A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

Japan.

2. Date of entry into force of the New York Convention

18 Sept. 1961.

3. Has any reservation been made under Art. I(3) of the New York Convention regarding:

(a) reciprocity?

Yes. However, Japan’s Arbitration Law contains provisions on recognition and enforcement, which apply to awards rendered abroad, whether or not they are rendered in a New York Convention Contracting State. The conditions laid down in those provisions are the same as in the New York Convention.

(Source: Arbitration Law, Arts. 45, 46.)

(b) commercial relationships?

No.

4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?

Only awards made in the territory of another State are treated as non-domestic under Japanese law.

However, Japan’s Arbitration Law contains provisions on recognition and enforcement of arbitration awards that apply regardless of whether the award is domestic or non-domestic. The conditions laid down in those provisions are the same as in the New York Convention.

(Source: Arbitration Law, Arts. 45, 46.)

B. National sources of law

5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?

  1. Arbitration Law (Law No. 138, 2003);
  2. Code of Civil Procedure (Law No. 109, 1996);
  3. Civil Execution Act (Law No. 4, 1979);
  4. Rules of Supreme Court for Civil Execution (Rules of Supreme Court No. 5, 1979).

C. Limitation periods (time limits)

6.

(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

No.

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

N/A.

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

District court.

(Source: Arbitration Law, Arts. 5.1, 46.4.)

8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?

A district court accepts jurisdiction over actions to recognize and enforce foreign awards in any of the following situations:

  1. the parties have agreed to assign jurisdiction to the district court;
  2. the seat of the arbitration in which the award to be recognized/enforced was made is located within the district court’s jurisdiction;
  3. the domicile of the respondent is located within the district court’s jurisdiction; or
  4. the object claimed or the assets of the respondent are located within the district court’s jurisdiction.

(Source: Arbitration Law, Arts. 5.1, 46.4.)

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

The first decision granting enforcement is generally obtained through inter partes proceedings.

(Source: Arbitration Law, Arts. 46.10, 44.5; Code of Civil Procedure, Art. 87.1.)

10.

(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

Yes.

(b) How many levels of appeal or recourse are available against this decision?

Two. At the first level: an appeal against the district court’s decision may be filed with a high court.

(Source: Arbitration Law, Arts. 46.10, 44.8; Code of Civil Procedure, Art. 328.1.)

At the second level, an appeal against the high court’s decision may be filed with the Supreme Court. However, the grounds on which this appeal may be made are strictly limited.

(Source: Code of Civil Procedure, Art. 337.)

11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?

Execution against assets may be obtained after expiry of the time limit for filing an appeal against the first decision granting enforcement of an award (one week following the date on which the decision granting enforcement was issued). Execution is suspended once an appeal is filed.

(Source: Civil Execution Law, Art. 22; Arbitration Law, Art. 46.6; Code of Civil Procedure, Art. 332.)

E. Evidence required

12.

(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?

The following evidence must be supplied:

  1. a copy of the arbitral award;
  2. a document certifying that the content of the copy is identical to the original award;
  3. a Japanese translation of the award (except where the award was made in Japanese).

There is no need to supply the arbitration clause.

(Source: Arbitration Law, Art. 46.2.)

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?

It is necessary to provide documents mentioned above in their entirety.

(Source: Arbitration Law, Art. 46.2.)

(c) Are originals or duly certified copies required?

A duly certificated copy of the arbitral award is required, as mentioned in Q.12(a) above.

(Source: Arbitration Law, Art. 46.2.)

(d) How many originals or duly certified copies are required?

One duly certificated copy of the arbitral award is required.

(Source: Arbitration Law, Art. 46.2.)

(e) Does the authority or court keep the originals that are filed?

N/A (It is not necessary to provide an original of the award).

13.

(a) Is it necessary to provide a translation of the documents supplied?

It is necessary to provide a translation of the award (except if the award was made in Japanese).

(Source: Arbitration Law, Art. 46.2.)

(b) If yes, into what language?

Japanese.

(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?

No.

(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?

Yes. It is necessary to provide a full translation of the entire award.

(Source: Arbitration Law, Art. 46.2.)

F. Stay of enforcement

14.

(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?

Yes.

(Source: Arbitration Law, Art. 46.3.)

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

None.

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

No. However, if requested, the court may exercise its discretion to order the provision of security.

(Source: Arbitration Law, Art. 46.3.)

G. Confidentiality

15.

(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?

Yes. However, the case records of court proceedings based on the Arbitration Law can be read or copied only by a party with an interest. Japanese law is unsettled as to who qualifies as ‘a party with an interest’.

(Source: Arbitration Law, Art. 9.)

(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?

The first decision granting enforcement is obtained through one of two types of inter partes proceedings: an oral hearing open to the public or an oral proceeding attended by the parties only. A judge has discretion to decide which type of proceedings should be used. In practice, preference is given to the second type, which allows confidentiality to be maintained.

(Source: Arbitration Law, Arts. 46.10, 44.5.)

(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?

Decisions on recognition and enforcement may be published. In practice, names of parties and confidential information are normally removed by the publisher.

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

Only final awards are subject to recognition and enforcement. As long as they are final, partial awards may thus be recognized and enforced.

(Source: Arbitration Law, Art. 45.2.)

17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral

awards (e.g. order requiring a party to deliver up share certificates or other property)?

There is no legal restriction on the type of relief granted in arbitral awards for which recognition and enforcement are sought. It is possible to obtain recognition and enforcement of foreign awards granting non-monetary relief.

(Source: Arbitration Law, Arts. 45, 46.)

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

Japanese statutes do not specify whether a party may obtain recognition and enforcement of only part of the relief granted in a foreign award and case law has not addressed this question directly.

Where an arbitral award contains decisions on matters beyond the scope of the arbitration agreement or the claims made in the arbitral proceedings, which can be separated from the rest of the award, those two parts of the award shall be deemed separate independent arbitral awards.

(Source: Arbitration Law, Art. 45.3.)

19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?

Japanese statutes do not clearly specify whether a foreign award which has been set aside by a competent authority may nonetheless be recognized and enforced and case law has not addressed this question directly. It is worth noting that the Arbitration Law does not use the phrase ‘may be refused’, as used in Art. V(1) of the New York Convention.

The wording of the New York Convention can be interpreted to mean that the court of a Contracting State has discretion to recognize and enforce a foreign award even when it has been set aside by the competent authority referred to in Art. V(1)(e). Art. 45.2 of the Japanese Arbitration Law uses ‘do’ instead of ‘may’.

Accordingly, it would appear that a Japanese court cannot be considered as having discretion to recognize and enforce a foreign award that has been set aside by the competent authority.

(Source: Arbitration Law, Art. 45.2.)

20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?

No.

Country Rapporteur: Yoshihisa Hayakawa