Comparing Recent Legislative Reform Outcomes and Processes in Australia, NZ & Beyond: Arbitration, Consumer & Contract Law
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1 Comparing Recent Legislative Reform Outcomes and Processes in Australia, NZ & Beyond: Arbitration, Consumer & Contract Law Luke Nottage Professor of Comparative & Transnational Business Law, Associate Dean (Int l) University of Sydney Law School EALS, Shanghai, 23 March
2 Arbitration: fed (& state) AGD Nottage/Garnett (eds) 10, ch1 Nov. 08: Discussion Paper ltd. issues (April 09: SCAG agrees to revise CAAs) Nov. 09: IA Amendment Bill introduced (Dec. 09: AG calls for cultural reform of arb) Mar. 10: gov t amendments to Bill 6 July 10: enacted with Royal Assent (28 June 10: new CAA enacted in NSW, etc) (leaves legislative black hole for some arb agts! Garnett/Nottage UNSWLJ 12) EALS, Shanghai, 23 March
3 Australian Consumer Law: Treasury Malbon/Nottage (eds) Consumer Law & Policy in Australia & NZ (Fed Press 13) ch1 App.B (Nov. 07: Labor govt wins election) Apr. 08: (Treasury-linked) PC Final Report Policy review initiated after 05, 06 Reports Guesstimates $ b savings from harmonising May-Nov. 08 (GFC!): MCCA & COAG agt Feb & May 09: SCOCA & Treasury papers May 09: Inter-Gov t Agreement on ACL June 09: 1 st Cth Bill amending TPA more enforcement powers, unfair terms rules EALS, Shanghai, 23 March
4 Dec 09: MCCA agrees on final ACL Mar. 10: 1 st Cth Bill passed, 2 nd introduced Eg consumer product safety reg: duty on suppliers to disclose (only) to (Oz) regulator deaths or serious (rapid-onset) injury/illness June 10: 2 nd Bill passed 2011: 3 rd Bill passed (expanding: unconscionable conduct), draft RIS on unfair terms in insurance contracts EALS, Shanghai, 23 March
5 Australia s consumer credit rereg States/territories ceded power to Cth Oct. 09: NCCPA passed - responsible lending July 10: Treasury green paper on 2 nd tranche Sept. 12: Enhancements Act enacted price regulation (= interest rate caps) on small consumer loans EALS, Shanghai, 23 March
6 Contract Law: AGD (-> ALRC?) (Like ACL) arose from AGD forum on harmonisation (cost savings, accessibility) Domestically, also perhaps internationally Apr. 12: Discussion Paper to explore the scope for reforming Australian Contract Law Late 12: Submissions online (incl mine on SSRN) + new Consultation on private int l law 13: nothing! (AG Roxon resigns after less then a year, general election set for Sept) EALS, Shanghai, 23 March
7 Cf New Zealand NZLC 03: Improving the Arbitration Act 96 Amendment Act 07 (eg full interim measures) (Nov. 08: National gov t elected) June 10: MCA Consumer Law Reform DP After 06 enforcement int l comparison DP Apr. 11: Reform Bill introduced (Then new consumer affairs Minister) Oct. 12: Select C ee suggests adding unfair terms rules enforced by regulators Apr. 12: (Treasury) Draft Exposure Credit Contracts & Consumer Finance Amdt Bill RL Contract law? Nothing cf earlier NZLC Report on 70s early 80s Contract Statutes EALS, Shanghai, 23 March
8 Cf Japan (etc) 03: (Justice System Reform Headquarters 01-04) ML-based Arbitration Law Ltd impact, no calls for further amdts (EPA -> Cabinet Office) PL Law 94, Consumer Contracts Law 00, (CCA) Consumer Product Safety Amdt Act 06 (FSA / MOF) Moneylenders Act 06 Stricter interest rate caps, Resp. Lending Contract Law: ( private study group ) 06-09, (MoJ) Council like EU, led by profs! EALS, Shanghai, 23 March
9 Tentative conclusions Growing politicisation? Especially Australia: no refs to ALRC Maybe still: Contract Law (or PIL), jointly to states? Ref to PC: mostly economists, so (more ltd?) Recommendations more likely enacted? Also NZ: less reg n mantra since 08 election Despite: leaky bldgs, consumer finance co collapses (Surprisingly enduring) legacy of 80s Rogernomics Except for: (no-fault, injury) Accident Compensation scheme! EALS, Shanghai, 23 March
10 More complex in Japan (Kozuka/Nottage): Arb Law due to political (Jce reform) program Consumer law also political, but (cf Oz )influenced by global standards (PL, CCL) even some judicial activism (consumer credit) Contract law: driven by profs & MoJ (incl Js) some micro-politics (lawyers quite opposed!), but little macro-politics (gov t changes in 09 and 12 irrelevant, some pushback from banks etc) What about HK or Taiwan, PRC? EALS, Shanghai, 23 March
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