146

M 13 -1-4(2011)

Japan'sNewly EnactedRuleson InternationalJurisdiction:with a Reflectionon SomeIssuesof Interpretation
147[KojiTAKAHASHI]

Jap an's Newly Enacted Rules on International Jurisdiction:
wit ha Reflection on Some Issues of Interpretation
Koji TAKAHASHI*
Professor,

Doshisha

University

annotations of the key provisions from the Act. It will examine some of the issues of interpretation which may arise under Article 3-9, the backbone provision of the Act, and finallyprovide an overall evaluation of the new Rules.
2. Translation(2)and annotationsof the key provisions

Law Schoola. The p rovisions

to be incorp orated

into the Code of Civil Procedure

Table of Contents
1. Introduction
2. Translation

and annotationsof the key provisions

a. The provisions to be incorporated

into the Code of Civil Procedureb. The provision to be incorporated

into the Civil Interim Relief Act

3. Some issues of interpretation

under Article 3-9

a. What factors are eligible to be taken into account?
b. Application to international

parallel litigationc. The legal ground for dismissing proceedings
4. Overall evaluation of the new Rules

Translation (Once the Act comes into effect,
the following provisions will be incorporated
into the Code of Civil Procedure.)
Article 3-2 (Jurisdiction Based on, inter alia,
the Domicile of the Defendant)(1) The courts shall have jurisdiction over an action against a naturalperson:—when he/she is domiciledin Japan;— if he/she has no domicileor if his/her domicileis unknown,when he/she is resident inJapan; or— if he/she has no residenceor if his/her resi
dence is unknown,when he/she has everbeen
domiciled in Japan prior to filing the action

1. Introduction

On 28 April 2011, the Japanese National Diet (Parliament) passed a government-spon(except where he/she was domiciled abroad
after he/she waslast domiciledin Japan).

sored bill for enacting the bases of international jurisdiction of the Japanese courts. The
new Act ("Act for the Partial Amendment of the Code of Civil Procedure and the Civil
Interim' ReliefAct" —hereinafter referred to as "the Act") is scheduled to enter into force
courts in civil and commercial matters,(1) which will be incorporated into the existing
Code of Civil Procedure and Civil Interim Relief Act. The rules of international jurisdic
tion, which have hitherto been inferred from judicial precedents, will for the first time beprescribed by legislation.This article sets forth the present author's English translation andearlier work,Japan'sNewAct on InternationalJurisdiction(ebook ISBN: 9781466057562)(May2011).

• The expression"the courts"as used throughout this Act refers to the courts of Japan as awhole unlessthe context indicatesotherwise.
• The word "domicile"as used throughout thisAct is a conceptwhich has a meaninglesstech
nical than the same term used for the conflictof-lawsrules of the common law tradition. It isa translation of the Japanese word "jyasho,"which is defined by Article 22 of the Civil
Code as the principalplaceof living.
• The word "residence (kyosho)"denotes theplace of living over a period of time which hasless permanence than domicile. There is norule fixing the minimum length of the period,
but mere presence,such as a holidaystay,is not
sufficientto establishresidence.
• The phrases"if he/she has no domicile or if
his/her domicile is unknown" and "if he/she
has no residence or if his/her residence is un
known" must be read with the addition of thewords "anywherein the world."If, for example,
the defendant has no domicile in Japan but isdomiciled in country X, the Japanesecourts do
not have jurisdiction under this provision even
if the defendant is residentin Japan.

on 1 April 2012. It contains provisions on the international jurisdiction of the Japanese* Professor,DoshishaUniversityLaw School.Chapters2 and 4 are largelybasedon the author's

Annotation(2) Notwithstanding the provisionof the preced
ing paragraph, the courts shall have jurisdiction
overan action against an ambassador,minister, or

Thoughnot expressly stated, it would makesense to understand this provision as providing
jurisdiction

only with respect to the types of148

Illn-flA**

V-;13 16-'(2011)

any other Japanese national in a foreign country
who enjoys immunity from the jurisdiction ofthat country.
(3) The courts shall havejurisdiction over an action againsta legalperson or any other associationor foundation:—when its principaloffice is located in Japan;or—if it has no office or if the location of its office is unknown,

when its representative or

any other principal

person in charge of its

business is domiciled in Japan.

[Koji TAKAHASHI]
actions for which the diplomatic personnel enjoys immunity in the foreign country.

• The expression "any other association or
foundation" refers to an entity without legal
personality.
• The word "office(jimushomatawaeigyasho)"gation as specifiedin the contract is locatedin
Japan or when the place of performance ofthe obligationis locatedin Japan accordingto
the governinglaw chosen in the contract.
(ii) An action seeking payment of a bill of
exchange,promissorynote or check:—when the placeof payment of the bill, noteor check is locatedin Japan.

(iii) An action relatingto a propertyright:— when the object of the claim is located inJapan; or— if the action is for the payment of money,
when the defendant's asset capable of being
seized is located in Japan (except where thevalueof the asset is extremelylow).

coversboth an office engagedin profit-making
activitiesand an office engaged in non-profit
making activities.
• The word "business"as used throughout thistranslation coversboth profit-making activities
and non-profit-makingactivities.
• The expression"if it has no office or if thelocation of its office is unknown"must be readwith the addition of the words "anywhere in
the world."

Article 3-3 (Jurisdiction over Actions Relating
to, inter alia, Contractual Obligations)
The actions set out in each sub-paragraphbelow
may be filed with the courts of Japan in the cir
cumstancesdescribedin each of them.
(i) An action for the enforcementof a contractual
obligation, an action arising from negotiorumgestio (management of another's affairs without
mandate) performed in connection with a con
tractual obligation, an action relating to unjust
enrichment arisingin connectionwith a contractual obligation, an action seekingdamagesfor thebreach of a contractual obligation, or any otheraction relating to a contractualobligation:—when the placeof performanceof the obli

Japan's Newly Enacted Rules on International Jurisdiction:with a Reflection on Some Issues of Interpretation

The "governing

law chosen

notes the governing
sen in the contract.

in the contract"

law of the contractdeas cho149• The "propertyright (zaisanken) is a broadconceptcoveringrights of monetaryvalue gen
erally,whether they are real rights or personal
rights.
• The "objectof the claim"and the "assetcapa
ble of being seized"coverboth tangibleand intangible assets. Amongst intangible assets, adebt is deemedto be located where the debtor
is domiciledunder Article 144(2) of the Civil
ExecutionAct. Intellectual property rights are
considered to be located where they are regis
tered or otherwisehave been created.
• The condition mentionedin the parentheses
concerns the absolute value of the asset as op
posed to the value relative to amount of theclaim.

