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Commercial Arbitration

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Japan

Yuko Nihonmatsu , Takafumi Ochiai , and Shingo Noguchi
Atsumi & Sakai

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
  2. Japan is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention), and reserves the principle of reciprocity.

  3. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
  4. Japan is a party to the Geneva Protocol on Arbitration Clauses 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards 1927. Japan has also ratified the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention).

  5. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
  6. The Arbitration Law (Law No. 138 of 2003) governs arbitration procedures in Japan and relates to both domestic and foreign matters. Court proceedings under the Arbitration Law are ruled by the Supreme Court Rules on Procedures (Rules of the Supreme Court No. 27 of 2003).
    The Arbitration Law basically follows the UNCITRAL Model Law (1985), with some adjustments for consistency with other regulations or to handle social changes over the intervening years, including technological change. The Arbitration Law also applies to non-commercial arbitration and contains some criminal provisions.

  7. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
  8. When parties agree to the use of international arbitration in Japan, the Japan Commercial Arbitration Association (JCAA) is generally chosen as the forum for arbitrating on general commercial cases.
    If the parties agree, the JCAA or these other bodies can act as an appointing authority.

  9. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
  10. Yes. There is no restriction on foreign arbitral institutions conducting arbitral proceedings under their own arbitration rules in Japan. For example the ICC can and does operate in Japan. 

  11. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
  12. There is no specialist arbitration court in Japan.
    Japanese courts are familiar with and supportive of the law and practice of international arbitration. Courts in Japan are also increasingly being exposed to handling international arbitration cases. 

    Agreement to arbitrate

  13. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
  14. For an arbitration agreement to be valid, the Arbitration Law requires that the agreement be stated clearly in a document signed by all the parties (including by counterpart via facsimile or email). The object of the arbitration must be a civil dispute that the parties are entitled to settle peremptorily. (See question 8.) 

    An arbitration agreement can cover future disputes in the Arbitration Law in Japan.

  15. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
  16. All civil disputes that private parties can settle can also be resolved via arbitration, except divorce or separation cases (article 13 paragraph 1 of the Arbitration Law). The Arbitration Law also stipulates that an arbitration agreement between a consumer and a business operator may be cancelled (article 3 of the supplementary provisions to the Arbitration Law) and that an arbitration agreement between an individual employee and their employer in relation to labour disputes is considered invalid (article 4 of the supplementary provision of Arbitration Law). 

  17. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
  18. In principle, arbitration matters do not bind third parties (including parent companies, subsidiaries, directors, and employees) that did not sign the contract incorporating the arbitral clause. However, where a third party can be considered to be the same entity as the party that agreed on the arbitral clause under general law, like a successor or assignee of contract including arbitration clause. then that party can be compelled to arbitrate the dispute.
    Issues regarding the participation of a third party are in practice resolved through consultation and agreement among the parties, the third party and the arbitrators based on the specific circumstances. JCAA rules allow third-party participation and the joinder of parties in certain conditions, such as, for example, when all claims are made under the same arbitration agreement (article 52 of JCAA rules).

  19. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
  20. In principle, arbitration matters do not bind third parties that did not sign the contract incorporating the arbitral clause. In practice, consolidation issues would be resolved through consultation and agreement among the parties, the third party and the arbitrators based on the specific circumstances. JCAA rules allow consolidation in certain conditions, such as, for example, when all claims are made under the same arbitration agreement (article 53 of JCAA rules).

  21. 11.

    Groups of companies
    Is the 'group of companies doctrine' (or any other basis for piercing the corporate veil) recognised in your jurisdiction?

  22. No; neither the “group of companies doctrine” nor any other method of piercing the corporate veil is recognised in Japan. 

  23. 12.Separability
    Are arbitration clauses considered separable from the main contract?
  24. The Arbitration Law includes the principle of the separability of arbitration clause (article 13 paragraph 6 of the Arbitration Law) so an arbitration clause is generally treated as an agreement independent of the other terms of the contract. However, in limited cases, such as, for example, if a party entered the contract under duress, the included arbitration agreement would also be considered to be invalid or revocable.

  25. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
  26. The principle of competence-competence is recognised in Japan. 
    An arbitral tribunal can address issues of whether its authority is legitimate before starting the procedure (article 23 paragraph 1 of the Arbitration Law), although even after an arbitral tribunal decides that it has jurisdiction, a party can still ask a court for judicial review of that decision (article 23 paragraph 5 of the Arbitration Law); such a judicial review does not necessarily interrupt the arbitral procedure (article 23 paragraph 5 of the Arbitration Law).

