ac.th/en/profile/5496/

* * *

Bribery and other serious illegal behaviour by foreign investors are widely condemned in any society. The problem is that people seem not to have reached a consensus on the consequences of corruption and illegality in international investment and especially in investment arbitration – a transnational procedure to resolve disputes between a foreign investor and a host state. A core issue is whether a foreign investor who violated a host state’s law would be awarded protection of its investment, as per its contract with the host state and/or the applicable trade or investment agreement between the home state and the host state. Some suggest such protection would be unnecessary, as the investor committed a crime in the host state, while others attempt to establish an equilibrium between the investor and the host state. Some others claim to protect investment, invoking the sanctity of promises made. This research explores ‘Asian’ approaches toward the issue, considering the extent to which significant states in Asia are likely to become ‘rule makers’ rather than ‘rule takers’ regarding corruption and serious illegality in investor-state arbitration. To this end, we will employ a comparative method, inviting scholars from the Asia-Pacific region, including UBD-IAS and other institutions.

The Principal Investigator is Dr Nobumichi Teramura, the Co-Principal Investigator is Assoc Prof Bruno Jetin (UBD-IAS Director), Luke Nottage (appointed also now a Visiting Professor at UBD) is another contributor and the others are listed below. Many have previously worked together on related Asia-focused projects, notably their co-edited volume with Shahla Ali on New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution (Wolters Kluwer 2021) and Luke Nottage’s book co-edited with Julien Chaisse on Investment Treaties and International Arbitration Across Asia (Brill, 2018; expanding on country reports from a 2017 JWIT special issue on ASEAN with Prof Sakda Thanitcul as joint special editor and supported by the Sydney Southeast Asia Centre).

This new project’s primary purpose is to examine Asian approaches and case studies regarding corruption and serious illegality in international investment arbitration. It focuses on corruption-related disputes between private parties and public sector entities. It also covers other serious illegal conduct by foreign investors  related to or broadly equivalent to corruption and bribery, including serious non-compliance with key provisions of national laws regulating the admission or operation of foreign investment.

Regional free trade agreements such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the Regional Comprehensive Economic Partnership Agreement (RCEP Agreement) mandate member states to combat corruption and other illegal conduct. However, they remain silent on how specifically to deal with public-private disputes arising from corruption and illegality. Trade and investment law experts have become well aware of the problem, and some suggest treaty reforms even at a global level. Against this backdrop, the research aims to accumulate Asian perspectives, for Asia to build the foundation of leading the next rounds of treaty reforms. In particular, it intends to address the following questions:

  1. Whether Asia has been and will remain ‘ambivalent’ about international law prohibiting corruption and illegality. How have Asian countries been combatting corruption and other illegal activities particularly as to foreign investment? What laws and rules exist, and how do they operate in respective jurisdictions? What are the recent developments?
  2. Whether and how Asian countries have dealt with corruption and illegality in relation to foreign investment projects. If they have faced any international investment cases, what are the outcomes and consequences?
  3. Whether Asian countries have been or are more likely to become ‘rule makers’ rather than ‘rule takers’ in international investment law (as explored generally in the Brill and Wolter Kluwers books mentioned above) regarding corruption and illegality.

Those questions will support us to achieve the central objective: to examine Asian approaches toward  corruption and illegality in international investment arbitration. As we enter an age in which Brunei is increasing its engagement with foreign companies, it is probable that there will be disputes that need to be arbitrated, and corruption and illegality in investment arbitration are issues which other countries in the region are already facing. This research project will help the Bruneian authorities and the academic community, and counterparts in other Asia-Pacific jurisdictions as well as further afield especially when engaging with this region, learn more about such topical issues and potential counter-measures.

More specific expected outcomes include:

  1. One international online research workshop in mid 2022 and one international symposium in early 2023 (depending on pandemic travel restrictions), both in Brunei, for the contributors to present their papers and exchange opinions.
  2. An edited volume in the IAS-Springer Book Series on “Asia in Transition” based on the research papers by the contributors. (A further grant will be applied for to assist with related copy-editing etc, and CAPLUS interns and other Sydney Law School resources will assist particularly with the chapters authored by CAPLUS members.)
  3. A journal article co-authored by Professor Nottage, A/Professor Jetin and Dr Teramura for a Q1 Scopus journal.