(iv) An action which is against a person having
an office and relatesto the activitiescarried out inthat office—when the office is located in Japan.

• The word "office(jimushomatawaeigydsho)"coversboth an officeengaged in profit-making
activitiesand an office engaged in non-profit
makingactivities.
• The "person"can be either a natural person
or an entity (association or foundation)
whetherincorporatedor unincorporated.

(v) An action against a person engaged in busi
ness in Japan (including a foreign company (asdefined by Article 2 (2) of the Companies Act• The word "business"coversboth profit-mak(Act No. 86 of 2005) ) which continuously carries out transactionsin Japan):— when the action relatesto the business in

the relevantpart:In this Act, the words listed in each para

Japan.

ing activitiesand non-profit-makingactivities.
• Article 2 of the Companies Act provides ingraph below shall have the meaning as defined in each of them.
1. A company means a kabushiki-gaisha(stock company), gomei-gaisha(incorporat
ed general partnership), goshi-gaisha(incor
porated limited partnership) , or gode-gaisha(limited liabilitycompany).
2. A foreign company means a legal person
or any other entity established under a foreign law which is of the same type as, orsimilarto, a company.
• This provision is a novel to the Act in that

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013V(2011)[Koii TAKAHASHI]
no equivalentrule can be foundin the existinglaw. It allows an action to be filed in Japan evenif, unlike

the preceding

sub-paragraph,the defendant has no office of its own in Japan but
conducts

businesssuch as agencies

throughthird-parryand subsidiaries.

entities

It also allows

an action to be filed in Japan if the defendant isengaged in business in Japan from a foreigncountry

by means of internet

communication.

or other modes of

It was considerednecessary

toextend jurisdiction to cover such situations because nowadays

businesscan be conducted

ily by advancedmeans

of communications

without

physicalpresence.

• Thereare cases where it is not certain wheth

er the defendantis deemedeas

to be "engaged

inbusiness in Japan," such as where a defendant
who base no fixed place of business in Japan
accepts a number of unsolicited orders from Ja
pan through its non-Japanese language website.
Any excess of jurisdiction is likely to be allevi
ated by dismissalof proceedings

under Article

3-9.
• On a literal reading , this sub-paragraphfully

coversthe preceding sub-paragraph(iv) , mak
ing the latter redundant.

and how the

courts will distinguishthe two sub-paragraphsfrom each other remains

to be seen.

(vi) An action based on a maritime-lien claim

Theand any other claim secured by a ship:arises in connection— when the ship is located in Japan .

Whether"maritime-lienclaim"

is a claim

whichwith a ship and for whicha statutory lien is created on the ship (Article
842 of the Japanese Commercial Code) . This
provision

more generally

coversclaims which

are secured by a ship (including a claim se
cured by a mortgageovera ship) .
(vii) An Action relating to a company or any
otherassociationor foundation

the types specified

which

is one ofbelow:• The "association"eitherincorporated

or unincorporated

be either profit-makinga) an action by a companyor other associa• The "company"tion against
an actionand "foundation"

can beand canor non profit-making.

is a profit -making

associa

its present

or former member,non which is incorporated.

by a member

against a present or• The word "office(jimushomatawaeigyosho)"Japan's Newly Enacted Rules on International Jurisdiction:with a Reflection on Some Issues of Interpretation

former member, or an action by a former
member against a present member, each ofwhich is based on his/her status as a mem
ber;b) an action by an associationor foundation against its present or former officer
based on his/her statusas an officer;c) an action by a company against its present or former incorporator or inspector,
based on his/her status as an incorporator
or inspector;d) an action by a creditor of a company orother associationagainst its present or former member, based on his/her status as amember;— if the association or foundation is a legal

covers both an office engaged
activities
makingand an office engaged

151

in profit-making
in non-profit

activities.

person, when it was incorporated under Japa
neselaw;and— if it is not a legal person, when its principal
officeis located in Japan.
(viii) An action relating to a tort:— when the tort occurred in Japan (except

In cases where the place of a harmful act andwhere the result of a harmful act committed
abroad has occurred in Japan and the occur
rence of that resultin Japan would have beennormallyunforeseeable).

ficient if either the act or the result took place(ix) An action seeking damages arising from acollisionof ships or any other accident at sea:
— when the first place at which the damaged

Where a collisiontakes placeon the territorial
watersof Japan, the Japanesecourts havejuris
diction under sub-paragraph (viii).

the place of the result of the act differ, it is suf
in Japan except for the case mentioned in theparentheses.

ship arrived is locatedin Japan.
(x) An action relating to salvage:— when the salvagewas performed in Japanor where the first place at which the salvaged
ship arrived is locatedin Japan.
(xi) An action relating to immovable property:— when the immovable is located in Japan.

An action relatingto the ownershipof immov
able property falls under this sub-paragraph.
The jurisdiction is not exclusive.It should be
noted, however,that jurisdictionover an action
relating to the registrationof immovableis ex
clusiveunderArticle 3-5 (2) (Seebelow).

1

152

EIRMa**

0 13(2011)[KojiTAKAHASHI]• A hereditary reserve is a share of the de(xii) An action relatingto an inheritance right ora hereditary reserveor an action relating to a tes
tamentarygift or any other act taking effectupon
death:— when the deceasedwas domiciled in Japanceased's estate which is reserved for certain
membersof the successorsregardlessof the deceased'swill.
• This provisionmirrorsthat of Article3-2 ( 1)at the time of the commencement of succession;—if the deceasedhad no domicileor if his/her

except that it substitutes the deceased for the
defendant and the commencement of succes
sion for the filing of an action.

domicile is unknown, when he/she was resi
dent in Japan at the time of the commence
ment of succession;or— if the deceasedhad no residenceor if his/(2) An action brought by an individualemployee
against his/her employer with respect to a civil
dispute between them over the existenceof theiremployment contract and other matters of em
ployment relations (hereafter "civil dispute overindividual employment relations") may be filedwith the courts of Japan if the place of supply oflabor under the employment contract (or, if nosuch placeis specified,the office which hired theemployee)is locatedin Japan.

Article 3-5 (Exclusivityof Jurisdiction)(1) Actionsprovided in Chapter II (except those(xiii) An action relating to an inherited obliga
tion or any other burden on the inherited proper
ty which does not fall under the preceding sub
paragraph:— in the circumstancesdescribed in the precedingsub-paragraph.

