Practical cross-border insights into international
arbitration work

International Arbitration

2023
20th Edition
Contributing Editors:

Steven Finizio & Charlie Caher
Wilmer Cutler Pickering Hale and Dorr LLP

Table of Contents

Preface
Gary Born, Chair, International Arbitration Practice Group & Charlie Caher, Partner
Wilmer Cutler Pickering Hale and Dorr LLP

Expert Analysis Chapters
1

Climate Change Arbitration: An Update
Charlie Caher & Marleen Krueger, Wilmer Cutler Pickering Hale and Dorr LLP

9Arbitration and State Immunity: Time for a Reassessment?
Alexander Scard & Natalia Hniezdilova, Kennedys

16Pre-award Interest, and the Difference Between Interest and Investment Returns
Gervase MacGregor & Matthew McDevitt, BDO LLP

Asia Pacific20

Overview
Dr. Colin Ong Legal Services: Dr. Colin Ong KC

37

Australia
HFW Australia: Nick Longley & Chris Cho

49

BruneiDr. Colin Ong Legal Services: Dr. Colin Ong KC

58

China
SGLA Law Firm: Dr. Xu Guojian

71

Hong Kong
K&L Gates: Christopher Tung

81

93

India
Kachwaha and Partners: Sumeet Kachwaha &Tara Shahani

103

111
120

130

142

Korea
Bae, Kim & Lee LLC: Tony Dongwook Kang,
Hongjoong Kim & Hansol Lee
Macau
BN Lawyers: Bruno Nunes
Malaysia
Cheah Teh & Su: Teh Eng Lay, Poh Jonn Sen &Andy Gan Kok Jin
New ZealandBankside Chambers: Hon Paul Heath KC,
Dr. Anna Kirk, Lauren Lindsay & Ben Prewett
Singapore
HFW: Adam Richardson & Suzanne Meiklejohn

Japan
Iwata Godo: Shinya Tago, Takuya Uenishi &Landry Guesdon

Central and Eastern Europe and CIS
152
161

Austria
Weber & Co.: Katharina Kitzberger & Stefan Weber

170

Croatia
Vukić and Partners: Zoran Vukić, Iva Sunko &Ema Vukić

180

Romania
Consortium Legal: Adrian IordacheOuter Temple Chambers: Lucian Ilie
Türkiye/Turkey
ECC: Ceren Çakır

Western Europe
189

197

208

Overview
European Court of Arbitration:
Mauro Rubino-Sammartano
CyprusPatrikios Pavlou & Associates LLC: Stavros Pavlou,
Eleana Christofi & Eleni Dionysiou
England & WalesKing & Spalding LLP: Tom Sprange KC,
Shouvik Bhattacharya & Liam Petch

222

230

242

Finland
Attorneys at law Ratiolex Ltd: Timo Ylikantola &Tiina Ruohonen
FranceCartier Meyniel Schneller: Marie-Laure Cartier,Alexandre Meyniel & Yann Schneller
Germany
WAGNER Arbitration: Dr. Joseph Schwartz &Dr. Julian K. Bickmann

251

260

Liechtenstein
Walser Attorneys at Law Ltd.: Dr. iur. Manuel Walser &Lisa Sartor
NorwaySchjødt AS: Hallvard Gilje Aarseth &Andreas A. Johansen

267

274

SwedenAdvokatfirman Fylgia: Philippe Benalal &Erik Persson
Switzerland
Bär & Karrer Ltd.: Aurélie Conrad Hari, Nadja Jaisli &Pascal HachemLatin America
284

290

International Commercial Arbitration in
Latin America
GST LLP: Diego Brian Gosis, Ignacio L. Torterola,
Quinn Smith & Domenico Di Pietro
Argentina
Bomchil: María Inés Corrá & Santiago Lucas Peña

299

307

MexicoBaker McKenzie: Alfonso Cortez Fernández &Francisco Franco
Peru
Montezuma Abogados: Alberto José Montezuma
Chirinos & Mario Juan Carlos Vásquez Rueda

Middle East / Africa
317

323

331

342
353

Middle East and North Africa Overview
Diana Hamade Attorneys at Law: Diana Hamadé,
Khulud Jarrar & Meeral Mia Abu-Ltaif
Ghana
N. Dowuona & Company: Gwendy Bannerman,
Naa Kwaamah Owusu-Baafi & Lilian Kodjoe
Kenya
TripleOKLaw Advocates, LLP: John M. Ohaga,
Isaac Kiche & Pressy Akinyi

361

370

380

MoroccoKettani Law Firm: Professor Azzedine Kettani

United Arab Emirates
Charles Russell Speechlys LLP: Mazin Al Mardhi &Thanos Karvelis
ZambiaDentons Eric Silwamba, Jalasi and Linyama Legal
Practitioners: Joseph Alexander Jalasi, Jr.,
Mwape Chileshe, Chama Simbeye &Wana Chinyemba
Zimbabwe
Gwaunza & Mapota: Mercy Sibongile Gwaunza &Tecler Mapota

Nigeria
Udo Udoma & Belo-Osagie: Mena Ajakpovi,
Festus Onyia, Olamide Aleshinloye & Omeiza Alao

North America
386

399

Overview
Paul, Weiss, Rifkind, Wharton & Garrison LLP:
H. Christopher Boehning & Carter Greenbaum
BermudaKennedys: Mark Chudleigh & Erik Penz

409
417

Turks and Caicos Islands
Wilson Wells: Stephen M. Wilson KC
USA
Williams & Connolly LLP: John J. Buckley, Jr. &Jonathan M. Landy

Chapter 10

Japan

Japan
Shinya Tago

Takuya Uenishi

Iwata Godo

12

Arbitration Agreements

1.1 What, if any, are the legal requirements ofan arbitration agreement under the laws of yourjurisdiction?

The arbitration agreement must be in writing (Article 13(2) ofthe Arbitration Act, Act No. 138 of 1 August 2003 (ArbitrationAct)). Documents signed by all the parties or letters exchanged
between the parties, including documents exchanged by fax orother communication devices, and other written instruments,
are acceptable. The agreement can be made by means of electronic record, i.e., records produced by electronic, magnetic or
any other means not recognisable by natural senses and used by
a computer. For instance, an e-mail would satisfy the written
form requirement (Article 13(3) and (4) of the Arbitration Act).
In addition, if a request for arbitration submitted by a party
contains the contents of an arbitration agreement and the written
response submitted by the other party does not contain anything
to dispute it, such arbitration agreement shall be deemed to havebeen made in writing (Article 13(5) of the Arbitration Act).
Article 13(1) provides that the agreement is valid only when thesubject matter relates to a civil dispute (excluding divorce, etc.)that can be resolved by settlement between the parties.
In line with the 2006 UNCITRAL Model Law, the amended
Arbitration Act (see our response to question 2.1) enables an arbitration agreement to meet the writing requirement even where itis part of a contract that has been concluded orally, by conduct,or by other means. A newly added Article 13(6) provides that
if a non-written contract incorporates a written or electromagnetic record of arbitration agreement by reference as part ofsuch contract, the arbitration agreement incorporated in suchnon-written contract is deemed to have been made in writing.
1.2 What other elements ought to be incorporated in anarbitration agreement?

