Singapore Journal of Legal Studies[2002] 489 - 496

FOREIGN LAW IN JAPANESE COURTS –A COMPARISON WITH THE ENGLISH APPROACH:IDEALISM VERSUS PRAGMATISM
KOJI TAKAHASHI*The dichotomy of idealism versus pragmatism pervades the contrast between theJapanese and English approaches to conflict of laws but its manifestation is at its
starkest in the treatment of foreign law. When choice-of-law rules indicate theapplication of a foreign law, its treatment gives rise to various issues. While theJapanese approach is geared to the equal treatment of the domestic and foreign laws,
the English approach is very much informed by the need to promote speedy andefficient proceedings. Both idealism and pragmatism are positive attributes and thebest balance should be sought between the two for each issue involved.

I. INTRODUCTION
When faced with cases with international elements, the courts of eachcountry apply their own choice-of-law rules. Those rules differ in details
from country to country but they share the same objective, ie to identify thelaw of the country most closely connected with the dispute and the parties.
Where the law identified is a foreign law, its treatment involves a variety ofissues. This article will consider four of them: when the identified foreign
law is actually to be applied; who bears the responsibility to ascertain thecontent of the applicable foreign law; what evidence is admissible forproving the content of the applicable foreign law; and how to deal with
failure to ascertain the content of the applicable foreign law. Those issues
are apt to illustrate the contrasting approaches taken in Japan and England:
the idealistic or even dogmatic approach in Japan and the generally
pragmatic English approach.1 The same contrast can be observed generally——————————————————————————————–*

LLB (Kyoto), LLM (Kyoto and LSE), PhD (LSE). Lecturer, School of Law, University ofBirmingham (England). This article is based on a paper presented at the Japanese Law
Colloquium, “Into the Grove of Japanese Law: Perspectives and Paradigms” (Sydney, 22
and 23 July 2002). The colloquium was held in celebration of the new millennium
appointments in Japanese law at the three hosting Australian universities (Australian
National University, University of Sydney, and University of New South Wales). I would
like to record my gratitude to Professors Trevor Hartley, Adrian Briggs, Akira Saito,
Shunichiro Nakano and Yoshihisa Hayakawa for their comments on my thought. Needlessto say, none of them are responsible for what I have written.

490

Singapore Journal of Legal Studies[2002]

in the way conflict-of-laws issues are handled in the two countries but its
manifestation is at its starkest in the treatment of foreign law.2
II. APPLICABILITY OF FOREIGN LAW
Where the choice-of-law rules indicate the application of a foreign law, thequestion arises whether a court should apply the foreign law of its own
motion or whether it should do so only at the request of either or both of theparties.
A. England
In England, as a general rule, the foreign law is applied only where either orboth of the parties plead its application. Otherwise, English law is applied.
This approach reflects the pragmatism of English courts, in particular their
willingness to promote efficient and speedy proceedings. Since ascertaining
the content of a foreign law is expensive and time-consuming, the English
lawyers would ask why the courts should embark upon such a difficult
process if both parties are content to have their case decided by English law.
B. Japan
In Japan, the predominant academic view is that the courts should apply of
their own motion the foreign law as specified by the choice-of-law rules.
This view is founded largely upon the idealism of conflict of laws, which
since the time of Friedrich Carl von Savigny is to treat domestic and foreignlaws equally.
The case law suggests that this view has had strong influence uponpractice3 but it is not always followed.4 Moreover, according to some
practitioners’ observations, the Japanese courts often assume that the

1

2

3
4

Other issues arising from the treatment of foreign law include who selects the expert
witnesses, what are the roles and status of expert witnesses, how expert’s evidence isassessed, what approach is taken to interpret evidence on the content of the foreign law andwhether appeals on points of foreign law are permissible. The consideration of those issues
is beyond the scope of this article as they are not as suitable to illustrate the dichotomy ofidealism versus pragmatism.
The theme of idealism versus pragmatism is inspired from the colloquium theme “Into theGrove of Japanese Law: Perspectives and Paradigms”, which was explained as follows:“The theme of the colloquium borrows from Akutagawa Ryunosuke’s famous novel, Yabuno Naka [Into the Grove] (later popularised in the movie Rashomon). The book details how
a particular event was interpreted differently through the eyes of the various characters.
This diversity of perspectives is certainly true in the field of Japanese law, and accordingly
the colloquium organisers invite scholars to share their own interpretations on the natureand functioning of Japanese law.”
Eg The Osaka High Court 6 April 1962.
Eg The Osaka District Court 12 April 1960.

