Japan - Chapter 7 - International Commercial Arbitration in Asia - 3rd Edition

Luke Nottage is Professor of Comparative and Transnational Law, an Associate Dean and the Director of the Australian Network for Japanese Law (ANJeL), at the University of Sydney Law School. In addition, he is a Special Associate at the Australian Centre for International Commercial Arbitration (ACICA).

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Originally from: International Commercial Arbitration in Asia - 3rd Edition

I. INTRODUCTION

A. General Patterns

Commercial arbitration is still not widely used within Japan, although supportive legal and institutional infrastructure is now in place. For domestic disputes, a court system based on continental European models was introduced soon after Japan reopened to the world in 1868, and the judiciary has garnered widespread public trust. Despite some influence from American law during the post-War Occupation (1945-52), Japanese judges inherited and largely maintain the German law tradition of actively encouraging settlement, in both regular civil proceedings and court-annexed conciliation schemes. Since the 1990s, as part of a broader program of justice system reform, Japanese courts have also made significant efforts to expedite civil trials and increase their capacity to deal with complex disputes.1 A further "competitor" to privately-supplied arbitration services is the development of various government-supported mediation schemes.2

Table of Contents:

Chapter 7

Arbitration in Japan
I. Introduction
A. General Patterns
B. Historical Development of Japan’s Arbitration Legislation
II. The Legal Framework for International Arbitration in Japan
A. Key Applicable Law
B. The Role of Courts
C. Form and Scope of Arbitration Agreements
1. Form of Arbitration Agreement
2. Scope of Arbitration Agreement
D. Arbitrability of Claims
1. Consumer Arbitration and Individual Employment Arbitration
E. Selection of and Challenge to Arbitrators
1. Qualifications
2. Appointment of Arbitrators
3. Challenge of Arbitrators
4. Removal of Arbitrators
F. Place (Seat) and Language of Arbitration
G. Conduct of Proceedings
1. Commencement of Arbitral Proceedings
2. Written Notice in Arbitral Proceedings
3. Court Assistance in Taking of Evidence
4. Settlement
H. Issuance and Correction of the Arbitral Award
1. Issuance of the Arbitral Award
2. Correction of the Arbitral Award
I. Foreign Lawyers’ Involvement in Arbitration
1. Applicable Law
J. Interim Measures of Protection
K. Pleas as to the Jurisdiction of the Arbitral Tribunal
L. Costs of Arbitration
III. Arbitration Practice in Japan
A. Arbitral Institutions
1. Japan Commercial Arbitration Association (JCAA)
2. The Japan Shipping Exchange (JSE)
3. Arbitration Centers Established by Local Bar Associations
4. Japan Sports Arbitration Agency
5. Construction Disputes Committee
B. Ad Hoc Arbitration
C. Other Organizations Promoting Arbitration in Japan
IV. Enforcement of Arbitral Awards
A. General Structure for Enforcement
B. Enforcement and Setting Aside of Domestic Awards
1. Enforcement of Domestic Awards
2. Setting Aside of Arbitral Awards
C. Enforcement of Foreign Arbitral Awards
D. Courts and the Enforcement of Awards
V. Conclusion