Contributors based at UBD:

Name and FICsDescription of contribution
Dr Nobumichi TERAMURA (UBD-IAS)Principal Investigator – general editor and author of chapters for the edited volume in the IAS-UBD “Asia in Transition” series
Associate Professor Bruno Jetin (UBD-IAS)Co-Principal Investigator – general editor and author of chapters for the edited volume in the IAS-UBD “Asia in Transition” series
Yang Amat Mulia Pengiran Indera Negara Pengiran Anak Haji Puteh ibni Al-Marhum Pengiran Pemancha Pengiran Anak Haji Mohamed AlamGeneral contributor (re corruption, investment, arbitration and the Asia-Pacific) and author of the forewords of the edited volume
Professor Ahmed Masood Khalid (UBD-SBE)Contributor (re business and corruption)
Dr Masairol Bin Haji Masri (UBD-SBE)Contributor (re business and corruption)
Dr Hammeed Abayomi Al-Ameen (UBD-SBE)Contributor (re business law and corruption)

Other Contributors:

Professor Luke NottageUniversity of Sydney, Australia (CAPLUS Associate Director); UBD (visiting professor)Co-organiser – general editor and author of chapters for the edited volume in the IAS-UBD “Asia in Transition” series
Dr Colin Ong QCArbitration Association of Brunei Darussalam; and Colin Ong Legal ServiceContributor (re standard of proof for corruption allegations)
Professor Sakda ThanitculFaculty of Law, Chulalongkorn University, ThailandContributor (re Thailand)
Professor Sirilaksana KhomanFaculty of Economics, Chulalongkorn University; National Anti-Corruption Commission (NACC), ThailandContributor (re Thailand)
Mr Antony CrockettHerbert Smith Freehills, Hong KongContributor (re Indonesia)
Professor Simon ButtUniversity of Sydney (CAPLUS Co-Director)Contributor (re Indonesia)
Professor Romesh WeeramantryNational University of Singapore; Clifford ChanceContributor (re Lao Republic)
Justice Anselmo ReyesSingapore International Commercial CourtContributor (re corruption regulations for economic warfare)
Professor Vivienne BathUniversity of Sydney (former CAPLUS Director)Contributor (re China and Hong Kong)
Professor Joongi KimYonsei Law School, South KoreaContributor (re South Korea)
Professor Dai TamadaKyoto University, JapanContributor (re Japan)
Dr Prabhash RanjanSouth Asian University, IndiaContributor (re India)
Dr Martin JarrettMax Planck Institute, Heidelberg, GermanyContributor (re general investment law and investor misconduct)
Professor Tim LindseyUniversity of Melbourne, AustraliaContributor (re Indonesia)
Dr Jocelyn CruzDe La Salle University, the PhilippinesContributor (re the Philippines)

Publications and Webinars on Asia-Pacific arbitration and ISDS

On 23 March 2022 Kyoto University awarded Luke Nottage an LLD by publications for his book of selected/updated and some new essays on International Commercial and Investor-State Arbitration: Australia and Japan in Regional and Global Contexts (Elgar, 2021). In addition, a Transnational Dispute Management report of (Young-OGEMID listserv) Q&A about the book was published in February 2022.

On 2 March 2022 Prof Luke Nottage joined Dr Michael Hwang SC (Singapore), Neil Kaplan CBE QC SBS (Hong Kong), Hafez Virjee (Paris) for a public webinar entitled “Between Theory and Practice”, discussing the development of international arbitration particularly in the Asia-Pacific region and the place of Australian practitioners in this global market: watch the recording here. The webinar also discussed the benefits of pursuing international arbitration as an elective course, in the context of the large range of international arbitration materials made available to Sydney Law School students and staff through the Delos Dispute Resolution platform thanks to a subscription donated by Dr Hwang.

On 25 February Luke Nottage was interviewed for a podcast recording by a Bosnia-based association for arbitration, discussing the hot topic of transparency vs confidentiality particular in investor-state dispute resolution. Below is the outline of key points discussed.

In addition, Luke Nottage spoke on ISDS and investment treaties at the UoW Transnational Law and Policy Centre‘s co-hosted symposium on topics being negotiated in the Australia-India FTA (recording here), focusing on mandatory mediation before investors arbitrate disputes, and was then invited to speak on ISDS reform more generally for a symposium hosted by the Indian government’s Centre for Trade and Investment Law.

Some of Luke Nottage’s related recent publications include an overview chapter for a new book on the Asian Turn in Foreign Investment, an econometric analysis of ISDS-backed treaties on FDI flows, international arbitration and society at large (in the new Cambridge Compendium), professional diversity in international arbitration, and a review forthcoming in the Australian Law Journal of a new book on International and Australian Commercial Arbitration.