(1) An action brought by a consumer (viz. a natural person (except where he/she becomesparty
to a contract in the exerciseof, or for the purposeof, businessactivities)) against a businessopera
tor (viz. a natural person who becomesparty to acontract in the exerciseof, or for the purpose of,businessactivities,or a legal person, or any otherassociationor foundation) with respectto a con
tract (excludingan employment contract) con
cluded between them (hereafter a "consumer
contract") maybe filed with the courts of Japan if
the domicileof the consumerat the time of filingthe action or at the time of the conclusionof thecontractis locatedin Japan.

153(3) The preceding article shall have no application to an action brought by a businessoperator
against a consumer with respect to a consumer
contract or to an action brought by an employer
against its employeewith respectto a civildisputeoverindividualemploymentrelations.

her residence is unknown, when he/she had
ever been domiciled in Japan prior to thecommencement of succession (except where
he/she was domiciledabroad after he/she waslast domiciledin Japan) .

Article 3-4 (Jurisdiction over Actions Relating
to Consumer Contracts and Employment
Relations)Japan's Newly Enacted Rules on International Jurisdiction:with a Reflection on Some Issues of Interpretation• In the pre-existinglaw, there are no special
rules for consumer contracts or for employ
ment relations.The provisionsof this articleare
thereforea novel.
• The rationalefor this provisionis the protec
tion of consumers and employees as weaker
parties.
• The word "business"coversboth profit-mak
ing activitiesand non-profit-makingactivities.
• The words "precedingarticle" in Paragraph(3) referto Article3-3.
• The jurisdiction under Paragraphs (1) and(2) are availableconcurrently with the otherheads of jurisdictionsuch as those laid down in
Article3-3.

provided in Sections4 and 6) of Part VII of theCompaniesAct, actions provided in Section2 ofChapter VI of the Act on General Incorporated
Associationsand General Incorporated Founda
tions (Act No. 48 of 2006) and analogous ac
tions relating to associationsor foundationsincor
porated under other Japanese legislationshall be
subject to the exclusivejurisdiction of the Japa
nese

courts.

• Actionsprovidedin Chapter II (except those
provided in Sections4 and 6) of Part VII of
the CompaniesAct are actions concerning theorganizationof a company (Section 1) , actions
for pursuing the liabilityof officers of a stockcompany (viz. kabushiki-gaisha)(Section 2),
actions seekingdismissalof officers of a stockcompany (viz. kabushiki-gaisha)(Section 3) ,actions seeking the removal of members of amembership company (viz. gomei-gaisha(incorporated generalpartnership) or goshi-gaisha(incorporated limited partnership) or g'dc1O
gaisha (limited liability company)) (Section5) , and actions seeking the rescission of redemption of bondsby a bond-issuingcompany.
• The general incorporated associations andgeneral incorporatedfoundationsare non-prof
it-making associationsand foundations.
• Actions providedin Section2 of Chapter VIof the Act on General Incorporated Associations and General Incorporated Foundations
are actions concerning the organization (Subsection 1) , actions for pursuing the liabilityof
officers (Subsection 2), and actions seeking
dismissalof officers (Subsection3) .

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11113,t---f/A**[Ko TAKAHASHI]

13 -V (2011)

Japan's Newly Enacted Rules on International Jurisdiction:with a Reflection on Some Issues of Interpretation

155• A joint and severalobligationis an example(2) An action with respectto registrationshallbe
subject to the exclusivejurisdiction of the Japa
nese courts if the placeof registrationis located inof "obligationswhich ... are common to all of[the parties]" (Article 38) and an obligationof joint tortfeasorsis an exampleof "obligations
which ... are based on the same legal and fac
tual grounds"(Article38) .

Japan.
(3) An action with respect to the existenceand
effect of an intellectual property right (viz. theright as defined by Article 2 (2) of the BasicActof IntellectualProperty (Act No. 122 of 2002) )which comes into existence by registration shallbe subject to the exclusivejurisdictionof theJapa
nese courts if the registrationwas effected in Ja
pan.

• Article 2(2) of the BasicAct of Intellectual
Property provides:
The term "intellectual property right" as
used in this Act shall mean a patent right, autility modelright, a breeder'sright, a design
right, a copyright, a trademark right, anyother statutory right in intellectualproperty,
and a right to legallyprotected interest in intellectualproperty.
• Intellectualproperty rights which come into
existenceby registrationinclude patent rights,
trademarkrightsand breeder'srights.
• This paragraphdoes not coveran action fordamages for infringement of an intellectual
property.The other heads of jurisdiction, suchas the jurisdictionbased on the defendant'sdo
micile (Article 3-2 (1) ) and the jurisdiction
for an action relating to a tort (Article 3-3(viii)) , areavailablefor such an action.

Article 3-6 (Jurisdiction overJoint Claims)
Where two or more claims are made jointly in asingle action and the courts of Japan have juris
diction over one of them only, the action may be
filedwith the courts of Japan only if that particu
lar claim over which the jurisdiction existshas acloseconnection with the other claims.However,with respect to an action brought by, or against,
two or more persons, the foregoingapplies onlyin the casesdescribedin the firstsentence of Article 38.

• The first sentence coversboth an action involving multiple claims by a single plaintiff
against a singledefendant and a multi-partyac
tion. Only the latter is treated by the second
sentence.
• Article38 sets out conditions of a multi-party action as follows:
Two or more persons may sue or be sued as
joint parties where the rights or obligations
which constitute the subject matter of theaction are common to all of them or are
based on the same legal and factualgrounds.
The same shall applywhere the rights or obligations which constitute the subject matterof the action are of the same type and are
based on the same type of legal and factual
grounds.

Article 3-7 (Jurisdiction Agreement)(1) The parties may decide by agreement thecountry in which they mayfile an action.
(2) The agreement provided in the preceding
paragraphshall have no effect unlessit is in writing and is concernedwith an action arisingfrom
specificlegal relationships.
(3) For the purpose of the precedingparagraph,an agreementis deemed to be in writingif it is recordedin an electromagneticrecord (viz. a record
made in an electronicform, a magnetic form, or
any other form unrecognizableto human percep
tion, which is used for informationprocessingby
computers).
(4) An agreement to file an action exclusively
with the courts of a particular foreign country
may not be invoked if those courts are legallyor
factuallyunable to exercisejurisdiction.
(5) The agreement provided in Paragraph (1)having as its object a future dispute arising inconnection with a consumer contract shall haveeffectonly in the circumstancesset forth below:(i) where it is an agreementwhich allowsan action to be filed in the country where the consum
er was domiciled at the time of the conclusionof
the contract (If the agreementpurports to allow
an action to be filed exclusivelyin that country, it
shall be without prejudice to the right to file inother countriesexceptin the casesprovided in thefollowingsubparagraph.) ; or(ii) where the consumer filed an action in the
country specifiedby the agreement or where theconsumer invoked the agreement in response toan action brought by the businessoperator in Ja
pan or in a foreigncountry.