Sing JLS

Foreign Law in Japanese Courts

491

foreign law is the same as Japanese law in the outcome of its application,
especially on commercial law issues.5
III. WHO HAS THE RESPONSIBILITY TO ASCERTAIN THE CONTENT
OF THE APPLICABLE FOREIGN LAW
The question here is, where a foreign law is to be applied, whether the court
is entrusted to ascertain its content or whether the parties (or a party) havethe responsibility to prove it.
A. Japan
The Code of Civil Procedure used to provide6 that the content of theapplicable foreign law, along with the local customary law and commercial
customary law, must be proved by the parties, although the courts were also
allowed to conduct research themselves. This provision was deleted on the
ground that the rule was self-evident and unnecessary.7
Despite this history, it has since become the leading academic view thatthe maxim jura novit curia (the court knows the law) applies also to foreign
laws. While this maxim is certainly true with the domestic law, when it was
extended to foreign laws, the idealism of conflict of laws has gone too far,to the point of dogmatism. Under this doctrine, the courts are expected toascertain the content of the foreign law by conducting research themselves
even if the parties provide no evidence.
In practice, the Japanese courts generally try to live up to thisexpectation but since the time and resources available to them are limited,
they must also be pragmatic. Thus the courts take no more responsibility
than to make their best effort under the constraint of time and resources.
They also usually request the parties to provide assistance. The parties
usually oblige8 since it is in their own interests to have their interpretationof the foreign law accepted. In a few extreme cases, the courts dismissed theclaim on the ground that the claimants failed to prove that the applicableforeign law recognised the basis of their claim.9——————————————————————————————–
5

6
7

8

9

See eg Fujita, Nichibei Kokusai Sosho no Jitsumu to Ronten (Transnational Litigation:
US/Japan – Points and Authorities) (Japan: Nihon Hyoronsha, 1998) at 309.
Art 219 (prior to the amendments in 1926).
Minji Sosho ho kaisei iinkai giji sokkiroku (Transcript of the committee meetings on therevision of the Code of Civil Procedure) at 524; Katou, Kaisei Minji Sosho ho an gaisetsu(The outline of the draft of the revised Code of Civil Procedure) at 87 (1937).
International Trade Law Group of the Tokyo Bar Association, Kokusai Sosho no Q&A(Q&A on International Litigation) (1996) at 43.
Eg The Fukuoka District Court 22 January 1962; The Osaka High Court 6 April 1962.

492

Singapore Journal of Legal Studies[2002]

B. England
In England, as a general rule, the party who pleads a foreign law is
responsible to prove its content. While it may be too simplistic to see this asa straight manifestation of pragmatism, there is at least no dogmaticsuggestion that the maxim jura novit curia (the court knows the law) should
be applied to foreign laws.
III. ADMISSIBLE E VIDENCE FOR PROVING THE CONTENT
OF THE APPLICABLE FOREIGN LAW
A. EnglandHere, it is the English courts which are saddled with dogmatism. In
England, as a general rule, the content of the applicable foreign law isproved through the use of expert witnesses. The court is only entitled toconsult the sources of law which have been referred to by the expert
witnesses.10 If the expert refers to particular parts of a foreign law report,
statute, or commentary, the court may not have regard to other parts.11 Its
rationale is said to be that the extraneous material may be outdated or
inaccurate.12 However, whether such a categorical exclusion is wise isquestionable since it would also exclude a lot of useful evidence. The
common law systems generally have stricter rules on admissibility ofevidence than civil law systems because of the history of jury trial. As thequestion of foreign law was originally decided by the jury,13 it is probablethat the strict restriction on the admissible evidence to prove foreign law isalso based on the system of jury trial. But the question of foreign law is now
a matter for the judge14 and jury trials have become rare in civil cases.15 It is
worth noting that in a recent case,16 the Court of Appeal said it hoped to bepermitted to take judicial notice of decisions of foreign courts and academic
writings.
B. Japan
In Japan, the courts are pragmatic on this issue. They can look at sources aswide ranging as possible and assess their reliability individually on a caseby case basis. Thus they may consult textbooks, case reports, legislation,——————————————————————————————–
10
11
12
13

