Japan - Baker & McKenzie International Arbitration Yearbook: 2010-2011

Haig Oghigian is a Partner, Co-chair of the Litigation and Dispute Resolution Group in Baker & McKenzie’s Tokyo office, and Steering Committee member of the Firm’s International Arbitration Practice Group. In addition to his work in dispute resolution, Mr. Oghigian advises clients on mergers and acquisitions, joint ventures, license agreements and distribution agreements, as well as on construction and engineering contracts.

Mami Ohara is an Associate in the Litigation and Dispute Resolution Group in Baker & McKenzie’s Tokyo office.

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Originally from Baker & McKenzie International Arbitration Yearbook 2010-2011

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A. LEGISLATION, TRENDS AND TENDENCIES

The new Arbitration Law of Japan (the “Arbitration Law”) was promulgated on 1 August 2003 at the 156th session of the National Diet as Law No. 138 and came into force on 1 March 2004. Thus in 2004, Japan’s arbitration system was completely overhauled. Japan modernized its outmoded arbitration law4 and brought it in line with the UNCITRAL Model Law. At the same time, Japan’s leading international commercial arbitral institution, the JCAA, revamped its commercial arbitration rules (the “Rules”), to bring them in line with the Arbitration Law, the UNCITRAL Arbitration Rules, and the rules of other leading international commercial dispute resolution organizations. This section will provide a brief summary of the historical background of the arbitration law in Japan as well as an introduction to the key reforms and unique features of the Arbitration Law and the Rules.

Table of Contents:

A. Legislation, Trends and Tendencies A.1 Historical Background A.2 Main Features of the Arbitration Law B. Cases B.1 Court Assistance in Taking Evidence B.2 Separability of Arbitration Agreement B.3 Public Policy B.4 Enforcement Order C. Insolvency Issues in Arbitration C.1 Arbitration Proceedings and Bankruptcy Proceedings under Japanese Law C.2 Arbitration Agreements Executed after the Commencement of Bankruptcy Proceedings C.3. Commencement of Arbitral Proceedings by Bankrupt Debtors C.4 Impact of Bankruptcy Proceedings on Pre-existing Arbitration Agreements C.5 Effect of Bankruptcy Proceedings on Pre-existing Arbitral Awards C.6 Commencement of Arbitral Proceedings against Bankruptcy Trustees C.7 Effect of Bankruptcy on Pending Arbitration Proceedings C.8 Conclusion