Leon Trakman

UNSW Sydney | UNSW · Faculty of Law

Confidentiality and privacy are essential components of arbitration, preceding the digital data era. This article discusses how arbitration stakeholders—arbitration institutions and associations, arbitrators, attorneys, and commercial users—have increasingly lost control over confidentiality and privacy in international commercial arbitration by ad...

China faces difficult choices in renewing its Belt and Road Initiative [BRI] in the post-Pandemic era. With its primary BRI now extending from Asia to Africa, Latin America and beyond, China is depicted as a saviour rescuing developing states from their colonial roots and sublimation to the economic outreach of Western liberal states. Alternatively...

This article examines the supremacy accorded to free speech by the First Amendment of the American Constitution and in contrast, the European Union’s 2018 General Data Protection Regulation [GDPR] that highlights data protection. It compares speech as a fundamental human right in US law with the GDPR that champions individual and social rights in p...

Close-out netting provisions are a relatively new addition to the financial legal framework. Their primary objective is to strengthen the regulation and manage the risk associated with over-the-counter derivatives. They have been adopted by the financial industry and used in financial transactions to assist in controlling and allocating financial r...

Notwithstanding China’s endorsement of investor-state arbitration (ISA) more than a decade ago, few investor claims have been initiated against it. These concerns are not peculiar to China. Economically and politically powerful states, not least of all the United States, are less frequently subject to ISA than poorer states for much the same reason...

A serious dilemma for regulators of the Internet is to ensure that data providers secure the informed consent of digital consumers before accessing and transmitting their personal data. An economic dilemma for Internet regulators is to recognize the economic costs to data providers of informing data consumers about the nature and consequences of co...

Notwithstanding China's endorsement of investor-state arbitration (ISA) more than a decade ago, few investor claims have been initiated against it. These concerns are not peculiar to China. Economically and politically powerful states, not least of all the United States, are less frequently subject to ISA than poorer states for much the same reason...

India has neither prepared or implemented specific data protection or privacy laws. Since 2011, the Indian Parliament has presided over a Privacy Bill, and today there continues to be little progress on implementing dedicated privacy laws. In 2017, India released a White Paper in relation to a data protection framework for the country, which sought...

Introduction - Privacy and Data Protection Laws;

Efforts to reconcile the tension between personal data (protection) law and intellectual property law remains contentious. This Chapter explores the nature of personal data in intellectual property. The growing value of personal data has, over the past decade, begun to lend itself to question whether this data contains a level of intellectual prope...

For decades, competition law has been effective when intervention is warranted of companies cause or may cause harm to competition within a single market or across several market and diminish consumer welfare. Today more than ever competition law, along with many other areas of the law is being challenged by the introduction of data protection laws...

This Chapter begins by outlining the problem in defining and understanding the interrelationship between privacy and data protection law in Australia, India, Indonesia, Japan, Malaysia, Singapore, Thailand and the European Union. This Chapter will demonstrate and discuss how the concept of privacy is considered an important feature of the modern er...

This Chapter explores whether the law of contracts is an adequate mechanism for personal data protection pertaining to transnational commercial trade. The question arises whether Data Protection has become a new frontier in transnational contract law. It is well understood that the transition into the new digital economy has begun and is moving at...

This Chapter provides an outline of the current privacy laws in Australia. Privacy regulation and law in Australia is multilayered and includes regulation by government (primary legislation, regulations and codes), and industry self-regulation. The Privacy Act 1988 (Cth) is the principal legislation that regulates privacy, personal data and persona...

Singapore has, within 50 years, come from the third world to the first world and established a reputation as a trade, investment and legal hub for Asia. Singapore has recognized that data, including personal data, is an increasingly important resource in the digital age (Chesterman, S Data Protection Law in Singapore Privacy and Sovereignty in an I...

Today’s Internet technology provides access to information and allows people to do things, no matter where they are located in the world that, would not have been possible even three decades ago. This is no different for the people of Malaysia. This chapter provides and overview of the Malaysian data protection and privacy legal framework. Malaysia...

Indonesia is a relatively new country in regulating data protection and privacy. In 2016, the Indonesian Parliament approved the Electronic Information and Transactions Law No. 11 of 2008 (EIT). In the same year the Minister of Communication and Information (MCI) Regulation No. 20 of 2016 on Personal Data Protection in the Electronic System (PDP) w...

This Chapter briefly discusses the international, regional frameworks and institutions that currently deal with data protection and privacy. Arguably, the popularity of not only the Internet but also the portable devices such as the Iphone, laptop computers, Ipads, home security and camera systems, even televisions and other household appliances ha...

This Chapter aims to bring together the research and analysis from each of the jurisdictional Chapters and provides an outline of the key policy and legal gaps facing data protection and privacy. It does not attempt to highlight every gap or issue, due to the many variables that exist. This Chapter will provide a possible pathway to strengthen the...

