Dr Luke Nottage BCA/LLB/PhD (VUW), LLM (Kyoto)
Professor of Comparative and Transnational Business Law
Co-Director, Australian Network for Japanese Law (ANJeL)
Associate Director, Centre for Asian and Pacific Law (CAPLUS)
21 April 2021
Dr Shiro Armstrong
Director, Australia-Japan Research Centre
Australian National University, Canberra

Dear Shiro and AJRC colleagues
Re: Submission for the AJRC Reimagining the Australia-Japan Relationship project: 1
Leveraging cooperation for international arbitration and business dispute resolution
Please find appended the manuscript version of the concluding chapter of my newlypublished book: International Commercial and Investor-State Arbitration: Australia andJapan in Regional and Global Contexts (Elgar, 2021). 2 The book tracks the historicalevolution of international arbitration, as the primary mechanism for resolving cross-borderbusiness disputes nowadays, in the direction of more globalisation but also moreformalisation – reflecting in growing costs and delays. The COVID-19 pandemic has
belatedly forced international arbitration mostly online, and new practices will likely persist
as travel restrictions are eased (Part I below). However, to maximise those possibilities
and keep reducing costs and delays, there should be more structured and sustained
bilateral cooperation between governments, law reform initiatives, arbitral institutions,judges, lawyers and academics (Part II).
I hope this is helpful and am happy to elaborate these ideas. You or colleagues are also
welcome to attend the book launch by Federal Court Chief Justice James Allsop, likely
mid-June 2021 live in Sydney and online, which should attract many interested ininternational business dispute resolution including developments in Australia and Japan. 3
Yours sincerely,

Luke R Nottage
1 https://ajrc.crawford.anu.edu.au/reimagining-japan-relationship

2 See https://japaneselaw.sydney.edu.au/2020/08/book-in-press-with-elgar/

3 See also Claxton, Nottage & Teramura (2019, https://ssrn.com/abstract=3299097) updated in:

https://japaneselaw.sydney.edu.au/2020/07/new-frontiers-in-asia-pacific-international-arbitrationand-dispute-resolution-luke-nottage-shahla-ali-bruno-jetin-nobumichi-teramura-eds-wolters-kluwerend-2020-abstracts-keywords-webin

Faculty of Law
New Law Building F10
Eastern Avenue
The University of Sydney
NSW 2000 Australia

T +61 2 9351 0210
F +61 2 9351 0200
luke.nottage@sydney.edu.ausydney.edu.au/law/anjel

ABN 15 211 513 464
CRICOS 00026A

2

Chapter 12. Beyond the Pandemic: Towards More Global and Informal Approaches
to International Arbitration
Abstract: Overall, this Book traces the trajectory of both international commercial
arbitration [ICA] and investor-state arbitration [ISA, based especially on investment
treaties], especially since the 1990s, focusing on Australia and Japan in regional andglobal contexts. It demonstrates the usefulness of the dual themes or vectors of‘in/formalisation’ and ‘glocalisation’ for understanding the past and for assessing future
developments in international arbitration. Part I of this Chapter considers the longer-term
impact of the COVID-19 pandemic from 2020. It speculates about the future for theobserved proliferation of webinars, and the pandemic’s push towards virtual hearings or
e-arbitrations, as well as further diversification of arbitral seats – including potentially forAustralia and Japan. Part II ends rather normatively with recommendations for moreproductive cooperation, bilaterally but also regionally, among academics, lawyers andarbitrators, judges and governments. It identifies some key organisations andopportunities for promoting a global and somewhat more informal approach tointernational arbitration into the 21st century.