* * *

25 February 2022 webinar on Transparency in ISDS:

  • Pros and cons of transparency in international arbitration generally?
    • Fewer costs and delays in procedures and award-writing if procedure limited to the parties/counsel and arbitrators, not wider public
    • vs leads to more info asymetries in this market for services (arbitrators, especially lawyers, even expert witnesses) hence potential costs and delays: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2987674
    • If diminishing net cost savings, even in intl commercial arbitration, less attractive balance from rule of law perspective, undermining legitimacy of international arbitration compared to (more public) litigation – see (Menon CJ article, quoted in my JoIA article on ACICA Rules 2021 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3931086: incidentally, those don’t relax confidentiality but do require disclosure of third-party funders)
    • Especially in investor-state arbitration, given its inherent greater public interests, and growing media attention (and polarisation)
  • Current regime:
    • Already considerable (surprising) transparency in ISA re awards (2/3): https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3227401 **
    • ICC Rules (mostly an ICA org, occasionally ISA): no confidentiality imposed on parties
    • ICSID Convention / Rules (2/3 of ISA cases): likewise, but eg „shall promptly“ publish „excerpts of legal reasoning“ in awards, need consent of parties for full award (or leak!)
    • Ad hoc arb UNCITRAL Rules (eg 2010): likewise, can publish awards if parties consent, arbitrator discretion re other transparency (eg Philip Morris v Australia procedural order)
      • Revised 2013 for transparency in all treaty-based arbs, then 2014 Mauritius Convention to extend transparency to pre-2014 treaties (whether UNCITRAL or other Rules)
  • The recent amendments of investment arbitration rules (most notably ICSID) and dispute resolution clauses in IIAs [eg] to allow third-party submissions.
    •  ICSID already in 2006 had amended its Rules for Convention and AF cases to somewhat expand confidentiality – https://icsid.worldbank.org/resources/rules-and-regulations/amendments/about
    • Recently decided further ICSID Rules revisions (since late 2016) align AF Rules (which also now can be adopted even without any party being member of the ICSID Convention) with expansive transparency across all stages as in UNCITRAL Rules; plus for ICSID (Convention states) Arb Rules eg at https://icsid.worldbank.org/resources/rules-amendments
      • [Proposed Rule 62] Automatic publication of award if 60 days pass and no objection lodged by a party (cf earlier debate that such „deemed consent“ too incompatible with Convention, which would need to be then amended but too many member states!)
      • [Rule 63] Publish excerpts of legal reasoning re decisions other than awards, eg on jurisdiction (eg recently under Australia-Egypt BIT: do treaties providing that a host state „shall“ consent to ISA provide advance consent to that procedure? Earlier see my https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2424987)
      • [Rule 64] publish other docs lodged (eg party submission) also if agreed by parties or tribunal discretion / weighing
      • [Rule 65] shall allow non-parties to attend hearings (and publish transcript or recording) unless a party objects
      • [Rule 66] but subject to redaction etc for „confidential information“ (listed types below)
      • [Rule 67] expanded provisions so tribunals MAY allow submissions etc by „non-disputing parties“ eg amicus curiae – text below bolded
      • [Rule 68] provisions so tribunals SHALL allow „non-disputing treaty parties“
  • Tension between the transparency concerns expressed by the States in the context of ISDS and the lack of actual application of the transparency rules in practice. 
    • Yet only 9 ratifications of Mauritius Convention, few of the big players (eg Canada 2016, Switzerland 2017, Australia 2020 alongside review of old BITs – but no public report!): lose control / treaty negotiating leverage? Prefer incorporating tailored regime in treaties, anyway need to do so (Rules options provided, and/or amendments) for post-2014 treaties as Mauritius Convention doesn’t apply to those
    • Some host states have been reticent about too much transparency, including in treaty (re)drafting or UNCITRAL reform deliberations: exposes their (even alleged) poor governance (hence many investors favour transparency, potentially even encouraging settlement: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2065636), impede settlement (only partly empirically justified? ** and see further Ubilava at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3352181), more costs and delays (arguments over exceptions to transparency: Prof Zachary Douglas at https://www.claytonutz.com/ialecture/previous-lectures/2020)
  • Impact of legal tradition and culture on the approach to transparency in ISDS?
    • Less determined by say civil vs common law tradition, more eg socialist law / governance (eg Vietnam etc haven’t even ratified ICSID Convention, Chinese treatise were slow to incorporate much transparency) or developing country status (eg India?)
    • Culture might have some (small) impact: surveys etc show Eastern parties / counsel see confidentiality as advantage over litigation compared to Western, more generally think of eg https://en.wikipedia.org/wiki/The_Farewell_(2019_film) ?
  • Possible solutions to the improvement of transparency, while maintaining the benefits of confidentiality that the parties desire
    • States party should try to agree in treaties in advance
    • or during proceedings (but then host state and investor, and often acrimonious generally)
    • Otherwise, tribunals and counsel need to be aware of the competing interests, pros and cons of transparency (especially for costs and delays) as discussed above, when weighing whether and how to allow disclosures.