The Arbitration Act does not specify the elements that ought
to be incorporated in the agreement. Typically, the following
would be included: the parties; the scope of the arbitrationagreement (i.e., the type of disputes that can be referred to arbitration); the seat of arbitration, which can be different from thevenue and determines the procedural law of the arbitration; theInternational Arbitration 2023
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Landry Guesdon

governing law of the agreement which can differ from the lawof the substantive contract; the choice of rules if the rules ofan arbitral institution govern the proceedings or in case of ad
hoc arbitration (the number and appointment of arbitrators andtheir characteristics and qualification); the language of the arbitration; and a clause dealing with confidentiality.
1.3 What has been the approach of the national courts
to the enforcement of arbitration agreements?

In general, Japanese courts are pro-arbitration and will terminate(as opposed to simply staying) court proceedings in favour ofarbitration if the arbitration agreement is valid and the dispute is
arbitrable and falls within the scope of the arbitration agreement.
Article 14(1) of the Arbitration Act provides that if an action is
filed for a civil dispute subject to an arbitration agreement, thecourt must dismiss the action without prejudice upon the petition of the defendant, unless the court finds that the arbitrationagreement is null and void, cancelled or for some reason invalid,or that arbitral proceedings are inoperative or incapable of being
performed based on the arbitration agreement.

22

Governing Legislation

2.1 What legislation governs the enforcement ofarbitration proceedings in your jurisdiction?

The Arbitration Act is applicable to arbitral proceedings whose
seat of arbitration is in Japan. It is based on the 2006 UNCITRAL Model Law. On 21 April 2023, the Japanese Dietapproved the Act Partially Amending the Arbitration Act (ActNo. 15 of 2023) and the Act for Implementation of the United
Nations Convention on International Settlement Agreements
Resulting from Mediation (the Singapore Convention) (Act No.
16 of 2023). The amendments incorporate changes made in the2006 UNCITRAL Model Law. The amended Arbitration Act isscheduled to come into force by April 2024 at the latest, and theMediation Act will come into force with Japan’s accession to theSingapore Convention. In addition, the Supreme Court Rules on
Procedures of Arbitration Related Cases (Supreme Court RuleNo. 27 of 26 November 2003) prescribe procedural rules forcourt cases relating to arbitration.

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Japan

2.2 Does the same arbitration law govern both
domestic and international arbitration proceedings? If
not, how do they differ?

No distinction is drawn between domestic and international
arbitration. The Arbitration Act sets out procedural rules, butshould the parties specifically agree on other procedural rules(for example, the JCAA’s Commercial Arbitration Rules or the
ICC Arbitration Rules), these rules will override the Arbitration
Act, which will only fill the gaps.
2.3 Is the law governing international arbitration basedon the UNCITRAL Model Law? Are there significant
differences between the two?

The Arbitration Act is based on the 2006 UNCITRAL Model
Law but the main differences are as follows:■
It applies to arbitration regardless of whether it is international or commercial, while the 2006 UNCITRAL Model
Law applies explicitly to international commercial arbitration.
■
It includes special provisions for the protection of consumers
and individual employees in arbitration. With respect to thelatter, the Act on Promoting the Resolution of Individual
Labour-Related Disputes (Act No. 112 of 11 July 2001)
promotes the swift resolution of individual labour disputes
between employees and employers through mediation.
■
It provides that if an arbitration agreement is made by wayof electronic or magnetic record (such as e-mail), it will bedeemed to have been made in writing.
Revisions to bring the Arbitration Act in line with the latest
2006 UNCITRAL Model Law were enacted in April 2023 (seeour response to question 2.1).
2.4 To what extent are there mandatory rules governinginternational arbitration proceedings sited in yourjurisdiction?

There are no mandatory rules under the Arbitration Act, except
for certain mandatory procedural rules affecting procedural public policy that may not be contracted out, and most of its provisions dealing with procedural aspects can be modified throughan agreement between the parties.

32

Jurisdiction

3.1 Are there any subject matters that may not bereferred to arbitration under the governing law of yourjurisdiction? What is the general approach used indetermining whether or not a dispute is “arbitrable”?

Article 13(1) of the Arbitration Act provides that a matter is arbitrable where the subject matter relates to a civil dispute that can be
resolved by settlement between the parties (disputes concerning
divorce and separation being expressly excluded based on thepremise that referring those disputes to a third party should be
limited to the national courts). Unlike the 2006 UNCITRAL
Model Law, the Arbitration Act includes specific provisions forthe protection of consumers and individual employees (Appendix,
Articles 3 and 4). A consumer can unilaterally terminate an agreement with a business operator to submit future disputes to arbitration. An arbitration agreement relating to labour disputesthat may arise in the future between an individual employee andtheir employer is null and void. Disputes generally not arbitrable
include, for instance: those pertaining to intellectual property
rights granted by the government such as patent and trademark

rights; taxation disputes that would bind the tax authorities; insolvency proceedings; and criminal and certain family law matters.
3.2 Is an arbitral tribunal permitted to rule on thequestion of its own jurisdiction?

Article 23 of the Arbitration Act adopts the principle of competence-competence. An arbitral tribunal may rule on its on its
own jurisdiction to decide the dispute. It may make a decisionon this preliminary issue either in a ruling on the existence orvalidity of an arbitration agreement separate from the final award
or in the final award. Where an arbitral tribunal rules that it has
jurisdiction in the former case, any party who is dissatisfied withthe decision can request, within 30 days of receiving notice ofthat ruling, that a Japanese court decide whether the tribunal has
jurisdiction; and, in the latter case, that the court set aside theaward. If the arbitral tribunal rules that it has no jurisdiction, thedecision will result in the termination of the arbitral proceedings.
3.3 What is the approach of the national courts inyour jurisdiction towards a party who commences
court proceedings in apparent breach of an arbitrationagreement?

In principle, a valid arbitration agreement constitutes a bar tocourt proceedings. According to Article 14(1) of the Arbitration
Act, if the defendant petitions a court before which an action isbrought in a civil dispute which is the subject of an arbitrationagreement, the court must dismiss the action, except when:■
The arbitration agreement is null and void, rescinded orinvalid for some other reason.
■
Arbitration proceedings are inoperative or incapable ofbeing performed based on the arbitration agreement.
■
The petition is filed by the defendant after their presentation on the merits in the oral hearing or in preparatory
proceedings.
Article 14(2) provides that the arbitral tribunal may commenceor continue the arbitration proceedings and make an arbitralaward even while an action is pending before the court.
3.4 Under what circumstances can a national court
address the issue of the jurisdiction and competence ofan arbitral tribunal? What is the standard of review inrespect of a tribunal’s decision as to its own jurisdiction?