This Chapter highlights how personal data has become an important tool in cyber-crime. This Chapter also discusses the issues associated with the collection and use of personal data by law enforcement agencies investigating criminal offences. The Chapter brings together the discussions already highlighted in Chaps. 13 and 14 that relate to personal...

This Chapter introduces technology and the law. This Chapter highlights the importance of the digital economy to Asia Pacific and Europe. The world is living in a period of rapid technological change, which is creating complex policy, regulatory and legal issues for governments and the broader community. The explosion in connectivity, data volumes,...

In Japan, the Act on the Protection of Personal Information 2016 came into effect on 30 May 2017. However, the road to adopting their current day data protection laws was complex and due, in part, to significant pressures from the community, and the need for the government to ensure trade with the European Union was not impacted in any way. Pressur...

This Chapter highlights the importance of data protection law to the European Union (EU) and its member states. Chapter 3 will discuss the General Data Protection Regulation (GDPR) (Regulation 2016/679 Of the European Parliament and the European Council, on the protection of natural persons with regard to the processing of personal data and on the...

As of 2018 and early 2019, Thailand has not implemented any specific legislation with regard to personal data and privacy protection. Thailand is a constitutional monarchy. The country has had 20 constitutions in total (both interim and permanent ones) since 1932, with the most recent in 2017. Since 2014, Thailand has been ruled by a military gover...

A pressing concern today is whether the rationale underlying the protection of personal data is itself a meaningful foundation for according intellectual property (IP) rights in personal data to data subjects. In particular, are there particular technological attributes about the collection, use and processing of personal data on the Internet, and...

Mediation is an important means of resolving international commercial disputes. The mediators whom the parties appoint can help to avoid contentious, dilatory and costly conflicts, including by resort to arbitration and/or litigation. The problem is the recognition and enforcement of mediated agreements often diverges from one state to the next. Th...

This book provides a comparison and practical guide for academics, students, and the business community of the current data protection laws in selected Asia Pacific countries (Australia, India, Indonesia, Japan Malaysia, Singapore, Thailand) and the European Union. The book shows how over the past three decades the range of economic, political, and...

The article examines the ‘public policy exception’ by which domestic judges decline to recognize and enforce international arbitration awards under Article V(2)(b) of the 1958 NewYork Convention. It explores litigation in China and NewYork to identify reasons invoked by domestic courts, viewed comparatively, to decline to enforce foreign arbitratio...

China’s exponential grown as a destination for inbound investment and source of outbound investment is exceptional. Indeed, China is expected to become the global leader in foreign direct investment [FDI] within a decade. Consistent with these developments, China is increasingly liberalizing its Bilateral Investment Treaties [BITS]. It is also gran...

This chapter investigates how Free Trade Agreements (FTAs) can assist the small and medium-sized enterprise sector (SME) to benefit from reduced tariffs and opening overseas markets. It identifies the importance of SMEs when negotiating the proposed European Union Australian Free Trade Agreement (EU-Australian FTA) which commenced in 1995 when the...

This article critiques the global concern that international commercial arbitration (ICA) is becoming increasingly ‘judicialized’, addressing the growing sentiment in ICA that arbitral proceedings are too lengthy, expensive, and complex. Assuming a contrarian perspective, it argues that attempts to address the cost and length of arbitration proceed...

This book is about the forces that are reshaping the international law on foreign investment today. It begins by explaining the liberal origins of contemporary investment treaties before addressing a current backlash against these treaties and the device of investment arbitration. The book describes a long-standing legal-intellectual resistance to...

This article contributes to the existing literature on investor–State arbitration (ISA) by analysing the subsequent treaty making practices of the States that pledged to abolish ISA. The article concludes that instead of rejecting ISA or withdrawing from the International Centre for Settlement of Investment Disputes (ICSID), these States are contin...

This article develops the notion that a government has a public responsibility to prevent electoral fraud in a way that extends beyond the protections conferred by an electorate’s directly correlative right to voting freedom. Focusing on electoral freedom and voter fraud in electoral systems, it presents theoretical arguments for holding government...

The author thanks Kunal Sharma for his able research assistance and the Australian Research Council for a discovery grant directed at further exploring the issues raised in this chapter.

This article examines the conceptual and functional difficulties associated with the English common law conception of domicile. It outlines the judicial challenges involved in verifying a domicile of choice in cases varying from the legitimacy of a marriage, to the validity of a will in the law of succession. The article challenges the existing app...

The enormous economic power of the People's Republic of China makes it one of the most important actors in the international system. Since China's accession to the World Trade Organization in 2001, all fields of international economic law have been impacted by greater Chinese participation. Now, just over one decade later, the question remains as t...

