Erga Omnes – The SCIL Blog

Written by: Luke Nottage (USydney) & Nobumichi Teramura (UNSW, PhD candidate)
With some fanfare, on the sidelines of the ICCA Congress hosted in Sydney over 15-18 April, the Australian Trade and Investment Commission (Austrade) unveiled a glossy brochure entitled “Australia’s Capability in International Commercial Arbitration”. This blog posting explains its key contents, identifying both convincing and unconvincing aspects. Our later blog posting will compare Japan as another Asia-Pacific jurisdiction that is similarly still struggling to attract many international commercial arbitration (ICA) cases.

Continue reading “Australia’s (In)Capacity in International Commercial Arbitration”

Guest blog written by: Nobumichi Teramura (UNSW PhD in Law candidate)
Ongoing dramatic geopolitical transitions in the world have inevitably impacted on the international business environment of the Asia-Pacific region. This requires Australia and other countries in the region to re-examine their legal infrastructure for transnational business disputes. Convergence and divergence of legal systems of competing and sometimes cooperating states in the Asia-Pacific require the Australian government and other stakeholders to address unprecedented legal complexities in private to private, private to public, and public to public commercial dispute resolution.
On 19 April 2018, the Sydney Centre for International Law (SCIL) at the University of Sydney Law School organised a post-ICCA symposium: “International Commercial Dispute Resolution for the 21st Century: Australian Perspectives”. The symposium, the second recently with the University of Western Australia (UWA) Law School and also supported by Transnational Dispute Management (TDM), brought together leading experts in international arbitration, investment law and international business law from all over the world. They examined broad and perhaps increasingly overlapping fields such as investor-state dispute settlement (ISDS) in a changing legal and political environment, cross-border litigation in the Asian region, other international commercial dispute resolution mechanisms (arbitration and mediation), and inter-state dispute settlement.

Continue reading “Australian Perspectives on International Commercial Dispute Resolution for the 21st Century: A Symposium”

[Update of 22 August 2018: the JSCOT Report No 181 recommending CPTPP ratification is now available. It refers to this Submission, my oral evidence given at hearings in Sydney (transcribed here), and further statistical information jointly with PhD student Ana Ubilava (incorporated also into an article for the Sept 2018 issue of the Intl Arb L Rev).]
The Trans-Pacific Partnership was signed in February 2016 by Australia, Japan, the US and 9 other Asia-Pacific countries, but the new Trump Administration withdrew signature in January 2017, so the remaining 11 re-signed a variant (TPP11 or CPTPP) in March 2018. Inquiries into ratification are now being conducted by the the Australian Parliament’s Joint Standing Committee on Treaties (JSCOT, where the Government always had a majority of members, so will almost certainly recommend ratification) and the Foreign Affairs, Defence and Trade Committee in the Senate (where the Government lacks a majority overall). The Inquiry reports do not bind the Government anyway, so the big question remains: will the opposition Labour Party subsequently vote with the Government to enact tariff reductions consistently with this treaty, to allow the Government then to ratify the treaty so it can come into force?
A particular stumbling block will remain the TPP11’s investor-state dispute settlement (ISDS) provisions, given as an option additional to inter-state arbitration for investors directly to enforce substantive commitments offered by host states to protect foreign investment, given that the Labour Party’s policy remains opposed to including ISDS in treaties. Despite that policy position, going back to the the Gillard Government Trade Policy Statement in 2011 (in force until Labour lost power in 2013), the Labour Opposition nonetheless voted pragmatically with the Government to allow FTAs containing ISDS to come into force with Korea and China.
Below is my Submission to both Parliamentary Committees, focusing on the investment chapter and supporting ratification of the TPP11. It is based in part on my latest paper with A/Prof Amokura Kawharu focusing on recent ISDS cases and investment treaties (re)negotiated by Australia, and New Zealand where a new Labour Government has also renounced ISDS for future treaties, but pragmatically agreed to rather minimal changes to ISDS and the investment chapter overall in TPP11. The footnoted original versions of the Submission, available by the Committee websites, refer to some of my other recent writings concluding a 4-year ARC cross-institutional research project on international investment dispute management. One is a 21-chapter book on ‘International Investment Treaties and Arbitration Across Asia‘, launched by former Chief Justice Robert French on Thursday 13 April as part of a SCIL-supported symposium on international commercial dispute resolution, including Australian perspectives.

