Webinars and Publications on Asia-Pacific Arbitration and ISDS
On 2 March 2022, Special Counsel Dr Luke Nottage joined Dr Michael Hwang SC (Singapore), Neil Kaplan CBE QC SBS (Hong Kong), Hafez Virjee (Paris) for a public webinar entitled “Between Theory and Practice”, discussing the development of international arbitration particularly in the Asia-Pacific region and the place of Australian practitioners in this global market. It also discussed the benefits of pursuing international arbitration as an elective course, in the context of the large range of international arbitration materials made available to Sydney Law School students and staff through the Delos Dispute Resolution platform thanks to a subscription donated by Dr Hwang.
On 25 February, Dr Luke Nottage was interviewed for a podcast recording by a Bosnia-based association for arbitration, discussing the hot topic of transparency vs confidentiality particular in investor-state dispute resolution.
On 6 December 2021, Dr Nottage spoke on ISDS and investment treaties at the University of Wollongong Transnational Law and Policy Centre‘s co-hosted symposium on topics being negotiated in the Australia-India FTA (recording here), focusing on mandatory mediation before investors arbitrate disputes, and was then invited to speak on ISDS reform more generally for a symposium on 10-11 February 2022 hosted by the Centre for Trade and Investment Law of the Indian Institute for Foreign Trade.
Some of Dr Nottage’s related recent publications include an overview chapter (no 14) for a new book on the Asian Turn in Foreign Investment (CUP,2021), an econometric analysis of ISDS-backed treaties on FDI flows with Shiro Armstrong in The Legitimacy of Investment Arbitration - Empirical Perspectives (CUP, 2022), "International Arbitration and Society at Large" (in the forthcoming Cambridge Compendium of International Commercial and Investment Arbitration), a paper with Nobumichi Teramura and James Tanna on professional diversity in international arbitration on SSRN , and a review forthcoming in the Australian Law Journal of a new book on International and Australian Commercial Arbitration.
Also published in February 2022 was a Transnational Dispute Management report of (Young-OGEMID listserv) Q&A about his book of selected essays on International Commercial and Investor-State Arbitration: Australia and Japan in Regional and Global Contexts (Elgar, 2021).
Webinar Participation and Honorary Professorship
Special Counsel Dr Luke Nottage has been appointed Honorary Professor at the University of Wollongong, engaging with its new Centre for Transnational Law and Policy. Also in August, he led a lively panel discussion on the roles of in-house counsel for the Asia ADR Week main conference, chaired a Monash University webinar on "Errors of Law in Arbitration: Revisited", and spoke at an interdisciplinary webinar on "Pandemic Pressure Points: Economics, Governance and Society in Japan".
New Elgar book on “International Commercial and Investor-State Arbitration: Australia and Japan in Regional and Global Contexts”
Special Counsel Dr Luke Nottage has updated and integrated 10 works published over the last two decades on international arbitration, plus added two completely new chapters, for a book examining the trajectory of international arbitration – including in the post-pandemic world of virtual hearings and e-arbitrations. The book “International Commercial and Investor-State Arbitration: Australia and Japan in Regional and Global Contexts” (with Abstracts here) focuses on two persistent and interrelated tensions: formalisation (generating costs and delays) versus informalisation, and globalisation versus local or regional traditions.
As endorsed by former Chief Justice of Western Australia, Wayne Martin AC QC: “‘This important work by an eminent scholar in the field of international commercial arbitration provides a valuable opportunity to step back from day-to-day events and experiences and view them from the perspective of an analytical framework, enabling important trends, policy issues and principles to be identified. Combining intellectual academic rigour with practical applications and illustrations of the principles discussed, the author draws upon empirical research and established trends to predict likely developments in arbitration in a post-pandemic global economy.”