  27. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
  28. Arbitration clauses by words clearly are obviously preferable.

    However, clauses that are ambiguous as to the parties’ intention to opt out of court proceedings should be excluded. For example, it is perhaps worth noting that optional clauses can be invalidated by a court because the optional clause does not mean a final solution by arbitration under Japanese law so the agreement does not satisfy the requirements for an arbitration agreement under the Arbitration Law.

  29. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
  30. While we do not have statistical data on ad hoc international arbitrations, we believe that institutional arbitration – whether from the JCAA or from a foreign arbitration institutions (ICC being the most popular in Japan) – is more common than ad hoc international arbitration. Nevertheless, ad hoc international arbitration does take place, and in such cases the UNCITRAL rules are predominantly used.

  31. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
  32. The Arbitration Law does not stipulate any particular rules for multiparty arbitration so in multiparty agreements arbitration clauses should be drafted carefully. Basically, the parties may agree freely on how to proceed with the arbitration, including the appointment of arbitrators. However, the JCAA rules contain stipulations on the appointment of arbitrators in the case of multiparty arbitration.

    Commencing the arbitration

  33. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
  34. The arbitral proceedings commence when one party gives the other party notification regarding the arbitral proceeding (paragraph 1 of article 29 of the Arbitration Law). If, however, the party files for arbitration with the JCAA, its rules provide that the proceedings commence upon this filing. The claimant must state the relief or remedy sought, the facts supporting its claim and the points at issue within the time limits prescribed by the arbitral tribunal. The claimant may submit any documentary evidence it considers to be relevant and may add reference materials in relation to this evidence (article 31 paragraph 1 of the Arbitration Law). The respondent follows the same rules as for the claimant (article 31 paragraph 2 of the Arbitration Law). Each party may make amendments or additions to their statements during the course of the arbitral proceedings. However, the arbitral tribunal may refuse to allow the amendments or additions if they are made after the permitted time period (article 31 paragraph 3 of the Arbitration Law). These submissions may be made orally or in writing.

    Choice of law

  35. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
  36. The parties to an arbitration proceeding may agree on the substantive law applicable to the case (article 36 paragraph 1 of the Arbitration Law). If the parties designate the laws to be applied by an arbitral tribunal this is construed as referring to substantive law rather than conflict of laws rules unless stated otherwise. 
    If the parties fail to agree on the substantive law to be applied to the case (or the choice of substantive law is unclear), then the arbitral tribunal will apply the substantive law of the state with which the civil dispute subject to the arbitral proceedings is most closely connected (paragraph 2 of article 36 of the Arbitration Law).

    Appointing the tribunal

  37. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
  38. Except for the principle of independence and impartially for the arbitrator, the Arbitration Law does not place any limitations in respect of a party’s choice of arbitrator. If the candidate arbitrators have doubts over their own impartiality or independence, they must immediately disclose the relevant information or circumstances (article 18 of the Arbitration Law). Practitioners in Japan often refer to IBA Guidelines on conflict of interest when considering impartiality and independence.

  39. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
  40. Foreign arbitrators may be appointed without any restrictions. There are no special immigration requirements applicable only to foreign arbitrators working in Japan. 

  41. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
  42. The procedure for appointing arbitrators is as specified by the agreement between the parties. The court will appoint arbitrators if requested by a party, in cases where there are two parties and one arbitrator, and the parties have not agreed on a process for the appointment of arbitrators, or either party fails to comply with the agreed process for appointment of its arbitrator. The court will appoint arbitrators if requested by a party, also where there are three or more parties, and there is no arbitration agreement. In cases where there are two parties and three arbitrators required, but the parties fail to agree upon a process for appointment of the arbitrators, the parties will each appoint one arbitrator, and the two arbitrators appointed by the parties will then appoint the third arbitrator (article 17 of the Arbitration Law).

  43. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
  44. The Arbitration Law does not contain specific rules on the immunity of arbitrators. Under Japanese law generally, arbitrators may be liable for contractual breaches or illegal action.

  45. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
  46. The Arbitration Law does not contain any provisions on securing arbitrators’ fees. However, JCAA has rules on such matters and require advance payment upon commencement of the arbitral proceedings (and at later stages, as necessary). The JCAA rules require the parties to pay the JCAA a sum calculated to cover necessary expenses, including the arbitrator’s fee, in a manner and within a time limit fixed by the JCAA. If a party fails to make the payment the arbitral tribunal will, at the JCAA’s request, suspend or terminate the arbitral proceedings until the party makes the payment (article 85 of the JCAA rules). Other than this, the relevant institutions in Japan do not provide or arrange professional fundholding services.