Continue reading “The TPP is Back: Submission to Australian Parliamentary Inquiries”

Written by: Luke Nottage & (Kobe University Law Faculty Prof) James Claxton
[This is an non-hyperlinked / unfootnoted version of a posting published by the Kluwer Arbitration Blog on 26 January 2018.]
Prime Minister Shinzo Abe himself is certainly back – having led the Liberal Democratic Party (LDP) to a fifth consecutive election in October 2017. If Abe remains in power for another three years, he will become the longest serving Japanese prime minister since World War II. Although the electorate probably responded mostly to his government’s hawkish security policy, given the recent sabre-rattling from North Korea, voters also seem to be giving the government the benefit of the doubt on his “Abenomics” economic policy. Introduced after the LDP regained power in 2012, Abenomics involves shooting “three arrows” – for monetary, fiscal and structural reform – to try to jumpstart the Japanese economy out of its lethargic performance since the “bubble economy” burst in 1991.
Against this political backdrop, and Abe’s ambitious announcement in 2013 that “Japan is back” on the world stage, some LDP policy-makers recently have proposed enhancing Japan as regional hub for international dispute resolution services. On 18 May 2017 the Nikkei Asian Review announced: “Japan to Open Center for International Business Arbitration”, which:

… could be set up as early as this year in Tokyo. Lawyer groups, corporations and other private-sector actors will take the lead in its operation. The Japan Commercial Arbitration Association [JCAA] could use the facility as its base while mediating international corporate disputes. Similar associations from other countries may use it as well.
Japan’s Foreign Ministry, Justice Ministry and Ministry of Economy, Trade and Industry [METI] will have joint jurisdiction over the new center. They will provide institutional support, such as by crafting necessary legislation and providing staff training.

Continue reading ““Japan is Back” – for International Dispute Resolution Services?”

This article originally appeared in The Guardian on 8 July 2017.

Photograph: John Weller/Antarctic Ocean Alliance
Shortly before World Ocean Day, and a special UN meeting to address threats facing oceans, the US president, Donald Trump, announced that the country was walking away from the Paris agreement. Here in Australia, there was a welcome bipartisan commitment to stay the course, with Malcolm Turnbull defending Australia’s participation in this critically important environmental pact.
But Australia’s environmental diplomacy needs to be more than just defensive. Taking a cue from French president Emmanuel Macron’s pledge to “make the planet great again” by determined leadership on climate action, Australia should likewise move on to the front foot. And one place where it can make a big contribution is in its own backyard – Antarctica and the Southern Ocean.

Continue reading “Onus on Australia to take diplomatic initiative in protecting Antarctica”

While some countries in the world are land-locked, the State of Qatar is ‘air-locked’: its airspace is surrounded on all sides by the respective zones of Saudi Arabia, Bahrain and the United Arab Emirates. On June 5, 2017, these same three states broke off diplomatic relations with Qatar, and closed their airspaces to all flights flying in and out of the country, with the exception of a single air corridor through Bahraini airspace. This post looks at the international legal framework of this issue, and whether these states have the legal right to enforce such prohibitions.

Continue reading “The Freedoms of the Air and the Qatar Diplomatic Crisis”

With @jrpickering on @amworldtodaypm discussing #Parexit and #Trump with @DavidTaylorABC #climate #auspol https://t.co/7XP1UCuN7y pic.twitter.com/E2hcMN4WWJ

— Tim Stephens (@ProfTimStephens) June 2, 2017

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.

Continue reading “International Arbitration Law Reform: Australia … Japan, Asia-Pacific?”

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.

Continue reading “Discretion is the Better Part of Treaty: An Analysis of the China-Australia Extradition Treaty”