This article analyzes the common law of contracts from both legal and social behavioral perspectives. Section Contracts in Common and Civil Law Systems distinguishes between contract law in civil and common law systems, giving primary focus to the common law - or 'judge made' law - of contracts. Section Freedom to and Freedom from Contracts identif...

This article evaluates the established judicial proposition that an agreement to negotiate in good faith is antithetical to the principles of the common law. English courts are reluctant to enforce such agreements on the ground that they constitute unenforceable “agreements to agree”. Recently, courts have started to recognise an exception in cases...

This article examines Australia’s contentious 2011 Trade Policy Statement in which the Federal Government indicated that it will no longer provide for investor-state arbitration ( ISA ) in future bilateral and regional trade agreements ( BRTA s), choosing instead to rely on alternatives to ISA . These are likely to vary from encouraging investor-st...

Intense debate is currently brewing over the multistate negotiation of the Transpacific Partnership Agreement (TPPA). The TPPA is likely to be the second largest trade and investment agreement after the European Union, with trillions of investment dollars at stake. However, there is significant controversy and uncertainty over the resolution of inv...

The development of foreign direct investment (FDI) protocols reflects an evolutionary progression of thinking on the subject. They are steeped in established international law obligations and evolving treaty commitments. Most FDI progress has been made regionally and bilaterally, with investor protection now commonly addressed in comprehensive regi...

This chapter examines the nature of foreign direct investment (FDI). It begins by defining FDI. It then discusses value of FDI in general and in its different manifestations; the future of FDI; its strategic economic, social, and political significance beyond its immediate investment prospects; and how governments should regulate FDI.

This chapter analyzes the significance of Australia's rejection of investor-state arbitration (ISA). It challenges the Australian Productivity Commission's contention that ISA should be rejected on grounds that it is objectively inferior to other mechanisms of dispute resolution. It evaluates the consequences of resorting to domestic courts, as dis...

This chapter examines the criticisms leveled against the International Center for the Settlement of Investment Disputes (ICSID) in five particular respects. First, it considers the perceived bias of the ICSID toward wealthy Western states and their investors as an ideological and normative proposition. Second, it evaluates the extent to which the p...

This book provides a multinational perspective on international investment law. Here chapters provide a critical and comprehensive understanding of issues in a field which has grown exponentially in its importance particularly over the last decade, focusing on the European Union, Australia, North America, Asia, and China. The book approaches the fi...

What is now being negotiated as the Trans-Pacific Partnership Agreement (‘TPPA’) began as a strategic partnership agreement (the P4 Agreement) between Chile, New Zealand and Singapore in 2005 and Brunei in 2006. In 2008, the P4 countries initiated negotiations on an investment chapter, and other countries began acceding to the agreement. This paper...

Notwithstanding China’s endorsement of investor-state arbitration more than a decade ago, few investor claims have been initiated against it and none has concluded with an award. This does not necessarily mean that foreign investors will not make such claims in the future, but rather that proceeding against China, from an economic rationalist persp...

This article focuses on international investment law relating to China in general and to investor-state arbitration in particular. It has six key goals. First, it explores the extent to which China is subject to investor-state arbitration claims by inbound investors. Second, it considers the extent to which China’s investment treaty partners are in...

This paper outlines our collaborative research project for 2014-16, aimed at evaluating the economic and legal risks associated with the Australian Government’s recent approach to investor-state dispute settlement (ISDS), and broader implications for Foreign Direct Investment (FDI) and international investment law particularly in the Asian region....

Notwithstanding China’s endorsement of investor-state arbitration more than a decade ago, few investor claims have been initiated against it and none has concluded with an award. This does not necessarily mean that foreign investors will not make such claims in the future, but rather that proceeding against China, from an economic rationalist persp...

Foreign Investment and Dispute Resolution Law and Practice in Asia, edited by VivienneBath and LukeNottage [Routledge, London and New York, 2011, i–xix + 296 pp, ISBN 978-0-415-61074-2 (hb/k), £80.00, ISBN 10 978-0-203-15553-0 (eb/k), £80.00] - Volume 61 Issue 4 - Leon Trakman

This paper examines the draft Investment Chapter of the TPPA, leaked to the public, in light of recent concerns regarding the viability of investor state arbitration. The intent is to comment on the possible motivations of the negotiating parties in formulating the TPP provisions thus far and, more importantly, to recommend how the parties could pr...

The Law Merchant is depicted today as a transnational system based on merchant practice operating outside the fabric of national law. It is conceived as cosmopolitan in nature, universal in application, expertly delivered, and independent of other regulatory systems.This article critiques these qualities attributed to the historical as well as pres...

Intense debate rages over the transparency and efficiency of investor-state arbitration. In contention is whether national courts should displace investment arbitration administered by the International Center for Investment Arbitration (ICSID). How this debate is resolved will significantly impact on states across the globe, their public interests...