    Challenges to arbitrators

  47. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
  48. An arbitrator may be challenged if they do not for some reason meet the requirements agreed by the parties, or if there is reasonable doubt over their impartiality or independence (article 18 paragraph 1 of the Arbitration Law). The parties may also agree on procedures for challenging an arbitrator (article 19 paragraph 1). In the case of no agreement, the arbitral tribunal can adjudicate challenges at the request of the challenging party (article 19 paragraph 2 of the Arbitration Law). A court can be requested to remove an arbitrator due to the arbitrator’s de jure or de facto inability or undue delay in performing their arbitration duties (article 20 of the Arbitration Law). The IBA Guidelines on Conflicts of Interest in International Arbitration are generally followed when international arbitration tribunals make decisions on challenges, though Japanese court precedents have not clearly or directly taken these guidelines into consideration.

    Interim relief

  49. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

  50. Before or during an arbitral proceeding, a party may file a court petition for a restraining order with regard to a civil dispute which may be the subject of the arbitration agreement (article 15 of the Arbitration Law). The Arbitration Law does not include procedures for specific interim measures and these are handled in accordance with the Civil Preservation Law (Law No. 91 of 1989).
    On the other hand, the Arbitration Law stipulates that the arbitral tribunal may order any party, upon the request of another party, to take such interim measures or preservative measures as the arbitral tribunal may consider necessary for the protection of the subject matter of the dispute (article 24 of the Arbitration Law) and to provide appropriate security in connection with those interim measures or preservative measures. The JCAA has recently set out detailed interim measures that the arbitrator can order, subject to some conditions being satisfied; these include appointment of an emergency arbitrator in urgent situations (JCAA Rules 70 through 74).

  51. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
  52. A court or an arbitral tribunal may order a party to provide security for costs to the extent deemed necessary (article 15 and 24 of the Arbitration Law).

    Procedure

  53. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?

  54. In principle, most matters related to the conduct of the arbitration can be agreed between the contracting parties. This includes, for example, matters such as jurisdiction, the appointment of arbitrators, the arbitration rules and standards. The Arbitration Law has mandatory provisions requiring the equal treatment of all parties (article 25) and that the procedure is in accordance with public policy (article 26). 

  55. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
  56. The respondent must state its defence with respect to claims made by the claimant within the period of time determined by the arbitral tribunal (article 31 paragraph 2 of the Arbitration Law). If the respondent fails to provide a defence, the arbitral tribunal will continue the arbitral proceedings, unless otherwise agreed by the parties (article 33 paragraph 2 of the Arbitration Law). If the respondent fails to appear at an oral hearing or to submit required documentary evidence, then, unless agreed otherwise by the parties or the respondent has reasonable grounds for failure to do so, the arbitral tribunal may render the arbitral award based upon the evidence that has been presented to it up to that time (article 33 paragraph 3 of the Arbitration Law). 

  57. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?
  58. Where the rules of the arbitration have not been agreed, the arbitral tribunal has the power to determine the admissibility of evidence, necessity of examination, and weight of evidence (article 26 paragraph 1 of the Arbitration Law).  There are no restrictions in the Arbitration Law as to the types of evidence, whether it be documentary evidence, factual witnesses, or expert witnesses.
    The IBA Rules on the Taking of Evidence in International Commercial Arbitration are recognised as the primary guideline used arbitrators in Japan. 

  59. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
  60. The arbitral tribunal or a party may request a court to implement the procedures to take evidence provided for in the Code of Civil Procedure and found necessary by the arbitral tribunal. The taking of evidence can relate to the commission of an examination, an examination of witnesses, expert testimony, examination of documentary evidence, observation (article 35 of the Arbitration Law).

  61. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
  62. The Arbitration Law does not contain any provisions concerning document production in arbitration proceedings. Although the Code of Civil Procedure stipulates that the disclosure of specific documents is only permitted in limited circumstances, arbitral tribunals, especially international tribunals tend to employ a broader document disclosure regime than permitted under the Code of Civil Procedure if requested by a party.