I. Current and Long-Term Impact on International Arbitration fromthe COVID-19 Pandemic 4
The COVID-19 pandemic that spread world-wide from early 2020 has had dramatic shortterm impacts on public health as well as socio-economic ordering. Travel and otherrestrictions due to the COVID-19 pandemic meant that virtual hearings suddenly becamethe ‘new normal’ for international commercial arbitration, and even for investor-state
arbitrations. 5 Economic disruption is expected to lead to a significant increase in crossborder disputes, and legal advisors and arbitrators will have to adapt. 6 Yet it remains
unclear what will be the longer-term prospects for virtual hearings or ‘e-arbitration’ more

4 This Part elaborates on Luke Nottage, ‘Will the COVID-19 Pandemic Be a Long-Term

Game Changer for International Arbitration?’ Kluwer Arbitration Blog (16 July 2020),<arbitrationblog.kluwerarbitration.com/2020/07/16/will-the-covid-19-pandemic-be-a-longterm-game-changer-for-international-arbitration>.
5 ICSID, 'The Art and Science of a Virtual Hearing', ICSID Webinar (5 May 2020),<https://icsid.worldbank.org/resources/multimedia/webinar-art-and-science-virtualhearing>.
6 See eg Joerg Risse and Antje Baumann, 'Thinking Ahead: Dispute Resolution After theCorona Crisis' (2020) 18(4) German Arbitration Journal (SchiedsVZ) 165; Klaus Peter
Berger, ‘Adaptation of Long-Term Contracts by International Arbitrators in the Face of
Severe Economic Disruption: Three Salient Problems’, (2020) Journal of International
Arbitration forthcoming.

3

generally, and even for the relative popularity of arbitral seats, in the wake of thepandemic.
During the early phase of the pandemic, in March 2020, one well-known practitioner
suggested that some arbitration filings and hearings would be delayed, with conferences
or meetings often being cancelled. 7 He also saw the shift already to remote hearings a‘sea change’ that could be a turning point in bringing online dispute resolution tointernational arbitration. By August 2020, it was possible to take stock and consider somefurther predictions. In light of the themes of this Book, will this brave new world generate
a permanent significant shift towards more time- and cost-effective procedures, andtherefore a more informal approach to international arbitration, as well as further
globalisation of the field?
I.A

Proliferating Webinars

Larger arbitration-related events have mostly indeed been cancelled or deferred, oroccasionally moved completely online, but we have witnessed a plethora of webinars
offered by arbitral institutions or associations. At least so it seems. It could be rather that
we are more aware of such seminars (‘availability bias’) or want to join even online
community events during our worrisome times, quite apart from the intrinsic importance of
their subject matter. Many webinars have in fact focused on the logistical and legal
aspects of virtual hearings. 8 These all typically cover the common question of whether
arbitrators can require a virtual hearing even if one party objects. Some also touch upon
the interesting conceptual problem of whether they can do so even if all parties prefer toawait a physical hearing.
Interestingly, such webinars, and sometimes other expert-led discussions or virtual
networking opportunities, are almost always free of charge, thereby expanding
accessibility for the younger generation or those from lower-income countries. 9 Thisshould make us wonder why pre-pandemic arbitration-related events were quite often
charged for, especially the larger ones, directly or via annual fees for members. Was thatto defray the costs of refreshments or physical venue space, and/or because participants
pay more for the opportunity to network in person? It is also intriguing to compare how
active different institutions are in offering webinars, their scope, and diversity in the
7 GaryBenton, 'How Will the Coronavirus Impact International Arbitration?', Kluwer
Arbitraion Blog (13 March 2020).
8 Velislava Hristova and Malcolm Robach, 'Legal and Practical Aspects of Virtual
Hearings During (and After?) the Pandemic: Takeaway From the SCC Online Seminar
Series', Kluwer Arbitration Blog (16 May 2020).
9 Ibrahim Godofa and Mercy Okiro, 'The Dark Cloud of the Global Pandemic: Silver
Linings for Young Arbitrators in Africa', Kluwer Arbitration Blog (4 July 2020).