New ICSID (Convention) Arbitration Rule 66

Confidential or Protected Information

For the purposes of Rules 62-65, confidential or protected information is information

which is protected from public disclosure:

(a) by the instrument of consent to arbitration;

(b) by the applicable law or applicable rules;

(c) in the case of information of a State party to the dispute, by the law of that State;

(d) in accordance with the orders and decisions of the Tribunal;

(e) by agreement of the parties;

(f) because it constitutes confidential business information or protected personal

information;

(g) because public disclosure would impede law enforcement;

(h) because a State party to the dispute considers that public disclosure would be

contrary to its essential security interests;

(i) because public disclosure would aggravate the dispute between the parties; or

(j) because public disclosure would undermine the integrity of the arbitral process.

Rule 67

Submission of Non-Disputing Parties

(1) Any person or entity that is not a party to the dispute (“non-disputing party”) may

apply for permission to file a written submission in the proceeding. The application

shall be made in the procedural language(s) used in the proceeding.

(2) In determining whether to permit a non-disputing party submission, the Tribunal

shall consider all relevant circumstances, including:

(a) whether the submission would address a matter within the scope of the dispute;

(b) how the submission would assist the Tribunal to determine a factual or legal

issue related to the proceeding by bringing a perspective, particular knowledge

or insight that is different from that of the parties;

(c) whether the non-disputing party has a significant interest in the proceeding;

(d) the identity, activities, organization and ownership of the non-disputing party,

including any direct or indirect affiliation between the non-disputing party, a

party or a non-disputing Treaty Party; and

(e) whether any person or entity will provide the non-disputing party with financial

or other assistance to file the submission.

(3) The parties shall have the right to make observations on whether a non-disputing

party should be permitted to file a written submission in the proceeding and on any

conditions for filing such a submission.

(4) The Tribunal shall ensure that non-disputing party participation does not disrupt the

proceeding or unduly burden or unfairly prejudice either party. To this end, the

Tribunal may impose conditions on the non-disputing party, including with respect

to the format, length, scope or publication of the written submission and the time

limit to file the submission.

(5) The Tribunal shall issue a reasoned decision on whether to permit a non-disputing

party submission within 30 days after the last written submission on the application.

(6) The Tribunal shall provide the non-disputing party with relevant documents filed in

the proceeding, unless either party objects.

(7) If the Tribunal permits a non-disputing party to file a written submission, the parties

shall have the right to make observations on the submission.

** “… around 85% of cases where either the investor or the state have won are fully Public, and almost all the rest are only Partly Confidential. For settled cases, as italicised, 41% are Public or Partly Confidential.  This suggests that minimising costs and delays through early settlement may often be facilitated by keeping the outcome at least partly private, but not necessarily in all situations.”

“International and Australian Commercial Arbitration” – Book Review

[Update: this review was published in 96 Australian Law Journal 369-71 (2022).]

This [new book analysing a field also important to Japan and other Asia-Pacific jurisdictions (LexisNexis, 2022, xii +735pp: ISBN 9780409353075, Paperback $185.)] is an authoritative and comprehensive 640-page commentary on both international and domestic arbitration law in Australia, from two eminent former full-time judges (Clyde Croft and Marilyn Warren) and one early-career academic (Drossos Stamboulakis) all now affiliated with Monash University. It is supplemented first by the text of the International Arbitration Act (IAA)and its first two Schedules, the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC) and the 2006 revised United Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration (ML). The book also adds the text of the UNCITRAL Arbitration Rules, devised for ad hoc arbitrations but also forming the core of some institutional arbitration rules, as for the Australian Centre for International Commercial Arbitration,[1] whose first edition Rules Croft helped draft (before judicial appointment) drawing on his detailed knowledge of the UNCITRAL Rules.[2] Although these international instruments and legislation are freely available online, it is helpful to have their text appended in this volume, although it must add somewhat to the cost of the paperback or hardback versions.

The volume fills a significant gap in the literature on the comparatively small but lively field of arbitration in Australia. On the last page, as “related LexisNexis titles”, the publisher lists the commentary by Croft and others focused on domestic arbitration,[3] and another by Malcolm Holmes and Chester Brown on the IAA.[4] The present volume is more discursive and principles-based, rather than a section-by-section commentary, and covers domestic and international arbitration in Australia – both centred on the ML regime since 2010. There also exists an edited collection of essays on various aspects of international arbitration law and practice in Australia, including two chapters co-authored by Croft.[5] However, those analyses date back to 2010 (when the most significant amendments were made to the IAA) and include some more normative material (such as suggestions for further reform to legislation and arbitration rules). A more recent new book of selected (mostly updated) essays examines Australia but also compares developments particularly in Japan.[6] That also includes an analysis of investment treaty arbitration, a hybrid field of growing importance in Australia and worldwide, but not covered in the volume presently under review.[7] In short, this important new volume should fill a gap on the bookshelves (or eBook readers) of all those interested in domestic and international commercial arbitration in Australia.