As explained in our response to question 3.2, courts have limited
power to intervene to address the issue of the jurisdiction andcompetence of an arbitral tribunal. Where an arbitral tribunal
rules that it has jurisdiction, any party who is dissatisfied withthe decision can request, within 30 days of receiving notice ofthat ruling, that a Japanese court decide whether the tribunal has
jurisdiction (Article 23(5) of the Arbitration Act). A party whois dissatisfied with the decision entrenched in the final award
may request the court to set aside the award.
3.5 Under what, if any, circumstances does thenational law of your jurisdiction allow an arbitral tribunal
to assume jurisdiction over individuals or entities which
are not themselves party to an agreement to arbitrate?

The Arbitration Act does not provide for circumstances underwhich an arbitral tribunal would assume or assert jurisdiction overindividuals or entities which are not themselves party to an agreement to arbitrate. In principle, a contract containing an arbitration clause or an arbitration agreement does not apply to third
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Iwata Godoparties who are not a party thereto. There is, however, a casein which the Tokyo High Court found that the scope of an arbitration agreement could be extended with respect to the parties
to arbitration proceedings as a result of the application of the
US Federal Arbitration Act, which is the law applied in New
York, the agreed place of arbitration; New York law, having been
determined to be applicable pursuant to Article 7(1) of the Act
on General Rules of Application of Laws (Act No. 78 of 2007,
Horei ), the Japanese statutory conflict of law rules (KK Nihon
Kyoiku-sha v. Kenneth J. Feld ( Tokyo High Court, 30 May 1994));
appeal to the Supreme Court was denied (Ringling Circus case,Supreme Court, 4 September 1997). In addition to this landmark
case on international arbitration agreements is a lower court decision, in which the Nagoya District Court held that the arbitration clause in a contract entered into by a company would extend
to individuals closely associated with said company (Nagoya
District Court, 27 October 1995, Kaijiho Kenkyu).
3.6 What laws or rules prescribe limitation periods forthe commencement of arbitrations in your jurisdiction
and what is the typical length of such periods? Do thenational courts of your jurisdiction consider such rules
procedural or substantive, i.e., what choice of law rules
govern the application of limitation periods?

The Arbitration Act does not prescribe any limitation periods
for the commencement of arbitration proceedings. Under Japanese law, the rules governing limitation periods are substantive
rather than procedural. Accordingly, the parties may select thestatute of limitations pursuant to the Act on General Rules ofApplication of Laws. For instance, under the recently amended
Civil Code, civil and commercial claims will generally be timebarred if they are not made within five years after the obligee
has come to know of the exercisable rights, or ten years after
the rights have become exercisable (Article 166(1), Civil Code).
The commencement of arbitration proceedings will toll theprescriptive period. However, this does not apply to cases where
the arbitration proceedings have been terminated without anarbitral award (Article 29(2) of the Arbitration Act).
3.7 What is the effect in your jurisdiction of pending
insolvency proceedings affecting one or more of theparties to ongoing arbitration proceedings?

Article 44(1) of the Bankruptcy Act (Act No. 75 of 2005) provides
that, when an order of commencement of bankruptcy proceedings is issued, all legal proceedings relating to the bankruptcy
estate in which the bankrupted stands as a party must be discontinued. Other insolvency laws, such as the Civil Rehabilitation
Act (Act No. 225 of 2000) and the Corporate Reorganisation Act(Act No. 154 of 2002) contain similar provisions. In the absenceof a court decision in this connection, whether these articles
apply to arbitration is still a moot point, as the original wordingused in Japanese for legal proceedings in the article usually refers
to court proceedings. Therefore, it is still difficult to assess theeffect of ongoing insolvency proceedings on arbitration proceedings. Certain legal scholars argue that arbitration proceedings
should be suspended upon the commencement of insolvency proceedings and resume once a bankruptcy trustee is appointed.

42

Choice of Law Rules

4.1 How is the law applicable to the substance of adispute determined?

Under the Arbitration Act, the substantive law applied to theInternational Arbitration 2023
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dispute by the arbitral tribunal is the law agreed by the parties.
Absent an agreement on the applicable law, the tribunal applies
the law of the state with which the dispute is most closely
connected (Article 36(1) and (2)). Notwithstanding these provisions, the tribunal will decide ex aequo et bono if it has been
expressly authorised to do so by the parties (Article 36(3)). In
case of contractual dispute, the tribunal will decide in accordance with the terms of the contract and take into account applicable usages, if any (Article 36(4)).
4.2 In what circumstances will mandatory laws (ofthe seat or of another jurisdiction) prevail over the law
chosen by the parties?

The Arbitration Act does not provide for mandatory rules thatwould prevail over the parties’ express choice of law. In general,
where regulatory issues (e.g., relating to labour law, antitrust andpatent law) are involved, mandatory laws may prevail over thelaw chosen by the parties to the arbitration.
4.3 What choice of law rules govern the formation,
validity, and legality of arbitration agreements?

According to Article 44(1), item 2 of the Arbitration Act, thevalidity and legality of an arbitration agreement is governedby the law agreed upon by the parties as the applicable law, orabsent such an agreement, by the laws of Japan.

52

Selection of Arbitral Tribunal

5.1 Are there any limits to the parties’ autonomy toselect arbitrators?

There are no specified limits to the parties’ autonomy to selectarbitrators, and in the same way as the 2006 UNCITRAL Model
Law, the Arbitration Act allows the parties extensive autonomy
in relation to the selection of arbitrators, and the parties arefree to determine the number of arbitrators and the procedure
for appointing them (Articles 16(1) and 17(1), Arbitration Act).
If the parties fail to agree on the number of arbitrators, their
number is fixed at three as the default rules. In multi-party
arbitration (i.e., arbitration involving two or more parties), thecourt will also determine the number of arbitrators based on theparties’ requests (Article 16(2) and (3), Arbitration Act). Where
the parties have agreed on institutional arbitration, the rules of
the institution generally include detailed procedures which willsupersede those set forth in the Arbitration Act.
Under the Arbitration Act, there are no nationality, residenceor professional requirements for arbitrators, unless otherwise
agreed by the parties (e.g., Article 17(6), item 1 for qualification).
5.2 If the parties’ chosen method for selecting
arbitrators fails, is there a default procedure?

The parties are free to agree on the procedure for the appointment of arbitrators (see question 5.1). In the absence of agreementon the appointment procedure, the Arbitration Act provides forthe default rules as follows:■
If there are two parties and three arbitrators to be appointed,
each party must appoint one arbitrator, and those arbitrators will in turn appoint the third arbitrator.
■
If a party fails to appoint an arbitrator within 30 days ofreceiving a request to do so from the other party that has
appointed an arbitrator, the court must appoint the arbitrator at the request of that party.