International Arbitration and Dispute Resolution: New Kluwer Book and “ADR Academic of the Year 2020”
7 January 2021
Williams Trade Law has contributed to a just-published Kluwer book lead-edited by Special Counsel Dr Luke Nottage, who was also recently awarded “2020 ADR Academic of the Year” by the Australian Disputes Centre. The 15-chapter book, “New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution” (Abstracts and webinar here), includes his chapter with Dr Brett Williams and Professor James Claxton (Tokyo) on “Litigating, Arbitrating and Mediating Japan-Korea Trade and Investment Tensions”. That expands on their article published in 54(4) Journal of World Trade 591-614 (manuscript here), urging formal mediation of complex multi-level bilateral disputes that emerged from 2019.
Consumer Product Safety recommendations for law reform from Special Counsel, Dr Luke Nottage – publications and media appearances
October to December 2020
Williams Trade Law’s Special Counsel Dr. Luke Nottage, always active in the field of consumer law, has published an article on consumer product safety regulation: “Improving the Effectiveness of the Consumer Product Safety System: Australian Law Reform in Asia-Pacific Context” in 43 Journal of Consumer Policy 829-50 (manuscript here, pre-print here). Prompted by a governmental inquiry into reforming the Australian Consumer Law, in this comparative and empirical article, Dr. Nottage recommends the adoption of an EU-style “general safety provision”, requiring consumer goods to be reasonably safe. Summaries and updates of the JCP article were published on the “Japanese Law and the Asia-Pacific” blog, and then on 29 October 2020 by The Conversation, prompting also interviews/podcasts with ABC National Radio “Life Matters” on 5 November 2020 and “Counterpoint” on 14 December 2020. This work is related to his ongoing Australian Research Council funded joint research project comparing child product safety regulation in Australia, the US and parts of Asia. A version was presented and then discussed in the 1 December 2020 webinar for the International Association of Consumer Law (pre-recording available here) and the Australasian Consumer Law Roundtable hosted by Queensland University of Technology on 3 December 2020.
Any government agencies, consumer associations or other interested parties in any country are welcome to contact us for assistance with any work on law reform initiatives in consumer law, including implementing consumer law provisions in trade agreements.
Williams Trade Law raises $2,000 for the Mitochondrial Disease Research Foundation in the 35 kilometre Virtual Bloody Long Walk for Mito 2020.
1 to 10 August 2020 Within a week of Luke Nottage joining the firm as Special Counsel, he and Principal, Brett Williams had signed up as the Williams Trade Law and Friends Team in the 2020 Bloody Long Walk to raise funds for the Mitochondrial Disease Research Foundation. Congratulations to our family and friends who together donated $2,071 to help find a cure for Mitochondrial disease. Have a look at our team page page recording the donations by our family and friends and Luke's and Brett's pages recording that we both walked the 35km between 1 and 10 August and showing you some photos from our walks.
Williams Trade Law is pleased to announce that Professor Luke Nottage has joined the firm as Special Counsel
20 July 2020 Professor Nottage is a leader in the field of international commercial arbitration. He also brings to the firm his high level expertise in trade agreements, especially regulation of inward foreign investment, bilateral investment agreements, the law of contract, product safety law, comparative law and Asian law. His Bio.
Williams Trade Law acting for the Government of the Republic of Indonesia in WTO Dispute DS529 - Indonesia's complaint in respect of Australian Anti-dumping Duties on Imports of A4 Copy Paper from Indonesia
February to June 2019 In cooperation with Trade Law Defense PLLC, Williams Trade Law acted for the Government of the Republic of Indonesia in Indonesia's WTO complaint against Australia in Australia - Anti-Dumping Measures on A4 Copy Paper from Indonesia DS529. Indonesia challenged the finding of the Australian Anti-dumping Commission that certain interventions of the Indonesian government in the market for timber created a "particular market situation" within Article 2.2 of the WTO Anti-Dumping Agreement so as to justify departing from using domestic prices in Indonesia as the basis for determining normal value. Indonesia also challenged th findings of the ADC that the Indonesia exporters records of the costs of producing A4 paper did not reasonably reflect the cost of producing A4 paper because the cost of pulp in Indonesia was allegedly distorted by government interventions in the timber market.