4

presenters. For example, the Asian International Arbitration Centre in Malaysia hasrecorded remarkable numbers and breadth, out of 49 events over April-June 2020. 10 By
contrast, the Australian Centre for International Arbitration (‘ACICA’) organised five overthat period, 11 while the Japan Commercial Arbitration Association (‘JCAA’) only publicised
one in English. 12
Another great benefit of such webinars is that many are recorded and then madepublically available. This provides a valuable and enduring resource not only forarbitration practitioners, but also for learners and researchers. Recordings and livestreaming of webinars reduce information asymmetries in the field, highlighted in Part II ofthis Book, by providing potential users with further insights into arbitrators and other key
players in international arbitration. But will this new practice endure beyond the
pandemic, or will future webinar content start to disappear behind members-only paywalls? Arbitration institutions and organisations need to fund their activities. ACICA has
reduced registration filing fees for arbitrations over May-October 2020, 13 but theAustralian government’s comparatively large support package for pandemic-affectedbusinesses was reduced in scope from October. 14
Alongside the various webinars around virtual hearings, many organisations are issuingprovisions or guidelines on how to manage ‘e-arbitrations’. Many of those, and a brief
overarching Joint Statement on ‘Arbitration and COVID-19’ issued in April 2020 by major
arbitral institutions to urge flexibility and collaboration, are listed in a Protocol for Online
Case Management in International Arbitration. 15 This Protocol was released for public
consultation by a consortium of large international law firms in July 2020, although anearlier draft pre-dated the pandemic.
Such documents are often much more detailed than some early initiatives. Greater
specificity partially increases formalisation, even in the service of trying to create
efficiencies. A similar tension was earlier evident in the increasingly detailed amendments
to Arbitration Rules and the proliferation of soft law in arbitration, including various rules
or guidelines from the International Bar Association (‘IBA’). There is also a parallel in thedevelopment of the ‘substantive lex mercatoria’ (with UNIDROIT Principles becoming
overlaid on the 1980 UN Sales Convention, as mentioned in Chapters 2-3 of this Book).

10 See <https://www.aiac.world/events>.

11 See <https://acica.org.au/acica-webinars/>.

12 See <https://www.jcaa.or.jp/en/news/index.php?mode=show&seq=59>.

13 ACICA, 'Important Information for ACICA Users — COVID-19 Update', (2020).

Matthew Cranston, 'Australia's Rescue Package the World's Biggest, Bar One',
Australian Financial Review (6 May 2020).
15 Available via <https://protocol.techinarbitration.com>.
14

5

In addition, and quite disturbingly in terms of assessing long-term impact, many
documents and initiatives relevant to e-arbitrations flew largely under the radar in the preCOVID era. For example, the world-wide arbitration community seems to have been
largely unaware of or uninterested in the ACICA draft Procedural Order for the Use of
Online Dispute Resolution Technologies, finalised in 2016 and now being updated. 16
There had been some commentary around the Seoul Protocol on Video Conferencing inInternational Arbitration, 17 when unveiled in 2018 for discussion at the 7th Asia Pacific
ADR Conference, 18 but hardly any detailed analysis in the main refereed arbitration law
journals.
I.B

Long-term Legacy from E-Arbitration Experiences

Nonetheless, if and when this pandemic passes and travel restrictions ease, what will be
the long-term impact of this dramatic shift towards holding virtual hearings and meetingsin and around international arbitration? The most optimistic view is that stakeholders willrealise that it is possible to embrace new approaches that can dramatically reduce delays
and especially costs – concerns that had re-emerged over the last decade – despite thegrowth of arbitration around Asia which otherwise promises a lower cost base for services
compared to Europe and North America (as outlined in Chapter 6). Parties may therefore
push their lawyers, arbitrators and arbitral institutions to adopt other procedures to makearbitration more time- and cost-effective.
Some procedures are already found in most Rules, such as documents-only arbitrations,but perhaps only as an option after proceedings commence. Other innovations are only
found in some or none, such as Arb-Med (allowing or even requiring arbitrators to actively
promote settlement) or the 2018 Prague Rules on the Efficient Conduct of Proceedings inInternational Arbitration 19 as an alternative to the IBA Rules on evidence-taking. As
mentioned in Chapter 4, the JCAA’s Interactive Arbitration Rules 2019 (art 56) already go
beyond the Prague Rules (art 2.4) by requiring the tribunal to express preliminary views
on key facts and legal issues before deciding on whether to hold hearings, rather thanjust trying to reduce challenges around the neutrality of arbitrators choosing to do so. 20
See <https://acica.org.au/wp-content/uploads/2016/08/ACICA-online-ADR-proceduralorder.pdf>.
17 Jiyoon Hong and Jong Ho Hwang, 'Safeguarding the Future of Arbitration: Seoul
Protocol Tackles the Risks of Videoconferencing', Kluwer Arbitration Blog (6 April 2020).
18 Sue Hyun Lim, '7th Asia Pacific ADR Conference Review: Innovating the Future of
Dispute Resolution', Kluwer Arbitration Blog (20 December 2018).
19 Sol Argerich, 'A Comparison of the IBA and Prague Rules: Comparing Two of theSame', Kluwer Arbitration Blog (2 March 2019).
20 David Gilmore et al, 'New 2019 JCAA Rules: Is Three a Crowd?', Kluwer Arbitration
Blog (8 February 2019).
16