The rules of jurisdiction incorporated by the
Act are generallyapplicableto the casesand petitions filed on or after the date of enteringinto
force of the Act. By way of exception,Article
3-7 has no applicationto jurisdiction by agree
ment concludedprior to entering into force of
the Act (Article2 of the SupplementaryProvi
sions of the Act).

156

ElIVla**P; 13(2011)[KojiTAKAHASHI](6) The agreement provided in Paragraph (1)havingas its object a civildispute over individual
employmentrelationsshall haveeffect only in thecircumstancesset forth below:

Japan's Newly Enacted Rules on International Jurisdiction:with a Reflection
on Some Issues of Interpretation
with
Refit

Case of ExclusiveJurisdiction)
The provisionscontainedin Article 3-2 to Article
3-4 and thosecontained in Article3-6 to the preceding Article shall have no application where,with respect to the action in question, the exclu
sive jurisdiction of the Japanese courts is prescribedby legislation.

(i) where it is an agreementwhich was concluded
when the employment contract was terminatedand stipulates that an action may be brought inthe country in which the labor was beingsuppliedat the time of the conclusionof the agreement (Ifthe agreement purports to allow an action to be
filed exclusivelyin that country, it shall be without prejudiceto the right to file in other countries
exceptin the casesprovided in the followingsub

1jurisdiction under the provisions mentioned
therein in cases where legislation concerning
exclusivejurisdiction (which in the Act corre
sponds to the provisionsin Article 3-5) points
to the courts of a foreigncountry.
• This provision also signifies, by including

visions mentioned signifiesthat exclusivejuris
diction prescribedby law overridesan exclusive
jurisdiction agreement. This happens in two
situations. Firstly, an exclusive jurisdiction
agreement in favor of the Japanese courts has
no effect if the legislationconcerningexclusive
jurisdiction points to the courts of a foreigncountry. Secondly, an exclusivejurisdiction
agreement in favor of the courts of a foreigncountry has no effectif the legislationconcern
ing exclusivejurisdictionpoints to the courts ofArticle 3-8 (Jurisdiction by Submission)
The courts shallhave jurisdictionwhen the defen
dant, without objectingto the jurisdiction, madean oral argument on the merits or made a state
ment in preparatoryproceedings.

Article 3-10 (Exclusion of Application in themeant is that the Japanesecourts shallhave no

Article 3-9 within the provisions mentioned,
that where a Japanesecourt has exclusivejuris
diction under Article 3-5, it has no power todismissproceedingsunder Article3-9.
• The inclusionof Article 3-7 within the pro

paragraph.);or(ii) where the employee filed an action in the
country specifiedby the agreementor where theemployeeinvoked the agreement in response toan action brought by the employerin Japan or ina foreigncountry.

Article 3-9 (Dismissal of Proceedings underSpecial Circumstances)
Even where the Japanese courts have jurisdiction
over an action (exceptwhere the action has beenbrought on the basis of an exclusivejurisdiction
agreement in favor of the Japanese courts) , thecourt may dismiss the whole or part of the pro
ceedingsif, taking into account the nature of thecase, the burden of the defendant to answer theclaim,the locationof evidenceand any other fac
tors, the court finds that there are specialcircum
stancesin which hearing and determiningthe casein Japan would impair fairnessbetween the parties or hinder the proper and efficientconduct of
the hearing.

157

Japan or a third country.

provisionis not a dismissalon the merits but adismissalwithout prejudice.
• No particular provision was made to deal

Article 3-11 (Examination of Evidence ex
officio)
The courts mayexamineevidenceon its own motion in matters relating to the jurisdiction of thespecificallywith international parallellitigation

Japanesecourts.

(concurrent proceedings) since no consensus
emergedas to how best to deal with such situa
tions. Nothing preventsthis provisionfrom be
ing applied where concurrent proceedingsare

Article 3-12 (Point in Time by Reference towhich Jurisdiction shall be Determined)
The jurisdiction of the Japanese courts shall be
determined as of the time when the action is filed.

• The "dismissal"within the meaning of thisprovisionis poorly

drafted. Whatisthe time when the action is filed (Article15 of
Code of CivilProcedure).
• Once the courts have acquiredjurisdiction, it
is not affected by events supervening in thecourseof hearings.
• The jurisdictionby submission(Article3-8)

pending in foreign countries but it remains tobe seen how exactly the courts will appraisesuch situations to determine whether there are"specialcircumstances."• This• Internal jurisdiction is alsodetermined as of

may not be acquired until the defendant makes
an oral argumenton the merits.

5

5

Article 145 (Action for Interlocutory Declara
tion)• Article 145(1) of the Codedure provides:of Civil Proce

158

El FgVAC

Z 13 -' (2011)(3) The parties may not seek a declaratoryjudg
ment under Paragraph (1) where the JapaneseWherethe decision

courts have no jurisdiction over the claim for dec

predicatedof certain

laration becauseof the provisionson exclusiveju

putedrisdiction.

ties may by enlarging

soughtin an action

on the existence or non-existence
legal relationships
which are disin the course of proceedings,

the parfi

their claims seek an in

terlocutory

judgment

confirming

the relationships.

foregoingisfor declaration
However,theshall not apply where the claim fordeclaration is subject to the exclusive juris

3.
f.

diction of another court (except where thatjurisdiction

is based on an agreement be

tween the parties pursuant to Article 11).
• Under the Japanese law of civil procedure,
5

only the main text of a judgment has the binding force of res judicata.
judgment

The interlocutory

for declaration provided

by Paragraph (1) is sought when a party to an action
wishes to obtainpreliminary
declaration
fendant.

force with respect to aclaiming

suchfor example,

for delivery

the demand

the defendant

toof goods may, while rethe territory of Japan while the exclusive juris

diction mentioned in Paragraph (3) concerns

pute is located in Japan.

of the goods, so that the lat

ter issue be settled finally and conclusively.

• The exclusive jurisdiction

mentionedin

Paragraph (1) concerns domesticvenue withininternational jurisdiction.

Paragraph (1) provides:(3) Where the Japanese courts have no jurisdic

Onlytion over a claim brought

as anectedto the plaintiff's

counterclaimpursuant to Paragraph (1), only if
the claim has a close connection with the plain

thereto,may the defendantwith the court hearing

the plaintiff's

claim untiff'stil the oral argument

is concluded.