Dr Brett Williiams played a key role in preparing the arguments and responses put to the Panel on these two issues of "particular market situation" under Article 2.2 and "reasonably reflect costs" under Article 22.214.171.124 of the WTO Anti-Dumping Agreement.
Williams Trade Law teaching Sri Lankan appellate judges about the very impressive new trade remedies statutes in Sri Lanka and the WTO rules on anti-dumping, countervailing duties and safeguards
December 2018 The Centre for Asian Law Centre at the University of Melbourne Law School hosted a programme for Sri Lankan judges of the Court of Appeals and Supreme Court. On Tues 18 and Wed 19 December, Dr Brett Williams taught the judges about the WTO rules on anti-dumping, countervailing duties and safeguards and then explained the provisions of the recently enacted Anti-dumping and Countervailing Duties Act 2018 (Sri Lanka) and the Safeguards Measures Act 2018 (Sri Lanka). Dr Williams was pleased to be able to point out to the group of judges some of the sound and progressive features and the excellent drafting of the new statutes. Australia and other countries could learn from some aspects of the Sri Lankan statutes.
Australian Antidumping Commission makes a No Dumping Finding for One Exporter of A4 Paper but continues its WTO inconsistent approach to "particular market situation" and "records reasonably reflecting cost"
17 March 2017 Williams Trade Law has been working with Roger Simpson & Associates Pty Ltd representing 3 Indonesian exporters in an investigation by the Australian Anti-Dumping Commission into alleged dumping of A4 paper from Brazil, China, Indonesia and Thailand and subsidization of imports of A4 paper by China and Indonesia. Following submissions of Roger Simpson & Associates Pty Ltd on the calculation of dumping margins, the Commission found that one of the 3 exporters, PT Pabrik Kertas Tjiwi Kimia Tbk had not dumped and terminated the investigation with respect to that exporter (in Termination Report TER341).
Williams Trade Law made detailed submissions alleging errors of law in the Commission's Statement of Essential Facts in relation to determinations about "particular market situation" and "records reasonably reflecting costs" (Document 146 on the public file for the Investigation on A4 Paper). Unfortunately, the Termination Report (TER341) indicates that the Commission is continuing the approach of (a) finding that there is a market situation rendering domestic prices unsuitable for determining normal values in the absence of any evidence of any market situation which affects the comparison between normal value and export price; and (b) departing from using the records of the exporter in determining cost of a major input in the constructed cost for the reason that the amounts in the exporters records diverge from what the cost would be in the absence of certain governmental interventions. We continue to maintain that both of these aspects of the Commission's approach are inconsistent with the WTO Agreement on Anti-Dumping. In particular, the recent WTO case in EU- ADD on Biodiesel from Argentina ruled that Article 126.96.36.199 only permits authorities to depart from using the records of the exporter to determine constructed cost when the records do not reflect what the exporter actually spent. The approach of the Commission appears to be in breach of Article 188.8.131.52 in the same way that the EU was in breach in the abovementioned case. We await the decision of the Minister to accept or reject the recommendation of the Commission.
The case brings to a head the controversy over the ways in which Australia has been inflating dumping margins by reference to external benchmark costs. In particular, in relation to Chinese exporters, while Australia has not sought to justify using surrogate prices to determining normal values on the basis that China is a non-market economy, Australia has still adopted these approaches to "market situation" and "reasonably reflect costs" to justify using benchmark prices in constructed normal values and thereby inflate the dumping margins.
This use of the same techniques against Indonesian exporters of A4 paper makes this A4 paper case a significant test of the Australian approach.