14
15
16

Bumper Development v Commissioner of Police of Metropolis [1991] WLR 1362 at 1371.
Nelson v Bridport (1845) 8 Beav 527 at 542.
Fentiman, Foreign Law in English Courts (Oxford: Oxford Publishing, 1998) at 189.
Hartley, “Pleading and Proof of Foreign Law: The Major European Systems Compared”(1996) 45 ICLQ 271 at 284.
Section 69(5) of the Supreme Court Act 1981.
See s 69(1) of the Supreme Court Act 1981.
Morgan Grenfell & Co Ltd v SACE [2001] EWCA Civ 1932 at para 53.

Sing JLS

Foreign Law in Japanese Courts

493

and expert witnesses, and submit inquiries to various institutions such asuniversities and the embassy of the given foreign country.17
IV. FAILURE TO ASCERTAIN THE CONTENT OF
THE APPLICABLE FOREIGN LAW
Under the constraint of time and resources, the content of the applicableforeign law may not be ascertained. Then, the question arises as to how thecase should be dealt with.
A. England
In England, if the judge is not persuaded that the foreign law is different
from English law, English law is applied.18 This solution may be seen as
pragmatic since, needless to say, the English courts are best at interpreting
their own domestic law.
B. Japan
In Japan, to easily give up applying the foreign law and apply the domestic
law is considered to be contrary to the idealism of conflict of laws, namely
to treat the domestic and foreign laws equally. A variety of solutions has
been suggested by the academics, including the application of what the
court considers to be the reasonable rules, the application of what isbelieved to be the most similar legal system to the applicable foreign law,and the application of the law of another country which is also closely
connected to the dispute. Most of those approaches have been adopted by
the courts in different cases.
C. The Real Difference
The comparison just made on this issue between the English and Japanesesolutions follows the conventional treatment of this issue. It is, however,misleading. This is because while the Japanese courts often declare that thecontent of the applicable foreign law could not be ascertained,19 the English
courts rarely say so. The Japanese courts, after making such a declaration,——————————————————————————————–
17
18

19

See eg Tokyo Family Court 13 June 1963; Kouhu District Court 29 October 1976.
Macmillan Inc v Bishopsgate Investment Trust plc and Others (No 4) [1999] CLC 417 atpara 10.
Supra, n 12 at 186-188.

494

Singapore Journal of Legal Studies[2002]

often proceed to infer the content of the foreign law20 in various ways notdissimilar to the ways in which the English courts would do so without
making such a pronouncement.21
It is possible to suggest a number of reasons why the Japanese courts are
more likely than the English courts to say that the content of the applicableforeign law could not be ascertained.
Firstly, Japanese courts often find themselves having to apply foreignlaws without any evidence on their content because they are supposed toapply the foreign law of its own motion even if neither party seeks to provethe content of the foreign law. The English courts, on the other hand, do not
apply a foreign law unless either or both of the parties plead its application.
The parties will not plead foreign law unless they are able to provide thecourt with some evidence on the content of the foreign law. Even if theevidence is not sufficient in itself, the experts usually submit its
interpretation, so that the courts are left only with the task of evaluating theinterpretations of the experts.
Secondly, most Japanese cases concerning failure to ascertain thecontent of the applicable foreign law involved the application of North
Korean law, which is an obscure legal system.22 By comparison, the courtsof England, being in Europe, are less likely to have to deal with obscurelegal systems.
Thirdly, while the amount of information on foreign law available to
Japanese courts is restricted by the scarcity of the Japanese translation offoreign law materials, English courts have the benefit of a wide availabilityof experts in foreign laws who can speak English and are willing to testify
before the courts.
Fourthly, the English and Japanese courts have different perceptions oflaw because of their common law and civil law heritage. When the Japaneselawyers think of law, they would picture in their mind statutory provisions
with commentaries. While the commentaries may show different
interpretations of the same provisions, they would often indicate the leading
opinion. When the English lawyers think of law, many of them would think——————————————————————————————–
20