It will be useful for practitioners seeking a clear overview of key principles enacted and applied by courts particularly in the Australian context, as well as university teachers and students of international commercial arbitration. The volume is written in a somewhat hybrid style. Although it is primarily a textbook, it includes sometimes quite lengthy extracts from judgments, making the volume also somewhat like “cases and materials”. These extracts are mainly from Australian case law (sometimes generated by two of the three authors when still serving on the Supreme Court of Victoria, particularly by Croft as he was charged with its Arbitration List), but also from case law particularly in Singapore and Hong Kong. That is very appropriate given the ML core and wider common law tradition shared with both those jurisdictions, and hence their influence on case law and some legislative reform in Australia.[8] Those jurisdictions also attract many more international arbitrations, hence court challenges generating case law on topics that Australian courts have not yet had to canvas or in as much detail. However, the present authors also refer to further crucial resources for correctly interpreting the international instruments and principles in contemporary arbitration. These include especially UNCITRAL documentation, including its Case Law Digest summarising key judgments worldwide, UNCITRAL’s Explanatory Note to ML (eg at pp 76-9).[9]

In coverage, after a Foreword by Robert French (former Chief Justice of the High Court of Australia), chapter 1 (pp 1-26) first introduces the “Nature of Arbitration and its Historical Development”. This includes its development in Europe, in England (including Derek Roebuck’s interesting argument that there was no less arbitration activity there in the 18th than early 20th century, undermining somewhat the view that English judges were quite wary and hence interventionist about arbitration from the 19th century), and in colonial Australia. The commentary then contrasts arbitration with other forms of dispute resolution (although the volume barely covers the hot topic of “Arb-Med” or arbitrators actively encouraging settlement), followed by the advantages and disadvantages of arbitration (highlighting advantages, but acknowledging the problem of cost – and, one might add, delays). Chapter 1 ends with a short analysis of “the bases of arbitral and judicial power”, emphasising the centrality of party agreement for arbitration as illustrated in a (quite lengthy) extract from High Court judgment unanimously rejecting a constitutional challenge to the ML regime for enforcing awards.[10] However, the commentary briefly mentions that “arbitral and judicial power may be affected by an exercise of the general sovereign power of the state, although such circumstances are exceptional” (p 26).[11]

Chapter 2 (pp 27-96) turns to the “Australian Approach to Arbitration”, tracking the evolution of arbitration statutes. This included the initiative from Queensland law reformers to update legislation in the early 1970s, prompted by the more pro-arbitration English Arbitration Act 1950, as it seemed “at this time that the Australian courts entertained suspicion, if not a dislike, of arbitration and treated it as an inferior jurisdiction that needed close supervision” (p 29). It was quite surprising to learn of this early intiative, at least for this reviewer immigrating to Australia from 2001, given that other State and federal legislators and courts have arguably been more influential in promoting arbitration in recent decades across Australia.[12] Generally, however, case law developments along with legislative enactments particularly since 2010 do indeed seem to have reduced inconsistencies and some possible “perception that Australian courts hindered effective commercial arbitration by being unduly interventionist in a number of ways” (p 92), not necessarily in accordance with the uniform approach to supporting arbitration promoted by the NYC and ML regimes.[13] Nonetheless, the commentary notes that “[c]ourt rules have tended not to keep pace with the legislative developments facilitating international and domestic arbitration in recent years” (p 93).

The remaining Chapters 3-11 cover the standard “life cycle” of a commercial arbitration filing, proceeding and award enforcement or challenge. Key principles, provisions and case law are clearly set out. Some of the longer extracts from judgments could benefit from paraphrasing or further contextualisation, and could mean that future editions of the book may be needed quite soon. Vexed issues in Australian arbitration law are almost all touched on, although sometimes without much detail or normative assessment of what the law should be. An example is the interaction with the Australian Consumer Law, impacting on many business-to-business transactions, which is gaining in importance for public policy (and hence potential challenge for arbitration agreements and especially awards) as law reformers now suggest adding pecuniary penalties for unfair contract terms and violating mandatory consumer guarantees.[14] In addition, keen readers may like to match up this book’s treatment of vexed issues with recent proposals for further law reform (underpinned by local or foreign case law, ML-based statutes and commentary),[15] assisted by the helpful index (pp 719-35) and Overview of sub-topics at the start of each chapter.

In sum, this book is very much recommended for practitioners, the academic community, and those considering amending rules and legislation around arbitration in Australia.

# Professor of Comparative and Transnational Business Law, University of Sydney Law School; Special Counsel, Williams Trade Law.