Teaching Law of the ASEAN Economic Community
2017 As part of the new LLM course of the Law School of Charles Darwin University, Brett Williams commenced teaching a course on the Law of the ASEAN Economic Community in 1st semester, 2017. He and Charles Darwin University have produced a sets of recorded lectures. The course is taught fully on-line so students located anywhere in the world can enrol. This is the first course in the Law of the ASEAN Economic Community offered by an Australian university and it is expected that it will be offered every year. The course deals with the rules of the ASEAN economic community dealing with trade in goods, trade in services, investment, movement of people and intellectual property.
Teaching World Trade Organization Law at the University of Sydney
2016 & 2017 Brett Williams has been re-engaged to teach World Trade Organization law at the Faculty of Law of the University of Sydney in 2017 having first taught the subject for that institution in 2001. In 2016, he taught WTO law in the LLM program in first semester and in the LLB/JD program in second semester. In 2016, the students made a special study of the WTO rules for cross-retaliation.
Brett Williams in Kuala Lumpur presenting on the Trans Pacific Partnership Agreement
March - June 2016 There was considerable interest in the TPP at the annual meeting of the Inter-Pacific Bar Association in Kuala Lumpur in April. Brett Williams was pleased to join a panel of Paolo Vergano of Fratini Vergano, Professor Raj Bhala of University of Kansas, Bruce Aitken of Aitken Berlin, Jeffrey Snyder of Crowell & Moring, and Rafael Vergara of Carey y Cia Estudo all delivering presentations on 'Resolution of Trade Disputes in TPP and Other FTAs'. On Monday 18 April, he was glad to visit the International Islamic University of Malaysia to give a lecture on "Overview of the TPP". On 17 March, Brett Williams joined Professor Bhala, and Professor Luke Nottage at a seminar on "The TPP Objectively" convened by the University of Sydney . On 22 June, Brett Williams presented a seminar on the TPP for the International Law Section of the Law Council of Australia. All of the presentation slides are on the Papers and Materials page of this website.
Congratulations to the Moot team of the University of New South Wales, finalists in the ELSA moot court competition on WTO Law
Sept 2015 to June 2016 The team from UNSW, under the coaching of Brett Williams, performed well in this years' WTO moot competition on a problem about subsidies supporting renewable energy (a problem bearing similarities to the facts of the Canada Feed-In-Tarrifs case). The team was the runner-up in the South Asia division of the Asia Pacific Round in Singapore in March making the final oral round in Geneva in June where they performed well.
Teaching on Cartels and Primary Boycotts at the University of Sydney Law School
March 2016 Brett Williams taught classes on cartels and primary boycotts, in particular the determination of the existence of a contract, arrangment or understanding. He has taught or co-taught the Undergraduate unit in Competition Law at the University of Sydney Law School since 2001.
Brett Williams has been delighted to collaborate with R.V Anuradha of Clarus Law Associates, New Delhi to write their chapter comparing trade law in India and Australia
October 2015 ? Brett Williams has been delighted to collaborate with R.V Anuradha of Clarus Law Associates, New Delhi to write their chapter "Regulation of International Trade in Goods and Services" which appears in the book by Shaun Starr (editor), Australia and India: A Comparative Overview of the Law and Legal Practice, the book being launched in New Delhi on 26 October 2015. The chapter describes aspects of the regulation of trade in both Australian law and Indian law, including the FTAs of each country, their customs law, trade remedies law, and law affecting supply by foreign service suppliers. The book is the first to compare Australian and Indian law and comes at a time of rising interest in the commercial relationship between the two countries. For details of all of the chapters, see the website of the publisher Universal Law Publishing, New Delhi.
Teaching World Trade Organization Law at the University of Sydney
August 2015 - October 2015 Brett Williams continues to teach World Trade Organization law at the Faculty of Law of the University of Sydney, having first taught the subject for that institution in 2001. This semester, the course featured an in-depth study of the general exceptions in GATT Arrticle XX and the recent case law under the Agreement on Technical Barriers to Trade. He has been engaged to teach WTO law again in 2016, in the LLM program in first semesteer and in the LLB/JD program in second semester.