However,

claim or with the defence

defendant

bring

the claim.

thereto,However,

may thethe forego

ing shall not apply where the Japanese courts do
not have jurisdiction

over the counterclaimbecause of the provisionsconcerning exclusivejuris

for the purposethe foregoingof makinga claimconclaim or the defence
file a counterclaim

shall not apply in the following

cases:— where the claim brought

Relief Act

Translation (Once the Act comes into effect,
the following provision will be incorporated
into the Civil Interim Relief Act.)
Article 11 (Jurisdiction to Grant an Order ofInterim Relief)
A petition for an order of interim relief may bemade only where an action on the merits may be
filed with the courts of Japan or where the asset
to be provisionallyseizedor the object of the dis

has the ownershipby the defendant

to be incorp orated into the Civil Interim

for delivery, seek an interlocutory judgment for declaration that he/she

Article 146 (Counterclaim)b. The provisiona

can be either the plaintiff or the deThus,an action
sistingbindingissue. The party

as the counterclaim is subject to the exclusive jurisdiction• Interim relief can be either the provisional
seizure of assets (saisie conservatoire)or theprovisional disposition to preserve the statusquo.
• The words "object of the dispute (keisbbutsu)" has the connotationof a tangibleproperty.
But it has been suggestedthat it could be interpreted as coveringalsothe subject matter of the
dispute such as employmentrelations.Whether
this interpretationwill be upheld by the courts
remainsto be seen.
• No provision equivalentto Article 3-9 is to
be incorporated into the Civil Interim Relief
Act. However,Article 7 of the latter provides
for the mutatismutandisapplicationof the pro
visions of the Code of Civil Procedure to theinterim reliefprocedure.It is not clearwhether
Article 3-9, too, will become applicable

160

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013(2011)[KojiTAKAHASHI]

Japan'sNewlyEnactedRuleson International
Jurisdiction:
witha Reflection
on SomeIssuesof Interpretation
161

jurisdiction over immovable property from the realm of exclusivejurisdiction, to allow anaction in respect of immovable property situated abroad to be brought in Japan provided
that neither parties objects, in which case the presence of the immovable property abroad
which is the object of the suit would not be inconsistent with the underlying premise of
Article 3-8. On the other hand, it is not inconceivable that the legislature had no convic
tion that such an action should be allowed to be filed in Japan where the defendant has
3. Some issues of interpretation

under Article 3-9

objection to be sued in Japan, in which case the presence of the immovable property
abroad which is the object of the suit might be inconsistent with the underlying premise of

It is expected that the new provisions will give rise to a number of issues of interpretation.

Article 3-2. No amount of scrutiny of legislativematerials shed a clear light on the correct

The less controversialissues have been dealt with in the annotations of the preceding chapness of these suppositions.

ter. What followswill consider three (potentially) controversial issues under Article 3-9.
Article 3-9 is singled out for analysishere because,being applicable in conjunction with all
but a few heads of jurisdiction, it is a provision underpinning the whole operation of theAct.
a. What factors are eligible to be taken into account?

Secondly,even if a particular factor is by itself not inconsistent with the underlying
premise of a particular head of jurisdiction, if it is combined with other factors, they may
jointly constitute "special circumstances." For example, under Article 3-3 (iii), the Japa
nese courts have jurisdiction over an action for the payment of money if the defendant's
asset capable of being seized is located in Japan. This head of jurisdiction is prone to pro
duce exorbitant jurisdiction. Conscious of that danger, the legislature has expresslymade

SinceArticle3-9 involvesa fact-sensitive
assessment,if it is givena broadscopeof opera
tion, it will becomedifficultto predictwith reasonablecertaintywhetherthe court will
dismissproceedingsin anyparticularcase.In the interestof preservingcertainty,it maybe
arguedthat only the factorswhich are inconsistentwith the underlyingpremiseof thehead of jurisdictioninvoked should be taken into account as "specialcircumstances."
Whilethis argumentmay on the surfacelook incontestable,
it cannot be supportedfor thefollowingtwo reasons.
Firstly,ascertainingwhetherany factor is inconsistentwith the underlyingpremiseof a particularheadof jurisdictionis easiersaid than done.Suppose,for example,that anaction is broughtin Japanwith respectto the ownershipof immovablepropertysituatedin a foreigncountry.It has beenseenabovethat underthe Act,jurisdictionoveran action
relatingto immovablepropertydoesnot fallwithin the realmof exclusivejurisdiction(SeeArticle3-5 as well as the annotationto Article3-3 (xi)) . Consequently,if the defendant
makesoral argumentson the meritswithout contestingjurisdiction,the court hasjurisdic
tion underArticle3-8 (jurisdictionby submission). Likewise,if the defendantis domi
ciled in Japan,the court hasjurisdictionunderArticle3-2 (jurisdictionbasedon the domicileof the defendant). Now,it is conceivablethat the legislatureintended,byexcluding

an exception where the value of the asset is extremely low.As annotated above, this excep
tion concerns the absolute value rather than the value relativeto the amount of the claim.
Prior to the enactment, it had been suggested by some commentators that exceptions
should also be made in the caseswhere the defendant's asset situated in Japan had a smaller
value than the amount of the claim or where the presence of the asset in Japan was transient or fortuitous. The legislature did not adopt these exceptions in Article 3-3 (iii) . It
may therefore be inferred that neither the low value of the asset relative to the amount of
the claim nor the transience or fortuity of the presence of the asset is, if taken alone, inconsistent with the underlying premise of Article 3-3 (iii) . Even so, however, that should
not mean that those factors cannot be taken into account under Article 3-9. This is because if combined together or with other factors, they may jointly constitute, quoting
from Article 3-9, "special circumstances in which hearing and determining the case in Ja
pan would impair fairness between the parties or hinder the proper and efficient conductof the hearing."
For those reasons, a rigid categorization of factors between those which are consis
tent and those which are inconsistent with the underlying premise of each head of jurisdic
tion should be eschewed. Such an approach would, contrary to what it seeks to achieve,

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increase legal uncertainty. No factors should be ruled out from the equation of Article 3-9

whereas it may not have to be treated as so significant where the plaintiff to foreign pro

if they might affect the finding whether "hearing and determining the case in Japan would

ceedings is the defendant to Japanese proceedings.Article 3-9 enablesthe courts to take all

impair fairness between the parties or hinder the proper and efficient conduct of the hearsuch factors into consideration with sufficient flexibility.

ing." Weighing up all such factors, the court should arrive at a holistic view whether there