[1] Nottage, Luke R. and Dreosti, Julia and Tang, Robert, The ACICA Arbitration Rules 2021: Advancing Australia’s Pro-Arbitration Culture (September 26, 2021). Journal of International Arbitration, 38:6, 2021 (Forthcoming), Available at SSRN: https://ssrn.com/abstract=3931086

[2] https://www.cambridge.org/core/books/guide-to-the-uncitral-arbitration-rules/DE8790A3707F69031D72729CF6885104

[3] https://store.lexisnexis.com.au/products/australian-commercial-arbitration-2nd-edition-skuaustralian_commercial_arbitration_2nd_edition

[4] https://store.lexisnexis.com.au/categories/practice-area/dispute-resolution-amp-civil-procedure-790/the-international-arbitration-act-1974-a-commentary-3rd-edition-sku9780409348132/details

[5] Chapters 5 (pp103-21) and 7 (pp 137-48) in Nottage and Garnett (eds) International Arbitration in Australia https://catalogue.nla.gov.au/Record/4975990 (Federation Press, 2010)

[6] https://japaneselaw.sydney.edu.au/2020/08/book-in-press-with-elgar/

[7] Compare also the introduction to the procedural and substantive law principles in investment treaties in a commentary by three Australian authors, https://www.booktopia.com.au/international-commercial-arbitration-simon-greenberg/book/9780521695701.html?source=pla&gclid=Cj0KCQiA9OiPBhCOARIsAI0y71CxTtzSq5mzZYT7CAGcHwJpXlNGUoO2smpLT_3rixw1uEDsMTCb3qUaAnvqEALw_wcB. A new edition of that book is forthcoming from Kluwer, along with national reports on key topics including eg Luke Nottage and Nathan Eastwood, International Commercial Arbitration: An Asia Pacific Perspective – 2021 Australia Report via https://www.wolterskluwer.com/en/solutions/kluwerarbitration

[8] Dean Lewis, ‘The Interpretation and Uniformity of the UNCITRAL Model Law on International Commercial Arbitration: Focusing on Australia, Hong Kong and Singapore’ (Kluwer Law International, 2016); Nottage, Luke R., Deference of Seat or Foreign Courts to International Commercial Arbitration Tribunals Concerning Procedural Issues: Australia in Regional and Global Contexts (January 21, 2022). Available at SSRN: https://ssrn.com/abstract=4013970

[9] With that Note extensively cited in the extract from Subway Systems Australia Pty Ltd v Ireland (2014) 46 VR at 52-6.

[10] TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533 at 566-8.

[11] Citing Minerology Pty Ltd v Western Australia [2021] HCA and Palmer v Western Australia [2021] HCA 31. These disputes involving State legislation nullifying commercial arbitration awards may lead to an international treaty arbitration claim: see Luke Nottage, https://theconversation.com/clive-palmer-versus-western-australia-he-could-survive-a-high-court-loss-if-his-company-is-found-to-be-foreign-145334

[12] For example, Queensland was the second-last jurisdiction in Australia to enact the new uniform Commercial Arbitration Act based instead on the ML (in 2013), and has had some case law on international arbitration attracting criticism from commentators and other courts: see eg Cargill International SA v Peabody Australia Mining Ltd [2010] NSWSC 887.

[13] For more detail on this transition, first in Hong Kong then Singapore, see also Lewis (n 8).

[14] See Treasury, “Strengthening protections against unfair contract terms” at <https://treasury.gov.au/consultation/c2021-201582> and “Improving consumer guarantees and supplier indemnification provisions under the Australian Consumer Law” at <https://treasury.gov.au/consultation/c2021-224294>.

[15] See eg Nottage (2021 Elgar = n 6) pp129-75, updating https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2393232; Monichino, Albert and Teramura, Nobumichi, New Frontiers for International Commercial Arbitration in Australia: Beyond the ‘Lucky Country’ (December 2020). New Frontiers for International Commercial Arbitration in Australia: Beyond the ‘Lucky Country,’ in Luke Nottage, Shahla Ali, Bruno Jetin and Nobumichi Teramura (eds), New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution. Wolters Kluwer (2020), Available at SSRN: https://ssrn.com/abstract=3946073

ANJeL Team Australia runners-up again in Tokyo moot competition!

The cross-institutional Team Australia has put in a great effort to come 2nd overall again at the 20th Intercollegiate Negotiation Competition held (remotely) “in” Tokyo. Pipped by the National University of Singapore, but ahead of the University of Tokyo. Well done also to Chulalongkorn University, where USydney also has close links, for coming fifth overall.

Congratulations to our law students Hasan Mohammad (who also won the ANJeL Akira Kawamura Prize for the Sydney Law School Japanese Law course last semester) and Sarah Tang (completing our International Commercial Arbitration course this semester)!

The teams from Japan and abroad hone and display skills in arbitrating disputes applying the UNIDROIT Principles of International Commercial Contracts, as well as negotiating and documenting a complex cross-border joint venture agreement. Team Australia won the Squire Patton Boggs prize for the best performance in the English-language round (also in 2018, when the Team came first), and won the ANJeL Prize for Teamwork (also won in 2019, when runners-up overall – as in 2020).