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Japan

■

If the two arbitrators fail to appoint a third arbitrator
within 30 days of their appointment, the court must
appoint the third arbitrator at the request of either of theparties (Article 17(2) of the Arbitration Act).
If there are two parties and a sole arbitrator is to beappointed but the parties are unable to agree on the arbitrator, the court shall appoint an arbitrator at the requestof either of the parties (Article 17(3)).
In multi-party arbitration (involving three or more parties),
the court shall appoint arbitrators at the request of a party(Article 17(4)).

■■

5.3 Can a court intervene in the selection ofarbitrators? If so, how?

See Question 5.2. The courts can select arbitrators upon the
petition of a party if there is no agreement on the selectionof arbitrators, or the parties’ party-appointed arbitrators failto select arbitrators. In selecting arbitrators, the court shallconsider the following factors: (i) the requirements applicable tothe arbitrators under the agreement of the parties; (ii) the impartiality and independence of the appointees; and (iii) whether it
would be appropriate to appoint an arbitrator of a nationality
other than that of the parties (Article 17(6)).
Under Article 20 of the Arbitration Act, if an arbitrator becomesde jure or de facto unable to perform their duties, or, for otherreasons, causes undue delay in performing these duties, a party canapply for the removal of the arbitrator and the court must remove
the arbitrator on these grounds if they are found to exist.
5.4 What are the requirements (if any) imposed bylaw or issued by arbitration institutions within yourjurisdiction as to arbitrator independence, neutrality
and/or impartiality and for disclosure of potential
conflicts of interest for arbitrators?

Under the Arbitration Act, all arbitrators, including those
appointed by the parties, are required to be impartial and independent. If circumstances exist which give rise to justifiable doubts
as to an arbitrator’s impartiality or independence, the arbitrator
can be challenged (Article 18(1)(ii)). A person who is approached
as a potential candidate must disclose all facts that could give rise
to justifiable doubts as to their impartiality and independence(Article 18(3)) and the same duty is required with respect to anarbitrator in the course of the arbitral proceedings (Article 18(4)).

62Procedural Rules

6.1 Are there laws or rules governing the procedureof arbitration in your jurisdiction? If so, do those laws
or rules apply to all arbitral proceedings sited in yourjurisdiction?

Japanese law imposes few limits on the parties’ choice of procedural rules for arbitration. The Arbitration Act allows theparties to freely determine the rules of procedure and the arbitral tribunal is bound by these rules. Absent an agreement
between the parties, the tribunal has broad discretion to determine the rules and conduct the arbitration in such a manner as it
deems appropriate (Article 26(2)). The procedural rules selectedby the parties, as well as the rights of each party or the arbitral
tribunal, are subject to basic mandatory principles set forth in
Article 25 of the Arbitration Act, regarding the equal treatmentof the parties and due process/the right of each party to be given
full opportunity to present their case in the proceedings, andin Article 26(1) which provides that the rules must not violate
public order.
In addition, the Arbitration Act provides for a number of default
rules with respect to procedure, including the: appointment of anarbitrator (Article 17); determination of the jurisdiction of the arbitral tribunal (Article 23(5)); waiver of the right to object (Article27); place of arbitration (Article 28); commencement of arbitral proceedings and tolling of limitation (Article 29); language(Article 30); time limitation on parties’ statements (Article 31); oral
hearings (Article 32); default of a party (Article 33); expert appointment by the tribunal (Article 34) and taking of evidence (Article 35).
6.2 In arbitration proceedings conducted in yourjurisdiction, are there any particular procedural steps
that are required by law?

Certain procedural steps are required under the Arbitration
Act: see our response to question 6.1 on equal treatment anddue process (Article 25). In addition, other procedural steps
include: considering the tribunal’s jurisdiction under the competence-competence rule (Article 23(1)); time limitation for arguing
about the tribunal’s jurisdiction (Article 23(2)); prior notice oforal hearings (Article 32(3)); access to the other partys’ brief anddocumentary evidence (Article 32(4)); court assistance in taking
evidence (Article 35); form of the award (Article 39); and termination of arbitral proceedings (Article 40).
6.3 Are there any particular rules that govern the
conduct of counsel from your jurisdiction in arbitralproceedings sited in your jurisdiction? If so: (i) do thosesame rules also govern the conduct of counsel fromyour jurisdiction in arbitral proceedings sited elsewhere;and (ii) do those same rules also govern the conduct ofcounsel from countries other than your jurisdiction inarbitral proceedings sited in your jurisdiction?

There are no specific rules that govern the conduct of Japanese
counsel in arbitral proceedings in Japan.
6.4 What powers and duties does the national law of
your jurisdiction impose upon arbitrators?

Duties include the obligation to comply with the overarching
principles described in question 6.1. The Arbitration Act vests
a wide range of powers in the arbitral tribunal. It gives thearbitral tribunal the authority to rule on its own jurisdiction(competence-competence) (Article 23(1)), and the power to issueorders to take interim or provisional measures as the tribunal may
deem necessary, and to order a party to provide security in relation therewith (Article 24). If there is no agreement between theparties, the tribunal can determine the rules and conduct the arbitration in such a manner as it considers appropriate (Article 26(2)).
The tribunal has the power to hold oral hearings (Article 32), toappoint expert witnesses (Article 34) and authorise a party toapply to the court for assistance in witness examination and moregenerally with the examination of evidence (Article 35(2)).
6.5 Are there rules restricting the appearance of
lawyers from other jurisdictions in legal matters in yourjurisdiction and, if so, is it clear that such restrictions
do not apply to arbitration proceedings sited in yourjurisdiction?

The Arbitration Act does not require any specific qualifications
for arbitrators. The Attorneys Act (Act No. 205 of 1949) prohibits
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Iwata Godo

non-lawyers (including lawyers admitted in foreign jurisdictions)from conducting legal business in Japan, provided that the foregoing does not apply if there is a provision to the contrary in thisAct or another law (Article 72). A foreign lawyer registered inJapan may handle certain legal business in Japan, but only to theextent permitted under the Act on Special Measures concerning
the Handling of Legal Services by Foreign Lawyers (Act No. 66
of 1986), and this Act provides that lawyers admitted in foreign
jurisdictions, whether registered in Japan or not, may represent
in international arbitration proceedings (Articles 5-3 and 59(2)).
6.6 To what extent are there laws or rules in yourjurisdiction providing for arbitrator immunity?

There are no laws or rules providing for arbitrator immunity
in Japan. The Arbitration Act does not contain provisions on
the liability of an arbitrator. In institutional arbitration, theprovisions of the arbitration rules of the institution apply. For
instance, Article 13 of the JCAA’s Commercial Arbitration Rules
provides that the arbitrators are not liable to anyone for any act
or omission in connection with the arbitration, unless such act
or omission is shown to constitute wilful or gross negligence.
6.7 Do the national courts have jurisdiction to deal withprocedural issues arising during an arbitration?

