International Arbitration Law Reform: Australia … Japan, Asia-Pacific?

The Australian parliament is now reviewing a Bill including four further amendments to its International Arbitration Act, after enacting two other sets of amendments in 2015. These mostly correct for drafting errors or uncertainties that have become apparent since much more extensive amendments in 2010, which included almost all the 2006 revisions to the 1985 UNCITRAL Model Law template originally adopted by Australia in 1989. By contrast, Japan adopted the 1985 UNCITRAL Model Law template only in 2003, as part of a much broader package of justice system reforms, and has not updated its legislation at all since 2003.
Such diverging approaches across the region are examined in a forthcoming book on “The Developing World of Arbitration: A Comparative Study of Arbitration Reform in the Asia Pacific“, co-edited for Hart by Hong Kong University Professors Gu Weixia and Anselmo Reyes (also formerly a judge). I was pleased to be invited to become a secondary author for the Japan chapter, with Nobumichi Teramura, a Doshisha University graduate now completing his PhD at UNSW. His main supervisor, Prof Leon Trakman, is authoring the chapter on Australia.
Below is my outline of the recent and pending amendments in Australia, with an abridged version (containing hyperlinks to further reference material) published on 13 May 2017 by the Kluwer Arbitration Blog.

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Discretion is the Better Part of Treaty: An Analysis of the China-Australia Extradition Treaty

By Grant Kynaston and Harry Rogers (SCIL Interns)
On September 6, 2007, the Attorney-General at the time, Philip Ruddock, signed the Treaty on Extradition between Australia and the People’s Republic of China (“the Treaty”). Almost ten years later, it is still not in force. On March 28, 2017, following its latest attempt to secure its ratification, the Federal Government was compelled to withdraw the Treaty from parliamentary consideration, after it became clear that the Senate was likely to disallow regulations necessary for its domestic implementation. Nonetheless, the Government remains committed to its ratification: until the Treaty enters into force, Australia will continue to lack a clear framework for dealing with those extradition requests from China that do not fall under existing multilateral conventions to which both countries are party. However, it is argued that the Treaty, as it stands, lacks sufficient protections against unjust extraditions, and the Government’s counter-argument, that Ministerial discretion provides a final veto on extradition requests, is questionable in its efficacy under Australian law.

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