Ius Comparatum – Global Studies in Comparative Law

Mary Keyes Editor

Optional Choice of
Court Agreements
in Private
International Law

EditorMary Keyes
Grifﬁth Law School
Grifﬁth University
Brisbane, Australia

ISSN 2214-6881
ISSN 2214-689X (electronic)
Ius Comparatum – Global Studies in Comparative Law
ISBN 978-3-030-23913-8
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ktakahas@mail.doshisha.ac.jp

Japan: Quests for Equilibrium
and Certainty
Koji Takahashi

1 The Treatment of Choice of Court Agreements in General
1.1

General Attitude to Choice of Court Agreements

Japanese law is generally in favour of enforcing the parties’ agreements about
jurisdiction. That policy is enshrined in paragraphs 1 through 4 of Article 3-7 of
the Code of Civil Procedure (hereinafter, “CCP”). It reads1:(1) The parties may decide by agreement the country in which they may ﬁle an action.
(2) The agreement provided in the preceding paragraph shall have no effect unless it is in
writing and is concerned with an action arising from speciﬁc legal relationships.
(3) For the purpose of the preceding paragraph, an agreement is deemed to be in writing if it
is recorded in an electromagnetic record (viz. a record made in an electronic form, amagnetic form, or any other form unrecognizable to human perception, which is used for
information processing by 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 legally or factually unable to exercise jurisdiction.

It should be noted that the lack of connection between the facts of the case and theplace of the chosen court would not be a valid ground for denying effect to the choiceof court agreement. Thus, a choice of court agreement choosing a neutral forum canbe enforced.
The heads of jurisdiction set out in the CCP are those for direct jurisdiction. But
indirect jurisdiction, which is one of the prerequisites for the recognition and

1

There is no ofﬁcial English translation of Japanese law. All the translation of Japanese legislationin this article is the work of the present author.

K. Takahashi (*)
Doshisha University Law School, Kyoto, Japane-mail: ktakahas@mail.doshisha.ac.jp© Springer Nature Switzerland AG 2020
M. Keyes (ed.), Optional Choice of Court Agreements in Private International Law,
Ius Comparatum – Global Studies in Comparative Law 37,
https://doi.org/10.1007/978-3-030-23914-5_11

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K. Takahashi

enforcement of foreign judgments laid down in Article 118 of the CCP, is interpreted
in general as a mirror image of direct jurisdiction. It follows that a foreign judgment
rendered on the basis of a choice of court agreement which satisﬁes the requirementsof paragraphs 2 and 3 of Article 3-7 of the CCP is recognised and can be enforced inJapan, provided that the other prerequisites are also satisﬁed.
Almost all heads of jurisdiction of the CCP are subject to Article 3-9 of the CCP,
which provides for dismissal of proceedings when there are special circumstances.2
It reads:
Even where the Japanese courts have jurisdiction over an action (except where the action has
been brought on the basis of an exclusive choice of court agreement in favour of the Japanesecourts), the court may dismiss the whole or part of the proceedings if, taking into account thenature of the case, the burden on the defendant to answer the claim, the location of evidence
and any other factors, the court ﬁnds that there are special circumstances by reason of whichhearing and determining the case in Japan would impair fairness between the parties orhinder the proper and efﬁcient conduct of hearings.

It should be noted that an exclusive choice of court agreement constitutes the only
exception to the application of this provision. It also demonstrates the strong policy
in favour of the enforcement of such a choice of court agreement.

1.2

Limitations to the Parties’ Choice

There are two sets of limitations to the enforcement of choice of court agreements.
The ﬁrst set concerns consumer contracts and individual employment relations.
Consumers and employees are categorically deemed to be the weaker parties. A
choice of court agreement having as its object a dispute which may arise inconnection with such a contract or relation has effect only in the limited circumstances set forth in paragraphs 5 and 6 of Article 3-7 of the CCP. Those provisions
read:(5) The agreement provided in Paragraph (1) having as its object disputes which may arise inconnection with a consumer contract shall have effect only in the circumstances set forth
below:(i) where it is an agreement which allows an action to be ﬁled in the country where theconsumer was domiciled at the time of the conclusion of the contract (If the agreement
purports to allow an action to be ﬁled exclusively in that country, it shall be without
prejudice to the right to ﬁle in other countries except in the cases provided in thefollowing sub-paragraph.); or(ii) where the consumer ﬁled an action in the country speciﬁed by the agreement or where
the consumer invoked the agreement in response to an action brought by the trader inJapan or in a foreign country.