No – Article 4 of the Arbitration Act provides that, with respect
to arbitration proceedings, the court may exercise its authority
only in the cases provided for in the Act. The courts may intervene or support arbitration proceedings only when requestedby the parties to the arbitration, and once the arbitral tribunal
is established, procedural issues should be handled by thetribunal (Article 23(1)). For example, a court can assist a party
with respect to service of written notice (Article 12), arbitrator
appointments, challenges and removals (Articles 17, 19 and 20,
respectively), challenging the jurisdiction of an arbitral tribunal(Article 23(5)), examination of evidence by the court (Article 35)
and setting aside arbitral awards (Article 44).

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Preliminary Relief and Interim Measures

7.1 Is an arbitral tribunal in your jurisdiction permitted
to award preliminary or interim relief? If so, what typesof relief? Must an arbitral tribunal seek the assistanceof a court to do so?

Yes – unless otherwise agreed by the parties, an arbitral tribunal
can order any party to take any interim measures or provisional
measures that the arbitral tribunal considers necessary in respectof the subject matter of the dispute, upon the petition of a party(Article 24(1) of the Arbitration Act). In such cases, the arbitral
tribunal can require any party to provide appropriate security inconnection with such measures (Article 24(2) of the Arbitration
Act). The arbitral tribunal can exercise such powers without any
assistance from the court. However, an interim order made by thearbitral tribunal may not be enforceable by a Japanese court, andif a party needs enforceability, it may apply to the court for appropriate measures under the Civil Provisional Remedies Act (ActNo. 91 of 1989) (see our response to Question 7.6 on upcomingchanges).
Under Article 71 of the JCAA’s Commercial Arbitration
Rules, a party may apply to the arbitral tribunal for the grantof interim measures. Interim measures include, for example,
orders to: (1) maintain or restore the status quo; (2) take actionthat would prevent, or refrain from taking action that is likely
to cause, current or imminent harm or prejudice to the arbitral
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proceedings themselves; (3) provide a means of preserving
assets out of which a subsequent arbitral award may be satisfied;or (4) preserve evidence that may be relevant and material to theresolution of the dispute. The party requesting measures under
Article 71.1(1), (2) and (3) must satisfy the arbitral tribunal that
harm not adequately reparable is likely to result if the measure is
not ordered and there is a reasonable possibility that the applicant will succeed on the merits of the claim.
7.2 Is a court entitled to grant preliminary or interim
relief in proceedings subject to arbitration? In whatcircumstances? Can a party’s request to a court for
relief have any effect on the jurisdiction of the arbitration
tribunal?

According to Article 15 of the Arbitration Act, an arbitrationagreement does not preclude the parties from filing a petition,
before the commencement or during the course of the arbitration
proceedings, for a provisional order with the court with respect
to a civil dispute referred to arbitration, and the court that hasreceived such petition, from issuing a provisional order.
7.3 In practice, what is the approach of the national
courts to requests for interim relief by parties toarbitration agreements?

The Japanese courts will apply the Civil Provisional Remedies Act to arbitration proceedings as it would do under othercircumstances. The courts will assess whether the requirements
for a temporary restraining order are satisfied under the Act.
Pursuant to Article 13(1), a petition for a temporary restraining
order can be filed, provided the purpose thereof, as well as theright or relationship of rights to be preserved and the necessity
to preserve it, can be evidenced by making a prima facie showing.
The courts may order either party to provide appropriate security for interim relief (Article 24).
7.4 Under what circumstances will a national court ofyour jurisdiction issue an anti-suit injunction in aid of anarbitration?

Japanese courts may not issue an anti-suit injunction in aid of arbitration under any circumstances. In pursuance of Article 14(1) of
the Arbitration Act, the courts, upon a petition by a party, must
dismiss a claim on the merits relating to a civil dispute that is
subject to an arbitration agreement (save in limited circumstances
described in our response to question 3.3).
7.5 Does the law of your jurisdiction allow for thenational court and/or arbitral tribunal to order security
for costs?

Yes – both the courts and arbitral tribunals may order a party toprovide appropriate security for the interim measures they order(Article 14(1) of the Civil Provisional Remedies Act and Article
24(2) of the Arbitration Act, respectively).
7.6 What is the approach of national courts to theenforcement of preliminary relief and interim measuresordered by arbitral tribunals in your jurisdiction and inother jurisdictions?

Unless otherwise agreed by the parties, an arbitral tribunal canorder any party to take any interim measures or preservative

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measures that the arbitral tribunal considers necessary in respect of
the subject matter of the dispute upon the petition of a party (Article
24(1) of the Arbitration Act). However, an interim order made by
an arbitral tribunal cannot be enforced by a Japanese court, as theorder is not a final and binding arbitral award and does not havethe same effect as a final and binding judgment (Article 45(2)(vii)of the Arbitration Act). In practice, the parties apply for interim
measures ordered by arbitral tribunals upon the assumption thatthe other party(ies) will voluntarily comply. Also, see our response
to question 7.2 on possible court involvement under Article 15.
The amended Arbitration Act, which will come into force by April
2024, allows Japanese courts to enforce interim or provisional
measures that are granted by arbitral tribunals, including measures
aimed at preserving assets to satisfy claims, maintaining the status
quo between the parties, prohibiting conduct harmful to the arbitration process, and preserving evidence.

the court to examine evidence under the Code of Civil Procedure (including obtaining document production orders fromthe court against third parties), unless the parties have agreed
not to request the court to do so. If the court implements said
examination of evidence, an arbitrator may inspect documents,
or may ask witnesses or expert witnesses questions by obtaining
the permission of the presiding judge (Article 35(1) and (5) of
the Arbitration Act). Such a process must comply with the Codeof Civil Procedure. The discovery process is very limited underJapanese law (see our response to question 8.1).

82

The Arbitration Act authorises the tribunal, absent an agreement
to the contrary between the parties, to determine the rules applicable to the production of written and/or oral witness testimony,and the tribunal can decide whether oral or written evidence isrequired, pursuant to Article 26(3). Even if written testimonies
were admissible, the arbitral tribunal generally allows the otherparty(ies) to cross-examine the witnesses at the hearing. The
JCAA has a “documents-only proceedings” option. Apart fromlimited exceptions, the Civil Code of Procedure obligates any
person appearing as a witness under the jurisdiction of Japan tobe sworn under oath (Article 201), but the requirement does not
apply to arbitration.

Evidentiary Matters

8.1 What rules of evidence (if any) apply to arbitralproceedings in your jurisdiction?

The Arbitration Act does not provide for any specific rules ofevidence. The parties can agree on procedural rules, including
such rules in the arbitration agreement. However, absent anagreement between the parties, the arbitral tribunal can implement the arbitration procedure that it deems fit, and order theparties to disclose documents. The authority conferred upon
the arbitral tribunal includes the authority to determine admissibility of evidence, the need to take evidence and its probativevalue (Article 26(3) of the Arbitration Act). Where the parties
have selected institutional arbitration, they usually agree to apply
the arbitration rules of the organisation. The arbitral tribunal ora party acting with its consent may apply to a competent court
for assistance in taking evidence, as provided for in the Code ofCivil Procedure (Law No. 109 of 1996). Importantly, there is
no Japanese equivalent to US-style discovery, and the scope of
discovery and disclosures is usually limited under Japanese law.
The International Bar Association (IBA) Rules on the Taking of
Evidence in International Arbitration are widely used by practitioners and arbitrators as guidelines.
8.2 What powers does an arbitral tribunal have to orderdisclosure/discovery and to require the attendance of
witnesses?