Another advantage of Article 3-9 is that it is capable of dealing with parallel pro

are "special circumstances." Only a case-by-caseanalysisis possible under Article 3-9 andceedings which are not identical but involve related causes of action between the same or

the consequential uncertainty must be accepted as being inherent in that provision.

related parties. Suppose, for example, that X brings proceedings abroad against a company
Y in contract and its director Z in tort and then brings proceedings in Japan against theb. Application

to international

parallellitigationcompany Y in contract on the same cause of action. The two sets of proceedings are not
The Act has made no particular provision to deal specificallywith international parallel lit

identical but related. Since the identity of the proceedings is not a prerequisite under Arti

igation since no consensus emerged as to how best to deal with such situations.(3)Howev

cle 3-9, the Japanese court may dismiss its proceedings if it finds that there are "specialcir

er, nothing preventsArticle 3-9 from being applied to the situation where parallel proceed

cumstances." Suppose also the reverseexample where X brings proceedings abroad against

ings are pending in foreign countries. The concurrence of proceedings may lead the

Y in contract and then brings proceedings in Japan against Y in contract and Z in tort. As

Japanese court to dismiss its proceedings by finding that there are "specialcircumstancesin
which hearing and determining the case in Japan would impair fairnessbetween the parties

Article 3-9 allows partial dismissal of proceedings,the Japanese courts may, if they see fit,or hinder the proper and efficient conduct of the hearing."

ceedings against Y.

dismiss the part of its proceedings which overlap with the proceedings abroad, i.e. the pro

As is well known, under the Brussels I Regulation, a strict rule giving priority to the

As seen above,the flexibility and versatilityof Article 3-9 make it both fit and suffi

earlier proceedings is adopted in the intra-EU context.(4)That rule is predicated on the as

cient to deal with international parallel litigation. Though it is not applicable in the cases

sumption that the quality of justice does not differ greatly between different Member

where the Japanese courts have exclusive jurisdiction, it would not be inappropriate inStates. The contrary assumption that the parallel foreign proceedings may not be as fairview of the sanctity of exclusivejurisdiction that there be no possibility of dismissingJapa

and efficient as the domestic proceedings must be the basis upon which to devise the Japa

nese proceedings in favor of foreign proceedings in such situations.

nese approach since it should be capable of dealing with parallel proceedings to be brought

Another approach for dealing with international parallel proceedings which has

in any country of the world. It follows that while the EU's rule seeks to eliminate parallel

been strongly supported by some commentators is called the recognition prognosis ap

proceedings for the sakeof promoting mutual recognition of judgments, the central aim of
the Japanese courts managing parallel proceedings should be the proper administration ofproach. Under that approach, a Japanese court must dismiss its proceedings where the for
eign proceedings are predicted to produce a judgment entitled to recognition in Japan.

justice. For that purpose, the order of seizure of proceedings may well be unimportantsince the court seized later may be the more appropriate forum.

This approach, if at all workable, would save judicial resources and prevent conflicting

To ensure the proper administration of justice in parallel litigation, it is necessaryto

judgments. It may be argued that since the Act has made no particular provision to deal
specificallywith international parallel litigation, the recognition prognosis approach has

thoroughly evaluate the situation by weighing up a wide range of factors.Thus, if the for

not been precluded. This argument cannot, however, be supported because, as has been

eign proceedings have almost reached the stage of producing a judgment, it may be appro

just demonstrated, Article 3-9 is adequate to deal with international parallel litigation.
Two additional reasonsmay be put forward.

priate to treat them as a significant factor. If, on the other hand, the foreign proceedings
have not passed beyond the initiation phase, it may be unnecessary to attach them asmuch weight. The burden on the defendant may be significant where both the Japaneseand the foreign proceedings are brought by the same plaintiff against the same defendantFirstly, the recognition prognosis approach is based on the premise that if foreign
proceedings are predicted to produce a judgment entitled to recognition in Japan, the for
eign proceedings should be treated as equivalent to Japanese proceedings.This premise is,164Emu. a**[KojiTAKAHASHI]

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it is submitted, incorrect. Foreign proceedings are, even if they are between the same par

ceedings if there are "specialcircumstances" notwithstanding that it has jurisdiction. Thus,

ties on the same cause of action, qualitativelydifferent from Japanese proceedings: the proon the literal interpretation, Article 3-9 has created a new threshold requirement, distin

cedure and the language used in the proceedings are different; the law applicable to thesubstance of the case may be different; the efficiencyof proceedings may be different; theguished from the requirement of international jurisdiction, which serves as a ground for
dismissing proceedings.

burden on the defendant to travel to the fora to take part in the proceedingsmay be differ

If Article 3-9 had followed the case-lawposition with respect to the legal ground for

ent; and the integrity of the court may be different. The recognition prognosis approachdismissing proceedings, the courts would not be able to take into account the events oc

turns a blind eye to all those highly important factors.

curring after the filing of an action because international jurisdiction must be determined

Secondly,and most significantly,the recognition prognosis approach is unworkable

as of the time when the action is filed (SeeArticle 3-12 and its annotation) . On the othersince it is extremelydifficult, if not impossible, to predict whether foreign proceedings will

hand, Article 3-9 on the literal reading would allow the court to dismiss proceedings by

produce a judgment entitled to recognition in Japan. There are two specific difficultiesin
volved. Firstly,it is difficult to predict whether foreign proceedings will produce a judg

taking into account the events supervening in the course of oral hearings because thement at all since it is possible that the foreign court will dismiss the proceedings without

hearings. Thus, if an important witness has moved to a foreign country after filing of the

prejudice, or the plaintiff will voluntarily withdraw its claim, or the parties will settle thecase. Secondly, it is difficult to predict whether the ensuing foreign judgment, assuming

action, the court would be able to take it into account in determining whether there are"
special circumstances."More importantly, where parallel proceedings are pending abroad,that one will be produced, is entitled to recognition in Japan. For a foreign judgment to be

the Japanese courts would be able to decide whether to dismiss its proceedings by having

recognized in Japan, it must meet all the requirements set out in Article 118 of the Coderegard to how the foreign proceedings will pan out in terms of the determination of jurisof Civil Procedure. Item 3 of that provision requires that neither the foreign judgment nor

diction as well as the efficiency and fairness of the proceedings.The literal interpretation

the foreign procedure be contrary to the ordrepublic of Japan, a requirement which canof Article 3-9 will produce those practically beneficial effects.

threshold requirements(8) must generally(9)be satisfied at the time of the closure of oral

only be tested after the foreign proceedings have completely run their course to produce a