6

However, a second possibility is that lawyers in particular will resist such further
innovations. This may be because lawyers become very risk-averse when it comes totheir own clients, and carry over such conservatism when serving on Arbitration Rules
drafting committees or boards of arbitral institutions. They (and some arbitrators) may
also suffer from ‘change fatigue’, after being forced to move to virtual arbitrations during
the 2020 pandemic, and even be worried about associated declines in fee revenues.
Nonetheless, especially if the travel restrictions continue for many more months or evenyears, so many (including users) gain knowledge and experience concerning virtual
hearings, these may indeed become the norm rather than exception – at least for smaller
and mid-sized international arbitration proceedings.
A third scenario, also quite possible, is a partial but significant ‘reversion to the mean’ – tophysical hearings and even some paper-based arbitrations. There may be similar supplyside pressures and incentives pushing in that direction. On the demand side, at least
some users (perhaps more risk averse and/or occasional parties to arbitrations, including
say larger Japanese corporations) may also be willing to pay again a premium for that
more traditional style of arbitration.
A fourth and most pessimistic outcome would be a complete reversion to the (current)
norm, with virtual hearings becoming again an exception. This seems improbable, given
so much ‘show and tell’ already regarding e-arbitrations. Yet it is not completely
inconceivable. Many disaster studies show how communities do largely go back to the
comfort of old ways. 21 International arbitration also retains a built-in advantage overlitigation as a potential competitor, given the enforceability of arbitration agreements andawards under the New York Convention – with little uptake yet of the 2005 Hague Choiceof Courts Convention, despite the recent establishment of various internationalcommercial courts. 22 The 2018 Singapore Convention on Mediation 23 will only come into
force from 12 September 2020 for a few smaller economies, and anyway does not cover
enforcement of agreements for cross-border mediation, as mentioned in Chapter 1. In
addition, the confidentiality still often associated with arbitration, but with variants for
21 Luke Nottage, Hitoshi Nasu and Simon Butt, 'Disaster Management: Socio-Legal andAsia-Pacific Perspectives' (2013) 13(36) Sydney Law School Research
Paper.<http://ssrn.com/abstract=2263953>.
22 Luke Nottage and Bruno Jetin, 'Introduction: New Frontiers in Asia-Pacific trade,
Investment and International Business Dispute Resolution' in Luke Nottage et al (eds),
New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution (Wolters
Kluwer, forthcoming end-2020), manuscript at <https://ssrn.com/abstract=3635795>.
23
Available
via<https://uncitral.un.org/en/texts/mediation/conventions/international_settlement_agreeme
nts>.

7

example around the Asia-Pacific region (illustrated in Chapter 8), is a double-edged
sword. As explained in Chapters 6 and 7, confidentiality can encourage more robust
decision-making in arbitration. Yet it can also make it harder for users to assess thequality of services provided by lawyers and (perhaps now less so) arbitrators, 24 and thus
reduce the incentive for them to maintain innovations.
I.C