  63. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
  64. Final hearings on merits are not mandatory under the Arbitration Law, so tribunals have the discretion to decide whether to conduct a hearing, unless requested by a party, in which case the tribunal is obliged to hold a hearing, unless otherwise agreed by the parties (paragraph 1 of article 32 of the Arbitration Law). 

  65. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?
  66. Unless otherwise agreed by the parties, oral hearings, examination of witnesses, experts or the parties themselves, or the review of documents may be conducted in any location (article 28 paragraph 3 of the Arbitration Law). 

    Award

  67. 34.Majority decisions
    Can the tribunal decide by majority?
  68. Unless otherwise agreed by the parties, tribunals will decide by a majority vote (article 37 paragraph 2 of the Arbitration Law). Procedural matters may be decided by the presiding arbitrator, if so agreed by all the parties or delegated by all the other arbitrators (article 37 paragraph 3 of the Arbitration Law).

  69. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
  70. The Arbitration Law does not stipulate the specific types of remedy available. The arbitral tribunal can award any remedy that would be available in court litigation on the same dispute; this may include damages, injunctions, declarations, and payment of interest.

  71. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
  72. The Arbitration Law does not have any provisions permitting or prohibiting dissenting opinions in arbitration awards, and statistics are not available.

  73. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
  74. Arbitral awards are prepared in writing and signed by the arbitrators. If the arbitral tribunal is a panel consisting of more than one arbitrator, the written arbitral award can be signed by a majority of the arbitrators, stating the reasons for omitting the signature of any other arbitrator. The award must state its reasons, its date of preparation and the place of arbitration, unless otherwise agreed by the parties (article 39 of the Arbitration Law).

  75. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
  76. The Arbitration Law does not stipulate any time limits for the tribunal to render its award. There are separate time limits for petitions to set aside an award and for requests to correct an award. Petitions to set aside an arbitration award must be submitted within three months from the date the  notice of the award (ie, a copy of the written arbitral award) was sent, or from when an execution order has become final and binding (article 44 paragraph 2 of the Arbitration Law). In the case of corrections, an award can only be corrected if the parties agree to make a request to do so, and the request cannot generally be limited by the tribunal (article 42 paragraph 1 of the Arbitration Law). Unless otherwise agreed by the parties, requests by the parties to correct an award must be made within 30 days from the date of receipt of notice of the award (article 41 paragraph 2 of the Arbitration Law). 

    Costs and interest

  77. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the 'loser pays' rule generally apply in your jurisdiction?

  78. The Arbitration Law has only generic provisions on legal fees and no specific legal fee structure is stipulated by law. Parties may agree on how to apportion the cost of the arbitration procedure, including legal fees, between them. If no agreement exists, each party must bear its own costs in relation to the proceedings (article 49 of the Arbitration Law); the unsuccessful party is not obligated as a matter of law to pay the successful party's costs. According to the JCAA Rules, the parties are jointly and severely liable for the arbitration costs that are paid to the arbitrators by the JCAA.

  79. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
  80. There are no rules in the Arbitration Law that mandate interest rates applicable to arbitral awards. If Japanese substantive law applies, interest may be awarded at a rate of 5 per cent per annum for claims to which the Civil Code (Law No. 89 of 1896) applies, and 6 per cent per annum for claims to which the Commercial Code (Law No. 48 of 1899) applies, unless other rates are agreed to by the parties.

    Challenging awards

  81. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
  82. The Arbitration Law does not stipulate an appeal mechanism and once issued an arbitral award is recognised to be final. There are certain grounds on which an award can be challenged in court (see question 42), but this is not considered an appeal against the award, since the court does not re-evaluate the merits of the case.

  83. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
  84. Arbitration awards can be challenged in Japanese courts if he place of the arbitration is in Japan (article 3 paragraph 1 and article 44 paragraph 1 of the Arbitration Law). Article 44 paragraph 1 limits the grounds for challenging arbitral awards to the following: (1) the arbitration award is invalid due to the limited capacity of a party; (2) the arbitration award is not valid on grounds other than the limited capacity of a party pursuant to Japanese laws and regulations; (3) the requisite notice to appoint arbitrators was not given to one party; (4) one party was unable to defend its case; (5) the subject matter of the award is beyond the scope of the arbitration agreement or claims of the arbitration; (6) the composition of the tribunal or proceedings was not in accordance with the parties’ agreement; (7) the award was based on a dispute not qualifying as a subject for arbitration; or (8) the award is against public policy. Parties may not challenge an award more than three months after either receiving notice of the award or an enforcement decision has become final and conclusive (article 44 paragraph 2 of the Arbitration Law). The local court will hold a hearing of the parties to adjudicate on the challenge (article 44 paragraph 5 of the Arbitration Law). 

