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International Commercial and Investor-State Arbitration: Australia and Japan in Regional and Global Contexts by Luke NOTTAGE. Cheltenham, UK/Northampton, MA: Oxon: Edward Elgar Publishing, 2021. 424 pp. Hardcover: £115.00; eBook £25.00. doi: 10.4337/9781800880825

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International Commercial and Investor-State Arbitration: Australia and Japan in Regional and Global Contexts by Luke NOTTAGE. Cheltenham, UK/Northampton, MA: Oxon: Edward Elgar Publishing, 2021. 424 pp. Hardcover: £115.00; eBook £25.00. doi: 10.4337/9781800880825

Published online by Cambridge University Press:  21 July 2023

Trinh Hai YEN*
Affiliation:
International Law Faculty, Diplomatic Academy of Vietnam, Hanoi, Vietnam
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Abstract

Type
Book Review
Copyright
Copyright © The Author(s), 2023. Published by Cambridge University Press on behalf of the Asian Society of International Law

The book, in its three parts and twelve chapters, which are based on the author's previous ten publications, discusses international commercial arbitration over the past two decades and treaty-based investor-state arbitration over the past decade in Japan and Australia. The author does not investigate all the issues in these two fields but selects and categorizes matters that are either influenced by efforts of formalization (associated with the intervention by national courts) or informalization (where disputing parties and arbitrators have the autonomy to determine the arbitral proceedings) or illustrate the trend of globalization. Given this approach, the book's target audience would be academics, lawyers, arbitrators, judges, and governments with some knowledge of international commercial and investor treaty arbitration.

Having experienced studying and working extensively in the two jurisdictions of Japan and Australia, and as a Professor of Comparative and Transnational Business Law, Luke Nottage explains the topical developments in international commercial and investment treaty arbitration in these jurisdictions from a comparative perspective. In addition, the author engages in detailed debates on empirical studies or observations of other authors. Various relevant legal, political, historical, or cultural factors are examined to provide a big picture of why and how the law and practice of arbitration in the two fields have changed over time.

Regarding the section on Japan's international commercial arbitration and having the advantage of speaking the local language, the author provides an in-depth account of Japan's law and practice, for which relevant sources are not easily accessible in English. The author finds that Japan faces structural barriers in the operations of the Japan Commercial Arbitration Association (JCAA) and regional competitors, such as arbitral institutions in Hong Kong and Singapore, despite attempting to adopt international best practices and promoting international rather than domestic arbitration.

Australia has also faced some difficulties promoting international commercial arbitration when incorporating the global norms – the United Nations Commission on International Trade Law (UNCITRAL) Model Law and the New York Convention regime – and reducing the formalization of arbitration to achieve more cost and time effectiveness. The conservative approach of law reformers and various Australian courts restricts its arbitration and related court proceedings to remain “quite formal and inefficient”.

The book's focus gradually shifts to investment treaty arbitration by comparing confidentiality and transparency issues in the two fields and then studying international investment agreements that Australia signed with other countries, including Japan. The author considers that the absence of investor-state dispute settlement provisions in the Japan-Australia Economic Partnership Agreement (JAEPA) reflects the flexibility and “localised globalism” in the case of Japan and the influence of domestic political considerations in the case of Australia. Finally, the author believes that the Covid-19 pandemic, with its impact on arbitration practices, raises the question of how to develop these two areas more globally and informally.

Conflicting interests

The author declares none.