Long-Term Legacy for Arbitral Seats

A related question is: what will be the impact on arbitral seats, including across the AsiaPacific region? 25 One possible scenario is a dramatic shift, because physical hearings
often took place at the seat (although this was not required, and a different location could
be agreed upon), but virtual hearings are essentially delocalised. More geographically
remote seats, like Australia or even Japan, may become a more attractive choice.
However, a second outcome seems more likely: these seats will become more popular if
their local courts are similarly capable of holding virtual hearings and generally managing
proceedings remotely. This aspect will be crucial in the short-term, where for example
parties may need to approach seat courts for assistance in their arbitrations (eg forinterim measures or, more rarely, arbitrator challenges). But it will also be important after
the pandemic passes, allowing parties again to approach the courts in person. In
particular, the seat court’s experience itself with virtual hearings (including for regularlitigation) may colour its assessment of any challenges relating to due process during an
e-arbitration, even at the award enforcement stage. This suggests that moregeographically challenged seats may gain in popularity in the subset of jurisdictions
where courts are well-funded and/or organised for information and communication
technology – including perhaps Australia, say compared to Japan. 26
A third scenario is an even more subdued relative rise in popularity or diversity in arbitralseats. Some emerging jurisdictions may even see a reversal in fortunes, if for example
their courts are less open for virtual hearings. Broader political developments, perhaps
related to the pandemic but not necessarily, may also dwarf significant shifts in arbitral

24 Catherine

Rogers, 'The Market for Arbitrators and The Market for Lemons', Kluwer
Arbitration Blog (10 June 2020).
25 Nottage and Jetin (n 19).
26 Reegan Grayson-Morison and Stacey Steele, 'Judicial Responses to COVID-19:
Japanese and Victorian Courts' Use of Technology', Asian Legal Conversations —(23
June2020),
COVID-19<https://law.unimelb.edu.au/__data/assets/pdf_file/0003/3413046/Reegan-GraysonMorison_Japanese-courts-and-technology.pdf>.

8seat popularity related to the current emergence of e-arbitrations. A case in point is theupheaval in Hong Kong from mid-2019. 27
The fourth possible scenario is also quite plausible: no significant change in relative
popularity of seats. After all, arbitral institutions and practitioners across all credible
arbitral seats are all busily presenting themselves as viable candidates in our brave new
COVID-19 narrative world. 28 Pandemic responses provide a new field for arbitralinstitutions to engage in a curious and evolving mixture of cooperation (to keep
expanding the arbitration pie) and competition (trying to gain a bigger slice). 29 Surveys
and other research also tell us that many factors impact on the choice of seat, even pathdependence or ‘status quo bias’. 30 More broadly, entropy may be particularly common inlegal environments.
In conclusion, the prognosis for international arbitration is further complicated because
the two main questions raised above (impact from e-arbitration and impact on preferredseats), each generating four possible scenarios, are clearly inter-connected. They stillbear thinking about as the COVID-19 pandemic unfolds, even though as various sages(including possibly Niels Bohr, Mark Twain and Yogi Berra) have warned us over the
decades: ‘It’s tough to make predictions, especially about the future’. 31

II. Collaborating to Promote More Informal and Global Approaches
The COVID-19 pandemic has already created additional complexity as well as
opportunities for the arbitration world. Evolving practices intersect with the perennial
tensions of in/formalisation and glocalisation highlighted throughout this Book. From amore normative perspective, how could we promote a more informal and global approach
to international arbitration – especially for Australia, Japan and indeed the wider Asian
region?

Seegenerally
updates
via
East
Asia
Forum,<https://www.eastasiaforum.org/category/countries/hong-kong/>.
28 Luke Nottage and Tom van Laer, 'COVID-19 in Asia and Beyond: We Are Story
Characters Living in a New Story World', Sydney Business Insights (2020)<https://sbi.sydney.edu.au/covid-19-in-asia-and-beyond-we-are-story-characters-living-ina-new-story-world/>.
29 Stéphanie Papazoglou, 'The Battle for Survival Among Arbitral Institutions', Kluwer
Arbitration Blog (19 June 2020).
30 Dipen Sabharwal and Mona Wright, 'What Do Users Want From Seats andInstitutions?', Kluwer Arbitration Blog (2 November 2015).
31 See <https://quoteinvestigator.com/2013/10/20/no-predict/>.
27