Firstly, see our response to question 8.1.
The parties can agree on rules governing disclosures/discovery
in the arbitration agreement; otherwise, the arbitral tribunal
has broad powers to implement the procedure it shall deem fit(Article 26(3) of the Arbitration Act), and order the parties tomake disclosures. Orders would generally be complied with by
the parties on a voluntary basis, but decisions of the tribunal are
not binding on third parties: it may not compel a third party toappear at a hearing or give/provide evidence, including throughthe production of documents. However, the courts can intervene to assist with the taking of evidence upon the request of
the tribunal or of a party (see also our response to question 8.3).
8.3 Under what circumstances, if any, can a national
court assist arbitral proceedings by ordering disclosure/
discovery or requiring the attendance of witnesses?

Where necessary (failure to comply voluntarily), the arbitral
tribunal, or a party acting with the latter’s consent, can petition

8.4 What, if any, laws, regulations or professional rules
apply to the production of written and/or oral witness
testimony? For example, must witnesses be sworn in
before the tribunal and is cross-examination allowed?

8.5 What is the scope of the privilege rules under
the law of your jurisdiction? For example, do allcommunications with outside counsel and/or in-housecounsel attract privilege? In what circumstances isprivilege deemed to have been waived?

Under Japanese law, there is no clear concept of “attorney-client
privilege” with respect to the production of documents. However,
the right to refuse to testify is granted to certain professionals,
such as attorneys-at-law, patent attorneys or doctors who areprotected by privilege under Article 197(1)(ii) of the Civil Codeof Procedure, with respect to facts learned in the course of theirduties which remain confidential. Under Article 220(iv)(c) of thisCode, documents detailing facts prescribed in Article 197(1)(ii)
are excluded from the disclosure obligation.

92

Making an Award

9.1 What, if any, are the legal requirements of anarbitral award? For example, is there any requirement
under the law of your jurisdiction that the award contains
reasons or that the arbitrators sign every page?

Unless otherwise agreed by the parties, the arbitral award ismade by a majority of the arbitrators. It must also be in writing
and signed by the arbitrators. Where there is a panel of arbitrators, a majority of arbitrators must sign the award, and thereason for the omitted signatures must be stated. The award
must state the reasons on which it is based, unless the parties
have agreed otherwise: the date; and the place of arbitration.
After the award is made, a copy of the written arbitral award
signed by the arbitrator(s) is sent to the parties (Article 39 of the
Arbitration Act). There is no requirement that the arbitrators
should sign every page.

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9.2 What powers (if any) do arbitral tribunals have toclarify, correct or amend an arbitral award?

A tribunal can correct miscalculations, clerical errors and similarerrors in the arbitral award, upon the petition of the parties, orby the tribunal acting on its own initiative (Article 41 of the
Arbitration Act). The parties may ask the tribunal to provide aninterpretation of specific parts of the award, provided there is anagreement between the parties regarding this request (Article 42of the Arbitration Act). The tribunal may make an additional
award in respect of a claim that was presented to the tribunal but
not dealt with in the award upon the parties’ petition (Article 43of the Arbitration Act). These petitions must be filed within 30
days from the date of receipt of the notice of the arbitral award,
unless otherwise agreed by the parties.

102 Challenge of an Award
10.1 On what bases, if any, are parties entitled tochallenge an arbitral award made in your jurisdiction?

An arbitral award cannot be appealed to the court, but it can be
set aside by the court on certain grounds set forth in the Arbitration Act. A party can apply to the court to set aside the arbitral award, provided it does so within three months of the receiptof the award. No application can be filed once an enforcement
decision on the award has become final and conclusive. The
grounds for setting aside the award are listed in Article 44(1): (i)the arbitration agreement is not valid due to limits to a party’s
capacity, or for another reason under applicable law; (ii) the party
making the application was not given notice as required underJapanese law in the proceedings to appoint arbitrators or during
the arbitral proceedings; (iii) the party making the application
was unable to present its case in the proceedings; (iv) the arbitral award contains decisions on matters beyond the scope of
the arbitration agreement or the claims in the arbitral proceedings; (v) the composition of the arbitral tribunal or the arbitralproceedings were not in accordance with Japanese law (or where
the parties have otherwise agreed on matters of law, that do not
relate to public policy, this agreement); (vi) the claims in the arbitral proceedings relate to a dispute that cannot be the subject ofan arbitration agreement under Japanese law; or (vii) the content
of the arbitral award is repugnant to public policy or the good
morals of Japan. The court can set aside the award if it finds
any of the grounds above do exist, provided that, for grounds(i) through (v), the applicant must prove the existence of suchgrounds. The court can set aside the award on its own motion for(vi) and (vii), at the request of the parties for the other grounds.
10.2 Can parties agree to exclude any basis of challenge
against an arbitral award that would otherwise apply as amatter of law?

No specific provision of the Arbitration Act allows parties toagree to exclude any basis of challenge against an arbitral award.
It is generally considered that the parties may not do so.
10.3 Can parties agree to expand the scope of appealof an arbitral award beyond the grounds available in
relevant national laws?

No specific provision of the Arbitration Act precludes parties
from expanding the grounds for appealing an arbitral award, but
this is unlikely. In a judicial precedent, the court, as obiter dictum,
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rejected a party’s argument to set aside the award based on an additional ground set forth in the parties’ agreement (Descente Ltd. v.
Adidas-Salomon AG et al.) (Tokyo District Court, 26 January 2004).
10.4 What is the procedure for appealing an arbitralaward in your jurisdiction?

No appeal is permitted against an arbitral award, but a party
can file a motion to set aside the award with a competent court
within three months of the receipt of the award or before any
enforcement decision has become final and binding (Article 44of the Arbitration Act).

112 Enforcement of an Award
11.1 Has your jurisdiction signed and/or ratified the New
York Convention on the Recognition and Enforcementof Foreign Arbitral Awards? Has it entered any
reservations? What is the relevant national legislation?

Yes – Japan acceded to the New York Convention on 20 June
1961, without any domestic legislation to implement it. Japan
made a reciprocity reservation, by which it recognises andenforces only foreign arbitral awards made in other Member
States. If a party seeks the enforcement of a foreign award
made in a New York Convention Member State, the provisionsof the Convention will apply with direct effect, and Article 46of the Arbitration Act only applies to the enforcement procedure. Foreign awards made in a country which is not party to
the Convention can be enforced according to the relevant provision of the Arbitration Act (Articles 45 and 46) and other relevant Japanese laws). There is, however, no significant difference between the Convention and the aforementioned Articles
in terms of enforcement procedure.
11.2 Has your jurisdiction signed and/or ratified any
regional Conventions concerning the recognition andenforcement of arbitral awards?

