Onus on Australia to take diplomatic initiative in protecting Antarctica

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.

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The Freedoms of the Air and the Qatar Diplomatic Crisis

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.

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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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Talking the Talk: Providing Protections from Discrimination to Women Seeking Combat Roles

On 20 March, 2017, a treaty was tabled with the Commonwealth Parliament’s Joint Standing Committee on Treaties (JSCOT), proposing the withdrawal of one of Australia’s two reservations to the 1979 Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). This reservation excludes the effect of the Convention insofar as it would require the Australian Defence Force (ADF) to change its policy excluding women from combat duties. The withdrawal of this reservation is a very welcome development in Australia’s approach to sex discrimination, and brings Australia in line with the broad aims of the Convention, by foreclosing the possibility that policy may allow service and promotion in combat roles to be dictated by sex, rather than ability.

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“International Investment Treaties and Arbitration Across Asia” – Julien Chaisse & Luke Nottage (eds)

The future of investment treaties, especially as part of “mega-regional” free trade agreements like the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP), has become very uncertain given the isolationist volte-face of the Trump Administration. This project explores the historical and likely future trajectory of investment treaties, including the sometimes politically controversial Investor-State Dispute Settlement (ISDS) procedure, especially in the rapidly growing and diverse Asia-Pacific region. The book focuses on the extent to which Asia-Pacific economies (individually and/or through sub-regional groupings like ASEAN, the Association of Southeast Asian Nations) have been or are more likely to become “rule makers” rather than “rule takers” in international investment law, and in what sense.
The following draft book proposal is based mainly on papers presented at conferences comparing contract- and treaty-based arbitration of investment disputes in ASEAN member states (held in Bangkok in July 2016) and across the wider Asian region (held at USydney in February 2017, supported by SCIL and with a summary by Ana Ubilava available via Kluwer Arbitration Blog) and reproduced (without hyperlinks) on this Blog.

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International Investment Arbitration Across Asia: A Symposium

Written by: Ana Ubilava (PhD in Law student, University of Sydney)
[This is a non-hyperlinked version of the posting at http://kluwerarbitrationblog.com/2017/03/01/international-investment-arbitration-across-asia-symposium/]
On 16 February 2017, the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS) and the Sydney Centre for International Law (SCIL) co-hosted a symposium on the theme: “International Investment Arbitration Across Asia”. The symposium, sponsored also by the Sydney Southeast Asia Centre and Herbert Smith Freehills, brought together leading experts of international investment law from Southeast Asia, North Asia, India and Oceania. The symposium re-examined the historical development of international investment treaties in the Asian region, focusing on whether and how the countries may be shifting from rule takers to rule makers. A focus was on the ASEAN(+) treaties, including the (ASEAN+6) Regional Comprehensive Economic Partnership (RCEP) at an advanced stage of negotiations, and the Trans-Pacific Partnership (TPP) Agreement, which was discussed more broadly as an urgent topic in the wake of the change of direction by the US under President Donald Trump’s administration. Participants at the symposium also elaborated on the experiences of Asian countries with ISDS mechanisms, and the attitude towards ISDS before and after first major investor-state arbitration (ISA) cases in the region. The many speakers and discussants for the event further explored possible future trajectories of international investment treaty policymaking of Asia-Pacific countries, especially China, Japan, Korea, India, Australia and New Zealand.

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“Team Australia” wins the Intercollegiate Negotiation and Arbitration Competition in Tokyo, for the third time!

Congratulations to Stephen Ke (final-year Sydney Law School student, and former intern at the Centre for Asian and Pacific Law), Kieran Pender, Camilla Pondel and Dan Trevanion (ANU law students), who recently came out ahead of excellent teams from the National University of Singapore, followed by Osaka, Sophia, and Kyoto / Hitotsubashi universities. They had already competed very strongly in the INC moot as part of a larger Team Australia, including students competing also in the parallel Japanese-language division. Practice makes perfect! This year’s students won the Squire Patton Boggs Best English Negotiation Team award. Team Australia also was just short of the highest mark awarded in the English-language division for the Arbitration round, where students apply the UNIDROIT Principles of International Commercial Contracts.

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