9Particular attention probably needs to be paid yet again to reducing delays and especiallycosts, particularly for ISA given the greater public interests involved. However, thoseinterests also push treaty negotiators and drafters towards adding more detail to theunderlying treaty provisions, to meet concerns about lack of clarity and certainty.
Fortunately, the procedural provisions around ISA are easier to draft clearly, compared tothe underlying substantive commitments made through investment treaties. A key forboth types of provisions is consistency, so a model treaty or provisions would be useful todevelop and display for both Australia (as noted in Chapter 11) and Japan. Even then, ofcourse, what ends up being agreed in specific treaties may end up being varied becauseof different interests or model provisions brought forth by counterparty states.
Governments in Australia and Japan already consult informally about investment treaties
with various stakeholders within their respective jurisdictions, but could make someconsultations more public and indeed consider some joint consultations (or encourage
those involved in one state to get involved or collaborate with others involved in the otherstate’s consultations). After all, their recent treaties share a mostly common(contemporary US-style) core, and they even have some similar experiences now in theirinvestors initiating ISA claims, although Japan has not yet been subjected to an inboundclaim like Australia (as discussed in Part III of this Book).
Both states, especially now that they anyway have become more aware of arbitration
issues and cases through investor-state arbitration, should also keep a closer eye oninternational commercial arbitration case law and other developments within their own
and comparable jurisdictions. Governments should be willing to engage in law reform toensure that courts defer to party and arbitrator autonomy, in accordance with theunderlying international instruments and so as not to turn arbitration into litigation (oreven ‘litigation-lite’, as cautioned by Australia’s former federal Attorney-General in 2009
cited at the outset of Chapter 5). In particular, legislators should intervene to ensure that
arbitral proceedings themselves as well as court-related proceedings remain time- andcost-effective. 32
The federal Attorney-General’s Department (‘AGD’) has been sporadic and not verytransparent in amending the International Arbitration Act 1974, with some public
consultation for the 2010 amendments but nothing structured for the 2015 and 2018
amendments (as outlined in Chapter 5). The Department could learn from Japan’s
Ministry of Justice, which coordinates a standing law reform deliberative council (hosei
shingikai) that systematically reviews different areas of law. It involves various
stakeholder groups and publically releases summaries of meetings, and even of prior
32 See also Albert Monichino and Nobumichi Teramura, ‘New Frontiers for International

Commercial Arbitration in Australia: Beyond the ‘Lucky Country’’ in Luke Nottage et al(eds) New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution(Wolters Kluwer, forthcoming early 2021).

10‘study group’ meetings (as mentioned at the end of Chapter 4, regarding deliberations
underway in 2020 with a view to amending the Arbitration Act 2003). The AttorneyGeneral should even consider referring arbitration law reform (along with stalled revisionsof private international law) to the independent Australian Law Reform Commission for alaw reform inquiry and report. 33 Unfortunately, however, Australian political leaders
nowadays seem more prone to keeping law reforms within the control of their respective
departments, or to refer some larger and more controversial topics to the ostensibly more
technocratic Productivity Commission.
If the Attorney-General does embark on further and more far-reaching reforms toarbitration law, or (preferably) refers such an inquiry to the Australian Law Reform
Commission perhaps in conjunction with stalled AGD consultations over reforming privateinternational law and contract law, Japan’s Ministry of Justice should be approached totry to collaborate in identifying and phrasing such ‘Model Law Plus’ amendments. Suchcooperation could be formal by involving simultaneous reforms and regular discussions
among officials coordinating the respective processes, or informal by encouraging
stakeholders (such as bilingual experts in law firms or academia) to make public
submissions to both inquiries. In addition, although this may be complex enough toarrange bilaterally, there is scope to reach out to other ML jurisdictions in the Asian
region to coordinate with arbitration law reformers there too.
There also exists wider scope for greater collaboration among judges to keep promotinginternationalist interpretations of Model Law (‘ML’) based statutes, and in particular topromote interpretations (and court processes) that help reduce costs and delays torestore a more informal approach to arbitration. Australian judges already cite extensively
judgments from other common law jurisdictions in Asia (notably Hong Kong andSingapore), and also still English as well as sometimes US case law (as indicated in
Chapter 5). Yet they need to be exposed to case law from other ML jurisdictions in theregion, including from Japan despite the language barrier. Australian judges do havecontact with counterparts in Japan by supporting early-career judges coming to Sydney
and Melbourne for year-long research programs, but the latter study many fields ofAustralian law, and there have only been limited structured opportunities for Australianjudges to visit Japan to exchange views regarding specialist fields such as arbitration
law. 34 Japanese judges are also less prone to attend and certainly speak at majorinternational arbitration conferences, within their own country or abroad, compared toboth current and past Australian judges. This may reflect different career paths into,
during and after the judiciary, with Japan’s former judges notably less likely to be
33 See my recommendation picked up by (but so far to no avail) by the New South Wales