No – although Japan has signed and ratified several bilateral treaties and other conventions, including the Comprehensive and Progressive Agreement for Trans-Pacific Partnership,
which refer to commercial arbitration, Japan is not a party to any
regional Conventions concerning the recognition and enforcement of arbitral awards.
11.3 What is the approach of the national courts in yourjurisdiction towards the recognition and enforcement ofarbitration awards in practice? What steps are parties
required to take?

The New York Convention has a direct effect in Japan by interpretation of Article 98 of the Constitution of Japan on international treaties. The parties can simply follow the procedural
requirements set forth in the Convention.
Under the Arbitration Act, irrespective of whether or not theplace of arbitration is in Japan, an arbitral award has the same
effect as a final and binding judgment. However, if a party seeks
the civil execution of the award, it must obtain an enforcement
order from the court pursuant to Article 46(1) of the Arbitration Act. The party seeking enforcement must file an application with the court for an enforcement order, together with aduly certified copy of the arbitral award and a Japanese translation of the award, if it is not in Japanese (Article 46(1) and (2)).

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Japan

The amended Arbitration Act (see our response to question 2.1)
alleviates this translation burden by giving the courts the discretion to waive this requirement in whole or in part.
11.4 What is the effect of an arbitration award in termsof res judicata in your jurisdiction? Does the fact thatcertain issues have been finally determined by an arbitral
tribunal preclude those issues from being re-heard in anational court and, if so, in what circumstances?

Arbitral awards, irrespective of whether or not the arbitration
has taken place in Japan, shall have the same effect as a final andconclusive judgment (Article 45(1)), and the arbitral award cantherefore be considered as res judicata.
11.5 What is the standard for refusing enforcement ofan arbitral award on the grounds of public policy?

Japanese courts may refuse to recognise or enforce an award if thecontent of the award is contrary to public policy (Article 45.2(ix)of the Arbitration Act). Japanese courts will examine whether
the enforcement of the award will be in conformity with thelaws of Japan, not only in terms of content, but also as a matterof procedural law.

122 Confidentiality
12.1 Are arbitral proceedings sited in your jurisdiction
confidential? In what circumstances, if any, areproceedings not protected by confidentiality? What, if
any, law governs confidentiality?

There is no requirement in the Arbitration Act that arbitralproceedings are to be kept confidential or that parties are subject
to any duty of confidentiality. This is up to the parties’ agreement (the parties generally agree that the proceedings shall remain
confidential, either by express agreement or by incorporation of
the institutional arbitration rules selected by them). The rules ofmost arbitration institutions in Japan, such as the JCAA, the Tokyo
Maritime Arbitration Commission (TOMAC) of the Japan Shipping Exchange (JSE), or the arbitration centres established by local
bar associations, include provisions dealing with confidentiality.
12.2 Can information disclosed in arbitral proceedings
be referred to and/or relied on in subsequent
proceedings?

The Arbitration Act does not expressly prohibit parties fromreferring to or relying upon information disclosed during arbitralproceedings. Accordingly, unless otherwise agreed by parties
or prohibited under institutional arbitration rules applicable toprevious arbitral proceedings, parties may refer to information insubsequent court or arbitral proceedings.

132 Remedies / Interests / Costs
13.1 Are there limits on the types of remedies (including
damages) that are available in arbitration (e.g., punitive
damages)?

No, there are no such limits. However, punitive damages would
not be enforceable by Japanese courts as being contrary to public

policy in Japan. Under the New York Convention (Article 5(2)(b)) and the Arbitration Act (Articles 45 and 46), courts may
refuse the enforcement of an award contrary to Japanese publicorder. Leave of enforcement of a foreign judgment ordering thepayment of punitive damages was denied on the ground thata judgment that contained an institution not compatible withthe fundamental principles of the Japanese legal system wascontrary to public order (Northcon I, Oregon Partnership v. Mansei
Kôg yô Co., Ltd. (Supreme Court, 11 July 1997)).
13.2 What, if any, interest is available, and how is therate of interest determined?

This would depend on the applicable substantive law, and be
subject to any agreement between the parties. Before the 2020reform of the Civil Code, where Japanese law was applicable tothe merits of the case, the statutory interest used to be 6% perannum in commercial matters, and 5% per annum in other civil
matters. The current rate, which is subject to triennial review,
was set at 3% per annum for civil and commercial matters from 1
April 2020 (Article 404 of the Civil Code).
13.3 Are parties entitled to recover fees and/or costs
and, if so, on what basis? What is the general practicewith regard to shifting fees and costs between theparties?

The Arbitration Act provides that costs incurred by the parties
with respect to arbitral proceedings are allocated in accordancewith the parties’ agreement, and that, absent an agreement, eachparty bears the costs it has incurred in relation to the arbitralproceedings (Article 49(1)). If it were so agreed between theparties, the arbitral tribunal may determine, in an arbitral award
or in a separate decision, the allocation of costs and the amount
one party must reimburse to the other, based on such allocation(Article 49(2)). A separate decision on costs has the same effectas an arbitral award (Article 49(3)).
13.4 Is an award subject to tax? If so, in whatcircumstances and on what basis?

Payments made by virtue of an arbitral award may be subject to
tax in Japan. The basis of such taxation may differ depending on
the nature of the payment and the underlying dispute, the taxable
subjects and tax regime.
13.5 Are there any restrictions on third parties,
including lawyers, funding claims under the law of yourjurisdiction? Are contingency fees legal under the law of
your jurisdiction? Are there any “professional” funders
active in the market, either for litigation or arbitration?

In general, funding by a third party is not specifically prohibited, although this is still considered to be a moot point. In terms
of professional conduct rules, attorneys are not allowed to lendmoney to clients unless there are special circumstances, such as
an emergency, which may justify a loan or advance. Professional
funders are not active in the market, neither for litigation nor for
arbitration. Contingency fee arrangements are allowed, althoughattorney fees must always be appropriate, and these arrangements
might be deemed inappropriate if the fees are excessively highcompared with the resulting benefit to the client.

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142 Investor-State Arbitrations
14.1 Has your jurisdiction signed and ratified the
Washington Convention on the Settlement of Investment
Disputes Between States and Nationals of Other States(1965) (otherwise known as “ICSID”)?

Yes – Japan signed the Washington Convention on 23 September,
1965, and ratified it on 17 August 1967.
14.2 How many Bilateral Investment Treaties (“BITs”)
or other multi-party investment treaties (such as theEnergy Charter Treaty) is your jurisdiction party to?

Japan had entered into around 40 BITs and 20 free trade agreements and economic partnerships, including investor-state dispute settlement procedures. Japan is a party to the Energy Charter Treaty.
14.3 Does your jurisdiction have any noteworthy
language that it uses in its investment treaties (forexample, in relation to “most favoured nation” orexhaustion of local remedies provisions)? If so, what is
the intended significance of that language?