That interpretation is, however, contradicted by the legislativehistory. In Japan, forjudgment. (5)In one case, 6) the court adopted the recognition prognosis approach and refused to dismiss its proceedings by noting the difficulty of prediction. That judgment ironenacting or amending major pieces of legislation,bills are usuallysubmitted by the govern

ically exposed the weakness of the approach it took as it proved that the recognition prog

tive Council of the Ministry of Justice. The Legislative Council establishes a working

nosis approach would, because of the difficulty of prediction, only result in refusal togroup for each consulted project consisting of ministerial officialsand others such as practicing lawyers, academic experts and representativesof interest groups. At the 16thmeeting

dismissproceedings.

ment to the Diet. The preparation of bills may be preceded by deliberations at the Legislaof the working group on international jurisdiction, a question was raised whether the legisc. The legal groundfor dismissing

proceedings

lative proposal then on the table intended to depart from the position under the case-law
The provision of Article 3-9 largely follows the principle established by the pre-existingwith respect to the legal ground for dismissing proceedings.To this query, the Ministry ofcase law(7)which allows the courts to decline jurisdiction if there are "exceptional circum

Justice official in charge of the proposal replied negatively.This episode may carry somestances (tokudan no jijo)" which are defined in essentially the same terms as the "special

weight because the proposal then on the table was the same in content as the final text ofcircumstances" of Article 3-9. However,on a literal reading, it deviates from the latter with

Article 3-9. However, it seemswrong to treat it as conclusive.The reply was made in a sin

respect to the legal ground for dismissing proceedings. Under the pre-existing case law, acourt may dismiss proceedings because the "exceptional circumstances" deprive it of juris

gle sentence and the exchange took place in passing without exploring the implications of
the question. The legislativeproposal in question was not phrased in a proper legislative

diction which it would otherwise have whereas under Article 3-9, a court may dismiss pro

style. Moreover, the LegislativeCouncil is not the legislature,the Diet being the sole law

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Somemight resistthe literalinterpretationof Article3-9 by arguingthat it would
resultin givingeffectto a foreignjudgmentrenderedin a situationwherea Japanesecourt,

making organ (Article 41 of the Constitution) . Though the statements made in theCouncil meetings are admissible as an aid to interpretation, it is impermissible to attributethem to the Diet as expressing the will of the legislature.(1°)Since the Diet expressesits inplacedin the foreigncourt'sshoes,would dismissproceedingsunder Article3-9.This argument is basedon the assumptionthat indirectjurisdiction (i.e. the jurisdictionalre
quirementfor the recognitionand enforcementof foreignjudgments)is a mirrorimageof
directjurisdiction(i.e.jurisdictionnecessaryfor the Japanesecourt to hear a case). How
ever,this argumentseemsmisconceived.While the phrase"kansetsukankatsu"(indirect

tent in the words of statutes it enacts, the legislativeintent should be ascertained first andforemost by putting ordinary and natural meaning to the words used. Departure from theliteral interpretation should only be permitted in exceptional cases as where the plain
meaning is difficult to fathom or where it leads to an absurd result. It is instructive that in
England, references to Parliamentary materials are permitted as an aid to statutory con

jurisdiction)is widelyused in literature,the actualexpressionused in Article118 of theCode of CivilProcedureis "saibanken"(adjudicatorypower). Its meaningis open to in
terpretationand does not have to be alignedwith directjurisdiction.It should rather beconstruedas equivalentto a mirror imageof the combinationof directjurisdictionand thestruction only where (a) the wording of legislation is ambiguous, obscure or leads to ab
surdity; (b) the material relied upon consists of statements by the minister or other pro
moter of the bill together if necessary with such other Parliamentary material as isnecessaryto understand such statements and their effect; and (c) the statements relied on

possibilityof dismissalunderArticle3-9. If Article118is so construed,the literalinterpre
tation of Article 3-9 would not be an impedimentto denyingrecognitionto a foreign

are clear." Admittedly, the Japanese legislation is not as conducive to literal interpretation as the English counterpart since it relies more on concise and comprehensive con

judgmentrenderedin a situation where a Japanesecourt, placed in the foreigncourt's
shoes,woulddismissproceedingsunderArticle3-9.
For the foregoingreasons,the literalinterpretationshould be adoptedwith respect
to the legalgroundfor dismissingproceedingsunderArticle3-9.

cepts.(n) But some restraint in the use of travauxpre'paratoireswould be preferable also in
the interpretation of Japanese legislation.Japanese lawyershave a tendency of indulging inan extensiveperusal of preparatory materials in pursuit of teleologicalinterpretation. How
ever, the law is not made only for lawyers. Lay people should be able to put reasonable

4.

Overallevaluationof the new Rules

faith in the text of legislation.Today, literal interpretation has arguably become more im
portant since, thanks to the internet, everyone—lawyer and non-lawyer alike has easyac
cess to the text of all legislation,whereas in the past much of it may have been tucked away

The newly enacted rules are by a large measure a statutory restatement of the existing law.

in the lawyer's office. Though preparatory materials have also become more accessible,(13)diction over an action relating to business in Japan (Article 3-3 (v)) , jurisdiction over an

lay people cannot be expected to work their way through the intricacies of preparatory

action relating to consumer contracts and employment relations (Article 3-4) , and juris

works or even textbooks. The case for literal interpretation is particularly strong with stat

diction agreement concerning consumer contracts and employment relations (Article 3-7

utes of an international dimension as foreign users can be even less expected to conduct research into legislativehistory. If a lawyer is hired to do the research, it will add to the costs(5) (6) . The provision in Article 3-3 (v) represents an effort to adapt to modern-day
business reality and the provisions in Articles 3-4 and 3-7 (5) (6) embrace the modernof litigation. Furthermore, the preparatory materials will seldom prove conclusive. The

idea of establishing specialrules for protecting weaker parties.