  85. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
  86. The Arbitration Law does not stipulate whether it is possible or not to waive any right to challenge an arbitral award by agreement before the dispute arises. Although there do not appear to be any court precedents on the matter, and the Code of Civil Procedure allows parties to waive the right to appeal to the High Court, this kind of agreement to waive the right to challenge an arbitral award is likely to be considered invalid. 

    Enforcement in your jurisdiction

  87. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
  88. The Arbitration Law prevents the enforcement of a foreign arbitral award that has been set aside at the seat of arbitration (article 45 paragraph 2(7) of the Arbitration Law).

  89. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
  90. Japanese courts are recognised to be pro-arbitration and there are no recent cases of refusal to recognise or enforce foreign awards, though there is one case in which a party sought to revoke a JCAA award. 

  91. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
  92. According to Act on the Civil Jurisdiction with respect to a Foreign State etc, unless the parties agree otherwise, in the case of arbitration agreements between a foreign state and a citizen of another state, the foreign state is not immune from jurisdiction with respect to judicial proceedings concerning the existence or nonexistence or effect of the arbitration agreement, or arbitration proceedings based on the arbitration agreement (article 16 of the Act on the Civil Jurisdiction, etc). However, in order to enforce an award against a foreign state, the foreign state must have expressly provides consent to execution of a temporary restraining order or civil execution against the property held by the foreign state, in the manner of arbitration agreement written contract or treaty or other international agreement (article 17 paragraph 1 of the Act on the Civil Jurisdiction of Japan with respect to a Foreign State, etc). 

    Further considerations

  93. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
  94. The Arbitration Law does not expressly prohibit the disclosure of information regarding arbitral proceedings.  However, in practice, binding confidentiality obligations are almost always incorporated in arbitration agreements.  In addition, the rules of most arbitration organisation expressly require that arbitral proceedings and records are to be kept confidential from the public (eg, JCAA Rule 38).

  95. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
  96. The Arbitration Law does not stipulate the confidentiality of evidence produced and pleadings filed in arbitration and does not expressly prohibit parties from using such evidence and pleadings in other proceedings. Therefore, theoretically, parties can freely use such evidence and pleadings in other proceedings. However, in practice, there are confidentiality agreements or arbitration rules that require confidentiality regarding the arbitration procedure that would restrict the ability to use such evidence and pleadings in other proceedings.

  97. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
  98. There are no specific ethical rules that are applicable to counsel in international arbitrations in Japan, though some arbitration practitioners in Japan consider the IBA Guidelines on Party Representation in International Arbitration. The Arbitration Law does require arbitrators to have impartially and independence (article 18 paragraph 1(2) of the Arbitration Law).

  99. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
  100. There are no particular procedural expectations or assumptions of note that counsel or arbitrators need to be aware of in relation to international arbitration seated in Japan.

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GAR know-how provides reliable cross-jurisdictional insight to help cement the building blocks of international practice. In this section, select experienced practitioners answer commonly-asked questions for key jurisdictions so allowing readers to be better-placed to solve the challenges of their working days.

Questions

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
  7. Agreement to arbitrate

  8. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
  9. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
  10. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
  11. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
  12. 11.

    Groups of companies
    Is the 'group of companies doctrine' (or any other basis for piercing the corporate veil) recognised in your jurisdiction?


  13. 12.Separability
    Are arbitration clauses considered separable from the main contract?
  14. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
  15. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
  16. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
  17. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
  18. Commencing the arbitration

  19. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
  20. Choice of law

  21. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
  22. Appointing the tribunal

  23. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
  24. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
  25. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
  26. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
  27. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
  28. Challenges to arbitrators

  29. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
  30. Interim relief

  31. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?


  32. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
  33. Procedure

  34. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?


  35. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
  36. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?
  37. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
  38. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
  39. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
  40. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?
  41. Award

  42. 34.Majority decisions
    Can the tribunal decide by majority?
  43. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
  44. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
  45. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
  46. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
  47. Costs and interest

  48. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the 'loser pays' rule generally apply in your jurisdiction?


  49. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
  50. Challenging awards

  51. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
  52. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
  53. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
  54. Enforcement in your jurisdiction

  55. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
  56. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
  57. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
  58. Further considerations

  59. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
  60. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
  61. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
  62. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?