The Slow but Steady Progress with Liberalization of International Trade in legal Services
August 2015 The Uruguay Round achievement with respect to trade in legal services was modest at the commencement of the WTO on1 January 1995. Since then there has been a gradual warming around the world to the idea that two tier regulation can be applied to the regulation of the legal profession: with full licensing for practice of host country law and limited licensing for the practice of foreign and international law. In a lecture in Adelaide to the Law Society of South Australia on 31 August 2014, Brett Williams described in particular the role of Australia in helping to drive the gradual acceptance of two tier regulation of the legal profession through cooperation with initiatives of the International Bar Association, through proposals in WTO negotiations, participation in negotiating terms of accession of new members of the WTO and through bilateral and regional trade agreements. A copy of the presentation on Australia and the Opening of Markets for Legal Services: A Look Back and a Look Forward is available on the Papers and Materials page of this website.
The Requirements for Acceding to the ASEAN Economic Community
May & July 2015 Have the requirements for acceding to the ASEAN Economic Community merged with potential requirements for acceding to the proposed Regional Comprehensive Economic Partnership Agreement? What treaties does a party need to accede to? What scheduled commitments will the other ASEAN members accept? These is among the issues discussed by Brett Williams in a number of presentations on The Challenges for Timor-Leste in Acceding to the ASEAN Economic Community: at the 12th Asian Law Institute Conference at National University of Taiwan on 21-22 May 2015, at the 2015 ILA / ASIL Asia-Pacific Research Forum on Integrating the Asia-Pacific: Why International Law Matters? In Taipei on 25-26 May 2015; at a law after lunch seminar at the Faculty of Law at Martin Luther University in Halle on 9 July 2015; and at the Joint Asian International Economic Law Conference on Regionalism in Asia-Pacific and Beyond: Challenges and Opportunities? in Bali on 20-21 July 2015. The presentation is available on the Papers and Materials page of this website.
Teaching World Trade Organization Law at the Australian National University
17 - 21 April 2015 Brett Williams was at the Australian National University teaching International Law of World Trade for the third time, having previously taught the unit in 2013 and 2014. The intensive course is offered in ANU's LLM and Masters of International Law degrees. The course is a comprehensive introduction to the law of the WTO, including its economic and political context. The course covers the main rules of the GATT, GATS and TRIPS and the dispute settlement system. This year the course included a particularly thorough study of the national treatment and most favoured nation rules under the GATT.
The complexities of Movement of Natural Persons obligations under Trade Agreements
20 March 2015 Brett Williams gave a presentation on the Impact of the Korea Australia Free Trade Agreement (KAFTA) and the Japan Australia Economic Partnership Agreement (JAEPA) on Movement of Natural Persons. He was speaking at the Law Council of Australia Migration Law Conference 2015 held at the Park Hyatt in Melbourne. He analysed the obligations on Australia under the KAFTA and the JAEPA affecting the grant of entry and temporary stay visas.
Presentation on WTO Dispute Settlement Reports adopted in 2014
6 February 2015 - Brett Williams spoke about WTO Disputes in 2014 at the Sydney Centre for International Law Year in Review Conference 2015 at the University of Sydney. He discussed the China - Export of Rare Earth case ruling that China's export taxes were not WTO consistent, with it being the third WTO decision to consider the relationship between China's Protocol of Accession and the availability of the exceptions in GATT Article XX. Next, the EC-Seals case offered important, if controversial interpretations on the GATT exception for measures protecting public morals, and on whether the discrimination obligations under GATT involve consideration of whether the discrimination arises from a legitimate regulatory distinction. There were two successful complaints (one by India and one by China) against the United States relating to the issue of double counting with concurrent antidumping duties and countervailing duties. There was also one successful complaint against China finding numerous inadequacies with China?s procedures for imposing antidumping duties and countervailing duties on imports of automobiles from the United States.