Nevertheless, there are some novelties.Most notable examples are the provisions on juris

The Act, by codifying the rules which have hitherto had to be inferred from judicial

parliamentary record is not as illuminating as one would hope since the debates are conducted by politicians who are usually not specialistsin the subject matter of the bills. Bet

precedents, will enhance the transparency of law. The Act will also improve the clarity of
the law to the extent it has settled —in expressterms —some outstanding issues.For exam

ter informed debates take place in the Legislative Council meetings but since they arebased on earlier proposals, their relevance to the final text is often unclear. If reference topreparatory materials is reined in, it would also have the salutary effect of encouraging law
makers to take greater care in choosing the right words for legislativetexts.

ple, with respect to jurisdiction based on the place of performance, while opinion has thus
far been divided whether it is availablewhere the place of performance is not stipulated by1

1

the contract and is ascertainable only by applying the governing law of the contract, the

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Act has now sided with the affirmative opinion by an expressterm in Article 3-3 (i) . Withcline jurisdiction if they find that there are "exceptional circumstances (tokudan no jijo)"

respect to jurisdiction based on the location of the defendant's seizableassets, while opin

in which adjudicating the case in Japan would impair fairnessbetween the parties and hin

ion has thus far been divided over what should be the conditions under which it is avail

der the proper and efficient conduct of the hearing. The courts have often brought thisable, the Act has now expresslystipulated the conditions in Article 3-3 (iii) .
When analyzing the Act, care should be taken to read each head of jurisdiction inprinciple into play even in caseswhere the facts do not display truly "exceptionalcircum
stances." Commentators have been critical of this application because the excessivetenden

conjunction with Article 3-9. The legislator seemed cautious about restricting the bases ofcy to rely on this principle has made it difficult to predict with reasonablecertainty wheth

jurisdiction so that the caseswhich merit being heard in Japan would not be left out of theer the court will hear the case.

jurisdiction of the Japanesecourts. As a result, there are provisions which could, dependingon the facts of the case, lead to what may be seen as an exorbitant jurisdiction. For exam
ple, Article 3-3 (iii) may lead to jurisdiction that is too broad if it is invoked in the cases
where the presence of the defendant's asset in Japan is transient (such as where the defen

In drafting Article 3-9, the legislature has tried to limit its scope of operation by expressly leaving out the case where the jurisdiction is based on an exclusive jurisdiction
agreement, conscious of the fact that such an agreement is likely to be concluded by parties desiring a high degree of legal certainty. In addition, efforts have been made to curb

dant's ship is calling temporarily at a port in Japan) . The danger of an exorbitant jurisdic

the need for dismissal on a fact-sensitiveassessment under Article 3-9 by tightly delineat

tion likewise exists where the jurisdiction under Article 3-6 is invoked in a multiparty ac

ing some of the heads of jurisdiction. Thus, for example, Article 3-2 (3) makes it plaintion. However, any excessof jurisdiction may be alleviatedby the dismissal of proceedingsthat the location of the defendant's non-principal office in Japan per se does not constituteunder Article 3-9 as the courts may come to the finding that there are special circumstanca base of jurisdiction, a point contradicted by some previous court decisions.The jurisdic

es in which hearing and determining the case in Japan would impair fairness between thetion for the place of tort, too, is limited by Article 3-3 (viii) which requires the foreseeabil

parties or hinder the proper and efficient conduct of the hearing. Another illustration canbe drawn from the new rules to protect consumers.As the balance of those rules is strongly

ity of the result occurring in Japan if the harmful act is committed abroad. There are otherin favor of consumers, the application of those provisions will sometimes produce an out

assessmentunder Article 3-9 will prove to be decisive in a high proportion of cases.

examplesthat demonstrate the effort to curb the need to rely on Article 3-9. However, thecome harsh for business operators. For example, if a consumer domiciled in Japan buys aTaken as a whole, the Act marks an important step forward as it will enhance thesouvenir in Hawaii and finds it defective, he/she may invoke jurisdiction under Article 3-4transparency and clarity of law while at the same time bringing the law in line with mod(1) to file an action in Japan to claim damages for breach of the sale contract against theern ideas and business reality. The progress is, however, marred by the failure to ensure a

Hawaiian seller who has no contact whatsoeverwith Japan. It is of no avail for the Hawai

high degree of legal certainty and predictability. It will take many years before stable pat

ian seller to insert an exclusivejurisdiction clause in favor of the Hawaiian courts sinceterns of application emerge from the accumulation of judicial authorities.

such an agreement has no effect under Article 3-7 (5) (i) . All it can do is expect the Japa
nese courts to dismissthe proceedings under Article 3-9.
While Article 3-9 will be useful to reach fair and appropriate results in individual
cases, legal certainty and predictability will be undermined if it is given a broad scope ofoperation since it involves a case-by-caseassessment of a wide range of factors. Legal cer
tainty and predictability are particularly important for the rules of international jurisdic
tion so the parties do not have to waste too much time and money before starting to liti
gate on the merits. As noted in the preceding chapter, the provision of Article 3-9 largely
follows the principle established by the pre-existingcase law which allows the courts to de(1) Mattersof personalstatus are excludedfrom the scope.
(2) For another versionof Englishtranslation,see Masato Dogauchi,"ForthcomingRules on
InternationalJurisdiction"12 KokusaiShihoNenpo (JapaneseYearbookof PrivateInternation
al Law)212 (2010) .
(3) For an accounton the demiseof proposals,see Dogauchi,supranote 2 at p. 220.
(4) Article27 of the Council Regulation(EC) No. 44/2001 on Jurisdictionand the Recognition and Enforcementof Judgmentsin Civiland CommercialMatters (OJ 2001/L 12/1) .
(5)

The other requirementsare capableof being tested prior to the actual deliveryof a judg

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ment. They are indirectjurisdiction(Item 1 of Article118), serviceof a claimform on the defendant (Item 2 of Article118) and reciprocity(Item 4 of Article118) .
(6) Interlocutoryjudgment by the TokyoDistrict Court on 30 May 1989 (1348 Hanrei Jiho91) .
(7) The leading case is the judgment of the SupremeCourt on 11 November1997 (51-10
Minshit4055).
(8) Other thresholdrequirementsincludeinternal and internationaljurisdiction,standing (locusstanch)and legitimateinterestto sue.
(9) Article3-12 constitutesan exceptionwith respectto the requirementof internationaljuris
diction.Article15 of the Code of CivilProcedureconstitutesanotherexceptionwith respectto
the requirementof internaljurisdiction.
(10) The same may be said of explanatorynoteswhich are often publishedby the government
officialsin personalcapacityafterthe billshavebecomelaw.An explanatorynote waspublishedalso for the Act which this article is concerned (by Naoko Higurashi et al. 958 (2011.8.1)
NBL 62). It steerslargelyclearof controversialissues.
(11) Pepperv. Hart [1993] 1 All ER 42 (Houseof Lords).
(12) Those are the featureswhich characterizethe legislationof civillaw countriesas opposedto the commonlaw counterpart.The provisionsof the Act, too, bear the hallmarksof the civil
ian legislativestyle.
(13) The minutes of the meetingsof Parliamentarycommitteesare availableon the websitesof
both housesof the Diet.The minutes of the workinggroupsof the LegislativeCouncilof recent
yearsarealso availableon the websiteof the Ministryof Justice.

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