21

22

See eg Chiba Matsudo Shihan 11 August 1965; Tokyo Family Court 28 March 1974;
Sapporo Family Court 23 July 1974; Tokyo Family Court 27 December 1974; Nagoya
Family Court 30 November 1983. Criticism for this approach, see Kanda “Jyunkyo
Gaikoku ho no humei wo megutte” (On the failure to ascertain the content of theapplicable foreign law) 107 (1990) Hogaku Kyokai Zasshi 999 at 1035, 1039.
See eg Macmillan Inc v Bishopsgate Investment Trust plc and Others (No 4) [1999] CLC
417 at para 22.
Eg Nagoya District Court 29 May 1954 (North Korean law on divorce); Tokyo District
Court 28 September 1954 (North Korean law on divorce); Tokyo Family Court 13 June
1963 (North Korean law on adoption); Shizuoka District Court 12 February 1971 (North
Korean Law on divorce, division of property upon divorce and the designation of theholder of the parental rights upon divorce); Kouhu District Court 29 October 1976 (North
Korean law on divorce and the designation of the holder of the parental rights); Nagano
Family Court 12 March 1982 (North Korean law on succession).

Sing JLS

Foreign Law in Japanese Courts

495

of court decisions. The English judgments, because of their length and the
involvement of opinions of more than one judge, are susceptible to different
interpretations, each of which may be supported by different cases. The
English lawyers would, therefore, naturally be less optimistic than theJapanese counterparts about ascertaining the definitive interpretation of law.
They may, therefore, feel it is less necessary to pronounce that the content
of the foreign law could not be ascertained before proceeding to infer what
the foreign law is.
Fifthly, since the common law develops empirically with each casefilling the gap left by the precedents, the English courts may not see a gap
in the information available on the foreign law with much alarm. On theother hand, the Japanese courts would see such a gap with great concern
since the civil law systems assume that a statute covers the whole area oflaw within its scope of application and most of the gaps are supposed to be
filled by mutatis mutandis applications.
Another reason (which is not actually the main reason but is most
relevant to the theme of this article) is this. In certain types of cases, theEnglish courts have discretion to decline to hear cases under the principle
known as forum non conveniens. If the applicable foreign law is likely to bevery different from English law, the English courts will take that into
account and exercise the discretion, especially in the cases involving
complex legal issues.23 It is based on the pragmatic consideration that aforeign law is best applied by the courts of that foreign country. The
Japanese courts also have discretion to decline international jurisdiction bytaking into account exceptional circumstances24 and there seems to be nogood reason why they could not do so by taking into account the fact thatthe applicable law is an obscure foreign law.25 But in fact there appears to
be no case in which the courts have actually done so, at least expressly. Thisis presumably because in Japan there is an entrenched dogmatic notion thatthe choice of law is a separate process from the determination ofinternational jurisdiction and the former should not influence the latter.
V. RECAPITULATIONThe Japanese approach is heavily influenced by academic debate, although
the courts seem often unable or unwilling to follow academic guidance. The
English approach, on the other hand, is based on the courts’ own experiencedeveloped from numerous international cases. As a consequence, theEnglish approach may be characterised by procedural pragmatism, in——————————————————————————————–
23

24
25

Dicey and Morris, Conflict of Laws (London: Sweet & Maxwell, 2001) at para 12-024 andthe cases cited therein, eg Spiliada Maritime Corp v Cansulex Ltd (The Spiliada) [1987]
AC 478.
Eg The Supreme Court, 11 November 1997.
Kanda “Jyunkyo Gaikoku ho no humei wo megutte” (On the failure to ascertain the content
of the applicable foreign law) 107 (1990) Hogaku Kyokai Zasshi 999 at 1030, 1036.

496

Singapore Journal of Legal Studies[2002]

particular willingness to promote speedy and efficient proceedings. The
Japanese approach, on the other hand, may be characterised by the idealismof conflict of laws, ie to treat the domestic and foreign laws equally. The
idealism has gone too far, to the point of dogmatism when the maxim jura
novit curia (the court knows the law) is extended to foreign laws. Under theconstraint of time and resources, the Japanese courts have to somehow
reconcile the dogmatism with pragmatism. One caveat to add is that the
English courts do not have the monopoly of pragmatism as we have seen in
the context of admissible evidence. While dogmatism is a negative attribute,
both idealism and pragmatism are positive attributes and the best balance
for each issue involved should be sought between the two.