Law Society, Future of Law and Innovation in the Profession (Inquiry Report, 2017).
34 Compare generally <https://www.anjel.com.au/people> and JJ Spigelman, ‘Judicial
Exchange Between Australia and Japan’ (2006) 22 Journal of Japanese Law 225.

11

appointed arbitrators. As well as encouraging the Japanese judges to give more extrajudicial speeches on arbitration law, they could become more involved in Singapore’s
Asian Business Law Institute (established in 2016, 35 with considerable input from
Australian judges).
By contrast, Japanese law firms have grown significantly and bengoshi lawyers have also
become leaders in many large international law firms in Japan since 2004 (as mentioned
in Chapters 4 and 6), including some quite active international arbitration practice groups.
Such Japan-based lawyers have also started to figure quite prominently in international
arbitration conferences and other initiatives, including the IBA (headed over 2011-12 byprominent bengoshi and University of Sydney alumnus, Akira Kawamura). They play
more central roles in Japan’s arbitration centres and professional associations, such as
JCAA, the newer Arbitrators’ Association (chusainin kyokai) focused on arbitrator training
and networking, and recent institutional initiatives aimed at putting Japan on the regionaland global map for arbitration. 36
Partly through these organisations, Japan-based lawyers also have an impact on regional
professional organisations such as LAWASIA (established in 1966 with strong backing
from both Australia and Japan, and including a track for judges that generates an annual
conference led by Chief Justices throughout Asia and Oceania), 37 the Inter-Pacific Bar
Association (established in Tokyo in 1991), 38 and the Asia-Pacific Regional Arbitration
Group (established in 2004 among regional arbitration centres, following a proposal by
Meijo Professor Kaoru Matsuura and well-known Australian arbitrator Dr Michael
Pryles). 39 However, there is scope also for more collaboration in case law comparisonsand law reform initiatives among Australian and Japanese lawyers, arbitrators and centre
staff through such organisations as well as peak associations for lawyers in bothcountries: the Law Council of Australia (with interest in arbitration somewhat dispersed
among sections focused on International Law, ADR and Business Law) and the Japan
Federation of Bar Associations.
Last, but certainly not least, there are multiple opportunities for university researchers andteachers to coordinate more closely with each other in Australia and Japan, as well as
regionally, to promote consistently internationalist understandings of underlying
35 See generally <https://abli.asia/Introduction/>.
36 Seefurther 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; and Chapter 4.
37 Law Association for Asia and the Pacific, <https://www.lawasia.asn.au/aboutus/history>.
38 See generally <https://ipba.org/about-us/about-ipba/history/165/160/>.
39 See further Chapter 2 and generally <http://www.aprag.org/#aboutus>.

