Originally from:
Arbitration in Asia - 2nd Edition - Looseleaf
Arbitration in Asia - 2nd Edition - Electronic
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[1] INTRODUCTION
Arbitration is admittedly not yet a popular method of dispute
resolution in Japan. It is certainly less known than litigation in court or
mediation provided by court called chotei. Even in the business
community, Japanese businessmen are not generally familiar with
arbitration as a method of dispute resolution. Accordingly, as far as
domestic transactions are concerned, it seems rather rare for arbitration
clauses to be included in contracts. While litigation is recognized as the
ultimate means of dispute settlement, Japanese people for historical
reasons have tended to avoid litigation, preferring instead to settle
disputes amicably through negotiation with or without involvement of a
third-party mediator.
There is, however, some evidence that arbitration was used more
before the Second World War to solve business disputes within various
trade associations such as the cotton trade association, etc. When Japan
was occupied for seven years from 1945 to 1952 by the Allied Forces,
the occupation authority’s anti-monopoly policy was not compatible with
these trade associations and their dispute settlement function. Thus, a law
of 1948 prohibited arbitration by all trade associations except the
arbitration service by the Japan Shipping Exchange (‘JSE’). This
organization was formed in 1921 after the English model and started a
maritime arbitration service in 1926. JSE arbitration came to the brink of
extinction but was somehow able survive the post-war crisis, perhaps
thanks to its English origin. A more general arbitration institution was
later formed in 1952, the last year of the occupation, based on the model
of the American Arbitration Association within the framework of the
Japan Chamber of Commerce and Industry.
Certain traditions were being built during the pre-war period under
the arbitration law of 1890 (part of Code of Civil Procedure of 1890) but
their further development was interrupted by the war and the post-war
reform. From the 1950s on, therefore, a new history of Japanese
arbitration had to be written almost afresh. Yet, the post-war economy
under reconstruction was not mature enough for decades to require a
PART A
Japan
Yasuhei Taniguchi
Tatsuya Nakamura
______________________________________________________
Contents
[1] INTRODUCTION
[2] LEGISLATION
[2.1] Arbitration law
[2.2] Application
[2.3] Arbitrability
[3] ARBITRATION AGREEMENTS
[3.1] Contract clause and submission agreement
[3.2] Requirement of writing
[3.3] Parties to the arbitration agreement
[3.4] Separability/autonomy of the arbitration agreement
[3.5] Effect of arbitration agreement
[3.6] Consumer arbitration and individual employment arbitration
[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL
[4.1] Qualification
[4.2] Number and selection of arbitrators
[4.3] Challenging an arbitrator
[4.4] Removal of arbitrators
[4.5] Immunity of arbitrators
[4.6] Corruption of arbitrators
[4.7] Replacement of arbitrator
[4.8] Remuneration of arbitrators
[5] ARBITRATION PROCEDURE
[5.1] General
[5.2] Commencement of arbitral proceedings
[5.3] Place of arbitration
[5.4] Hearings
[5.5] Evidence and experts
[5.6] Representation
This chapter is from the Arbitration in Asia.
© JurisNet, LLC 2013 www.arbitrationlaw.com
(Rel. 4-2012)
[5.7] Applicable law
[5.8] Interim measures of protection
[5.9] Plea as to the jurisdiction of the arbitral tribunal
[5.9.1] Settlement
[5.9.2] Costs of arbitration
[5.9.3] Default
[6] AWARDS
[6.1] Types of award
[6.2] Making of the award
[6.3] Form of the award
[6.4] Correction and interpretation
[6.5] Additional award
[6.6] Delivery of the award
[6.7] Setting aside of awards
[7] JUDICIAL ASSISTANCE AND INTERVENTION
[7.1] Taking of evidence
[7.2] Service of written notice
[7.3] No court intervention
[8] RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARDS
[8.1] Enforcement pursuant to domestic law
[8.2] Enforcement pursuant to international agreements
[8.3] Enforcement of awards abroad
[9] PRACTICAL INFORMATION
[9.1] Arbitral institutions
[9.2] Visa requirements
[9.3] Taxation
[10] APPENDICES (on CD)
[10.1] Arbitration Law (Law No. 138 of 2003)
[10.2] The JCAA Commercial Arbitration Rules
As Amended and Effective on January 1, 2008
[10.3] The JCAA Arbitration Fee Regulations
As Amended and Effective on March 1, 2004
[10.4] The JCAA Regulations for Arbitrator’s Remuneration
As Amended and Effective on January 1, 2008
Yasuhei Taniguchi is Professor of law at Tokyo Keizai University, and attorney at law in Tokyo. Professor Taniguchi is former President of the Japanese Association of Civil Procedure and currently Vice-President of the International Association of Procedural Law.
Tatsuya Nakamura obtained his B.E. in 1980 at the University of Osaka Prefecture, LL.B. in 1993 at the Keio University in Tokyo and LL.M. in 1996 at the University of Tsukuba in Tokyo. He is Professor of
Law at Kokushikan University in Tokyo and General Manager at JCAA.