Terrific achievement given the extra stresses of lockdowns and other challenges for this year’s Team Australia students, mainly from USydney and ANU, as well as the difficult end-of-year timing. Unlike last year, Team Australia students were unable to meet in Canberra for a training weekend.

Many thanks for support from past mooters / graduates including our Stephen Ke, CAPLUS associate and former SLS RA / tutor Dr Nobumichi Teramura (now Assistant Professor at UBrunei), and especially coach and ANJeL advisor Prof Veronica Taylor from ANU. DFAT has also committed “New Colombo Plan” travel funding that we hope will become available next year so our students can compete in person in Tokyo.

More information can be found at https://www.teamaustralia-inc.net/ and https://www.negocom.jp/eng/.

Japanese and Asia-Pacific Dispute Resolution events over October 2021

Over this month I am pleased to contribute to three events regarding Asia-Pacific arbitration and dispute resolution. On 1 October, I am moderating a session on International Commercial Arbitration in Japan and Germany, at the comparative ADR conference hosted by Institute of Japanese Law at the FernUniversität in Hagen to commemorate the 30th anniversary of its online courses in Japanese law. The speakers are well-known lawyers Ms Yoshimi Ohara (Nagashima Ohno & Tsumematsu) and Dr Christian Strasser (HEUKING KÜHN LÜER WOJTEK). Other sessions compare investment treaty arbitration as well as mediation.

On 20 October I present two classes in a new postgraduate law course on international commercial arbitration developed for the University of Chile by Santiago-based lawyer and former USydney LLM student Ricardo Vasquez Urra, which we hope will be offered annually. This too draws on my recently published book on international commercial and investor-state arbitration, and parallels my co-teaching (with barrister Dr Anna Kirk) the LLM course on international commercial arbitration at the University of Auckland late last year and in 2022.

On 2 October, I present the module on consumer redress and access to justice for a new postgraduate intensive course on consumer protection developed by the University of Malaya. I highlight law and policy developments mostly by comparing Australia, Japan and Southeast Asia, building on books including ASEAN Consumer Law Cooperation and Harmonisation (CUP 2019) and Contract Law in Japan (Wolters Kluwer 2019, 2nd ed 2022), as well as other recent publications including Studies in the Contract Laws of Asia (especially Volume III, all reviewed here for the Journal of Japanese Law). We explore some law and practice around courts and tribunals, Ombudsman and related arbitration-like processes, mediation, and other processes for consumer redress.

P.S. On 26 October I also present on “Corporate Governance and Independent Directors in Southeast Asia” (focusing on Thailand and somewhat Malaysia) for a webinar on the Role of Independent Directors in Contemporary Asia, part of the Contemporary Asia International Forum Series 2021 at National (National Chung Hsing University) hosted by Professor I-Tzu (Edith) Su.

P.P.S. This marks the 250th posting on this Japanese Law and the Asia-Pacific blog, over more than a decade. Many thanks to occasional guest bloggers and all readers!

Asia ADR Week 2021 session on roles of in-house counsel [& ‘errors of law in arbitration’]

[Updates: A. Also in August 2021, I chaired a presentation via Monash University on “Errors of Law in Arbitration – Revisited”, with a recording here. Dr Benjamin Hayward argued that a tribunal’s application of a substantive law different from that expressly chosen by the parties, or not applying the conflict of law provisions of the seat (and any chosen Rules) where such substantive law is not expressly chosen, could constitute an error of applicable procedure and thus a ground for challenging the consequent arbitral award.

B. My co-authored article on the new ACICA Rules (mentioned at 7 below), including comparative references to Japan and other Asian jurisdictions, is available in manuscript form: Nottage, Luke R. and Dreosti, Julia and Tang, Robert, The ACICA Arbitration Rules 2021: Advancing Australia’s Pro-Arbitration Culture (September 26, 2021). Journal of International Arbitration, 38:6, 2021 (Forthcoming), Available at SSRN: https://ssrn.com/abstract=3931086

C. My co-authored article empirically examining the “formalisation” of international arbitration, and the diminishing influence of non-lawyers (or even in-house counsel) across key nodes of influence, is available in manuscript here (and shortened for a forthcoming Elgar book co-edited by Shahla Ali, Giorgio Colombo et al on “Sustainable Diversity in International Arbitration”): Nottage, Luke R. and Teramura, Nobumichi and Tanna, James, Lawyers and Non-Lawyers in International Arbitration: Discovering Diminishing Diversity (September 20, 2021). Available at SSRN: https://ssrn.com/abstract=3926914]

As part of the “Asia ADR Week” of events for 2021, coordinated by the Asian International Arbitration Centre based in Kuala Lumpur, as session was scheduled for the first day of the main conference – Thursday 19 August 4-5pm AEST (2-3pm KL time) – on the topic of “Starting In-House: The Role of General Counsel of Multinational Corporations in ADR”. [A recording is available on request for my USydney students.] Agreed session contributors were myself as moderator and:

  1. Ms Debolina Partap (Wockhardt Limited, general counsel based in Mumbai)
  1. Ms Esther Chow (Kone Elavator (M) Sdn Bhd, general counsel based in KL)
  1. Mr Nick Longley (Holman Fenwick Willan, based in Melbourne; formerly in a law office in Hong Kong as well as in-house for four years with a Japanese civil engineering company and now significant engagement with Korean firms)
  1. Mr Cameron Ford (Squire Patton Boggs, based in Singapore, and formerly in-house for over a decade)
  2. Mr Raymond Goh (China Tourism Group Corp Ltd, Group general counsel – International, in Hong Kong / China).

The assigned description was: “The role of an in-house counsel in shifting the focal point on dispute resolution from the traditional standpoint of litigation to the innovative vigor of ADR has resulted in the majority of Fortune 1000 companies preferring to use ADR as a means of resolving both international and domestic disputes. This session focuses on the multi-faceted role of in-house counsel in spearheading ADR as a principal means of resolving disputes.” The focus therefore was on evolving in-house counsel perceptions around Asia regarding alternatives to litigation (arbitration, mediation, other Alternative Dispute Resolution) to resolve cross-border disputes. Part of the backdrop is resurgent delays and especially costs in international commercial arbitration despite its continued spread east from the traditional (European then US) venues.

The first part of the session asked some general questions focused on our panelists currently or having worked extensively as in-house counsel [Ms Chow, Ms Partap, Mr Goh, Mr Ford]:

1. How do or should in-house counsel teams nowadays decide generally whether to provide for and/or engage in arbitration, mediation, expert determination or other ADR rather than cross-border litigation?

2. Does or should the approach change if the disputes involve commercial and government parties?

The second part of the session posed some more specific questions:

3. The latest QMUL international arbitration survey (with more than usual Asia-Pacific respondents) confirms the continued popularity of multi-tiered DR clauses, which commit parties contractually to try eg mediation before arbitration (rather than having waiting for the dispute to arise, and then try to achieve agreement to try other ADR before proceeding to pre-agreed arbitration). Yet are such multi-tiered clauses equally negotiated and invoked among companies and legal advisors in the Asian region? See http://www.arbitration.qmul.ac.uk/research/2021-international-arbitration-survey/ [cf eg Japan, Korea (Mr Longley), Malaysia (Ms Chow)]

4. Especially in the region, are there difficulties in enforcing say the mediation step (as a jurisdictional requirement say before being able to proceed to arbitration), and issues in determining the law applicable to that question? Cf eg this US report / chapter for a book / project by Profs Gu and Reyes: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3601337, and recent case law in Hong Kong etc (https://pulse.kwm.com/hong-kong/multi-tiered-dispute-resolution-clauses-what-happens-if-you-dont-comply/) [Mr Longley]

5. What prospects are there for more establishment and use of dedicated centres for mediation, especially in the Asian region (eg already Singapore / SIMC, but also recently Japan / JIMC and Vietnam / VMC)? See eg https://www.jimc-kyoto.jp/. Would it be easier for in-house counsel to promote cross-border mediation if institutional, rather than ad hoc?

6. Why is the 2019 Singapore Mediation Convention, aimed at facilitating enforcement of settlement agreements along the lines of the NYC, attracting many signatures (but not eg from Japan or Australia) but few ratifications? See https://uncitral.un.org/en/texts/mediation/conventions/international_settlement_agreements/status. What have been experiences in enforcing settlement agreements cross-border in Asia even without this new Convention?

7. Is there declining interest and practice of Arb-Med across Asia (except perhaps in mainland China and to a lesser extent Japan), linked perhaps to more use of separate mediation as part of multi-tiered DR clauses, and/or a sense that Arb-Med is not “global practice” which arbitration institutions and practitioners feel increasingly required to follow? Cf ACICA (for which Mr Longley and I served on the Rules drafting committee) which decided not to proceed with an Arb-Med provision in its 2021 Rules, although modelled on legislative provisions for domestic arbitrations: http://arbitrationblog.kluwerarbitration.com/2021/05/01/is-arb-med-un-australian/ [Mr. Goh]

8. Are there already or likely to be changes towards more use of mediation (either separate, or in Arb-Med) due to the pandemic, or eg has the enforced move to remote hearings etc created enough time, cost and arbitrator availability benefits to maintain adequate attractiveness for international arbitration? Is the recent rise of Expert Determination in Australian domestic dispute resolution driven by arbitration costs and delays in arbitration and litigation, thus likely to carry over into cross-border dispute resolution and beyond the pandemic? [Mr Longley, compared with say Malaysia – Ms Chow, and experiences from Singapore – Mr Ford]