12

arbitration law instruments that also help reduce costs and delays to restore a more
informal approach to arbitration. Law professors probably maintain a comparatively
stronger influence in commercial arbitration circles in Japan, reflecting its roots in the civil
law tradition, but their impact may decline as in Australia as arbitration becomes morelawyer-driven and formalised. However, the role of law professors is likely to remainstrong in investment treaty arbitration, as concerns keep growing about this field(especially in Australia, detailed in Chapter 13) and it also becomes increasingly
transparent (as discussed especially in Chapters 8 and 9). Professors specialising ininvestment treaty arbitration from Japan and Australia are active in the International Law
Association, 40 as well as the Academic Forum for ISDS providing input since 2019 into
UNCITRAL’s multilateral reform deliberations. 41 Some have already collaborated in joint
projects. 42
Academics have different although overlapping motivations and perspectives in
examining and promoting arbitration. Compared to lawyers, they have greater freedom inwhat and how they research, and are not subject to ‘billable hours’ pressures increasingly
prevalent especially in large law firms, thus able to push harder for changes to law andpractice that reduce costs and delays as well as formalisation more generally. Comparedto judges, they are not limited mainly to what topics percolate up through litigated cases.
Compared to government officials (especially in Australia, where job rotation has become
quite common), let alone politicians, academics can take a longer-term perspective inwhat they research, write about, and advocate in terms of law reform. A unique forum forpromoting collaboration among academics and legal practitioners, and government
officials to a lesser extent, is the Australian Network for Japanese Law. Since 2002 it has
built up a membership of over 500 individuals interested in comparing Japanese law,
40 For example, the Committee on the International Law on Foreign Investment (2003-8)
including Professor Vivienne Bath, while the current Committee on the Rule of Law andInternational Investment Law includes Professor Junji Nakagawa: see <https://www.ilahq.org/index.php/committees>. Kyoto University expert Professor Shotaro Hamamoto
also helped host the ILA’s major conference in Kyoto in 2020.
41 See generally <https://www.cids.ch/academic-forum>. Professor Hamamoto fromJapan joins me and several other academics from Australia contributing to this Forum.
42 Elorating a Concept Paper on arbitrator neutrality for the Forum, see Chiara Giorgetti,
Steven Ratner, Jeffrey Dunoff, Shotaro Hamamoto, Luke Nottage, Stephan Schill andMichael Waibel ‘Independence and Impartiality of Adjudicators in Investment Dispute
Settlement: Assessing Challenges and Reform Options’ (2020) 21 Journal of World
Investment and Trade 441. Professor Shotaro Hamamoto also contributed a report on
Japan for the Centre for International Governance Innovation project comparing (forwhich I contributed the report on Australia, adapted as Chapter 11 of this Book). See alsoeg Shotaro Hamamoto and Luke Nottage, ‘Japan’ in Chester Brown (ed) Commentaries
on Selected Model Investment Treaties (Cambridge University Press, 2013) 347.

13

based mainly in Australia and Japan but also in Europe, North America and various partsof Asia. 43
The COVID-19 crisis can provide an extra opportunity to bring stakeholders together inAustralia, Japan and wider afield to reconsider how to better develop both ICA and ISA,
as arbitration’s pre-eminent position is already starting to be challenged by initiatives
such as international commercial courts or mediation. 44 There has been a supply sideshock, as lawyers and arbitrators have had to rethink how they provided and therefore
charged for their services. There was also a demand shock, as cash-strapped clients
called for practical and cost-effective arbitrations of both existing disputes and the many
new ones caused by the widespread economic dislocation.
Although Part I above shows that long-term transformation is far from assured, novel
pandemic-induced practices and norms could help trigger a new wave of reform forarbitration rules and even legislation. Key regional venues could be displaced or eclipsed,
especially given the extra geopolitical tensions around Hong Kong. Australia and Japan,
as more remote venues (geographically and/or in perception), therefore have areasonable new opportunity to become more active and attractive hubs for international
arbitration and other dispute resolution services. Work towards that goal will benefit from
more concerted efforts involving various stakeholders, bilaterally and in a regional context
as outlined above, and this Book hopefully provides a better platform for suchcollaboration.

43 See <https://www.anjel.com.au>, and (regarding the Journal of Japanese Law, a key

periodical
ANJeL
helps
with)
<https://japaneselaw.sydney.edu.au/2020/06/commemorating-prof-dr-harald-baums-25year-general-editorship-of-the-journal-of-japanese-law/>.
44 See generally eg Luke Nottage et al (eds) New Frontiers in Asia-Pacific International
Arbitration and Dispute Resolution (Wolters Kluwer, forthcoming early 2021).