Japan does not have noteworthy standard terms or model
language that it uses in its investment treaties. Japan’s international investment agreements generally provide for national
treatment and most-favoured-nation (MFN) treatment, except
for Association of Southeast Asian Nations (ASEAN) economic
partnership agreements (the MFN standard only applies tocompensation for loss or damage) and Singapore (duty to favourably consider a possible MFN treatment) and the Regional
Comprehensive Economic Partnership, under which the MFN
clause does not apply to certain countries.
14.4 What is the approach of the national courts inyour jurisdiction towards the defence of state immunity
regarding jurisdiction and execution?

Under the Act on the Civil Jurisdiction of Japan over Foreign
States (Act No. 24 of 24 April 2009), foreign states are immune
from the civil jurisdiction of the Japanese courts, except as otherwise stated. It provides that a foreign state is subject to the jurisdiction of the courts in civil suits if it has expressly consented tothe exercise of jurisdiction by a Japanese court, or has instituted
proceedings before the court regarding the matter. A foreignstate is also subject to Japanese court jurisdiction in civil suits
regarding commercial transactions, labour contracts, pecuniarycompensation for the death or injury of a person, or damage toor loss of tangible property, real estate rights, intellectual property, etc. Japan has jurisdiction over foreign states regarding theprocedure for temporary restraining orders and civil execution
against the property of a state, as detailed in the Act.

152 General
15.1 Are there noteworthy trends or current issues
affecting the use of arbitration in your jurisdiction (suchas pending or proposed legislation)? Are there any
trends regarding the types of dispute commonly beingreferred to arbitration?

The Arbitration Act is based on the 1985 UNCITRAL Model
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Law on International Commercial Arbitration. The 2023
amendments of the Act (not yet in force) seek to incorporatechanges made in the 2006 UNCITRAL Model Law and allow
Japan to better compete with popular arbitration destinations in
the region, such as Singapore and Hong Kong.
The key amendments include the following:■
Enforcing interim and provisional measures: Under thecurrent Act, there is no mechanism allowing Japanesecourts to enforce interim or provisional measures orderedby an arbitral tribunal. The amendments establish a mechanism allowing the courts to enforce such measures (seeour response to question 7.6).
■
Validity of the arbitration agreement: The current Act
requires arbitration agreements to be in writing and does
not deal with contracts concluded through other means,such as oral agreements. The “in writing” requirement isrelaxed (see our response to question 1.1).
■
The translation of documents into Japanese can often
increase costs and create delays when a party applies forthe recognition or enforcement of an arbitral award or forinterim or provisional measures. Under the amended Act,
the Japanese courts will have discretion to waive this translation requirement (see our response to question 11.3).
■
Changes to domestic courts’ jurisdiction: The Arbitration
Act currently recognises three types of district courts as
having jurisdiction in arbitration-related proceedings. The
amendments will allow the Tokyo and Osaka district courts
to exercise concurrent jurisdiction over arbitration-related
proceedings, including the examination of evidence andthe enforcement of arbitral awards. The rationale for thisreorganisation is the greater concentration of technicalexpertise in certain areas such as intellectual property andarbitration expertise in the Tokyo and Osaka courts.
15.2 What, if any, recent steps have institutions in yourjurisdiction taken to address current issues in arbitration(such as time and costs)?

In 2021, the JCAA revised provisions on expedited arbitration
procedures and administrative fees in its existing Commercial
Arbitration Rules and Interactive Arbitration Rules, in order tobuild up a more user-friendly arbitration system.
In January 2022, the Japan International Dispute Resolution
Center ( JIDRC) released a model agreement for online hearings.
The parties can agree to conduct evidentiary hearings using an
online video-conferencing platform.
15.3 What is the approach of the national courts inyour jurisdiction towards the conduct of remote or
virtual arbitration hearings as an effective substituteto in-person arbitration hearings? How (if at all) has
that approach evolved since the onset of the COVID-19
pandemic?

Due to the COVID-19 pandemic, almost all arbitral proceedings have become virtual. Statistics indicate that in 2022, 72%
of arbitration cases at the JCAA were conducted completely
online, while 14% were conducted partially online.

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Japan

Shinya Tago is a Japanese attorney-at-law, admitted to the New York State Bar Association, and is the Managing Partner of Iwata Godo. His
practice focuses on general corporate and commercial litigation, arbitration (domestic and international), conciliation and mediation, andincludes antitrust litigation for domestic and international industry players. Shinya Tago has an LL.B. from Hitotsubashi University and an
LL.M. from Cornell Law School.
Iwata Godo
Marunouchi Bldg., 15th Floor
2-4-1 Marunouchi, Chiyoda-ku
Tokyo 100-6315
Japan

Tel:
Email:
URL:+81 3 3214 6205
stago@iwatagodo.com
www.iwatagodo.com

Takuya Uenishi is a Japanese attorney-at-law (who has passed the New York State Bar Eexamination) and partner. He has vast experience
representing financial institutions (Japanese mega-banks, regional banks, trust banks, etc.) in litigations and cross-border transactions. He
also has extensive experience as a litigator, involved in corporate-related lawsuits, damages suits, competition law-related disputes, andlabour disputes. He was seconded to the legal department of a Japanese mega-bank from 2014 to 2016. Takuya Uenishi is a member of theInternational Arbitration Committee of the Dai-ichi Tokyo Bar Association.
Iwata Godo
Marunouchi Bldg., 15th Floor
2-4-1 Marunouchi, Chiyoda-ku
Tokyo 100-6315
Japan

Tel:
Email:
URL:+81 3 3214 6205
tuenishi@iwatagodo.com
www.iwatagodo.com

Landry Guesdon is a Registered Foreign Attorney (Tokyo Bar) and Avocat (Paris Bar) and a member of the International Practice Committeeof Iwata Godo. With more than 20 years’ service in a Magic Circle firm, Landry Guesdon has extensive experience in mergers & acquisitions,joint ventures and general corporate and commercial matters and antitrust spanning numerous industries. Landry Guesdon has a B.A. in Law
from the University of Kent in Canterbury and an LL.M. from the University of Paris.
Iwata Godo
Marunouchi Bldg., 15th Floor
2-4-1 Marunouchi, Chiyoda-ku
Tokyo 100-6315
Japan

Tel:
Email:
URL:+81 3 3214 6205
lguesdon@iwatagodo@com
www.iwatagodo.com

Iwata Godo is one of Japan’s premier and oldest law firms. It was established in 1902 as one of the first business law firms by Chuzo Iwata, an
attorney-at-law who subsequently held various positions, including serving
as Minister of Justice and president of the Japan Federation of Bar Associations.
It is a full-service firm with around 100 attorneys, and each of its practiceareas is highly regarded. The firm’s litigation and dispute resolution practiceis among the most prominent and accomplished in Japan, and the practicehandles a broad range of disputes in all sectors.
www.iwatagodo.com

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