2

For details, see Takahashi (2015a), pp. 104–110.

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Japan263(6) The agreement provided in Paragraph (1) having as its object civil disputes which may
arise over individual employment relations shall have effect only in the circumstances set
forth below:(i) where it is an agreement which was concluded when the employment contract was
terminated and stipulates that an action may be brought in the country in which the labor
was being supplied at the time of the conclusion of the agreement (If the agreement
purports to allow an action to be ﬁled exclusively in that country, it shall be without
prejudice to the right to ﬁle in other countries except in the cases provided in thefollowing sub-paragraph.); or(ii) where the employee ﬁled an action in the country speciﬁed by the agreement or where
the employee invoked the agreement in response to an action brought by the employer
in Japan or in a foreign country.

Another set of limitations to the enforcement of choice of court agreements exists
where the case falls within what Japanese law regards as the realm of exclusive
jurisdiction. Though poorly drafted, Article 3-10 provides:
The provisions contained in Article 3-2 to Article 3-4 and those contained in Article 3-6 tothe preceding Article shall have no application where, with respect to the action in question,
the exclusive jurisdiction of the Japanese courts is prescribed by legislation.

It follows that the Japanese courts have no jurisdiction under Article 3-7(1) incases where legislation concerning exclusive jurisdiction (which in the Act corresponds to the provisions in Article 3-5) points to the courts of a foreign country.
Article 3-5 provides for exclusive jurisdiction with respect to certain actions related
to companies, actions with respect to registration, and actions with respect to theexistence and effect of the intellectual property rights which come into existence byregistration. Thus, for example, a choice of court agreement in favour of Japanesecourts is not enforced where the action relates to the registration of immovable
property situated in a foreign country.

1.3

Background to the Present Law

The CPP was amended with effect from 1 April 2012 to codify the rules ofinternational jurisdiction for the ﬁrst time in its history.3 Among the provisions
inserted by the amendment, Article 3-7 largely reﬂects the pre-existing case law. The
leading case is Chisadane,4 the only case in which the Supreme Court has had an
opportunity to consider international choice of court agreements. In that case, theSupreme Court set forth the following principles (hereinafter, “the Chisadane principles”): (i) regarding the formal validity of an international choice of court agreement, it is not necessary for both offer and acceptance to be delivered by means of a3

For details, see e.g. Takahashi (2011), p. 146.
Supreme Court, Judgment, November 28, 1975, 29 Minshu (10) 1554 [1975]. An English
translation of the judgment is available in the Japanese Annual of International Law,
No. 20 (1976) p. 106.
4

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K. Takahashi

signed document but it is sufﬁcient if the chosen courts are expressly speciﬁed in adocument made by either or both of the parties and the existence and content of theagreement are clear; (ii) under the civil procedure law of Japan, effect will in
principle be given to a foreign choice of court agreement excluding the jurisdictionof the Japanese courts, if the case does not belong to the realm of exclusive
jurisdiction of the Japanese courts, and if the chosen foreign courts would havejurisdiction in the case; and (iii) effect may, however, be denied to a choice of court
agreement if it is “extremely unreasonable and contrary to the law of public policy”(hereinafter, “the public policy test”).
With respect to formal validity, Article 3-7(2) has conﬁrmed the writing requirement. The component of the Chisadane principles which is concerned with formal
validity has arguably survived the amendment of the CCP as furnishing the precise
meaning of the writing requirement.
The prerequisites for giving effect to exclusive foreign choice of court agreements
as enunciated in the Chisadane principles have been enshrined in Article 3-7(4) as
well as Article 3-10 of the CCP which provides that Article 3-7, among otherprovisions, has no application where, with respect to the action in question, theexclusive jurisdiction of the Japanese courts is prescribed by legislation.
The public policy test contained in the Chisadane principles was not given
statutory footing but arguably has survived the amendment of the CCP since nostatutory basis would need to be found to safeguard the fundamental legal value ofJapan. Thus, the public policy test may be necessary to deny effect to an exclusive
choice of court agreement, if it speciﬁes a country whose judiciary is corrupt or
biased, or if it is concluded to oust the application of Japanese rules of mandatory
nature. The need to rely on it, however, has been greatly curtailed by the enactmentof paragraphs 5 and 6 of Article 3-7. While the courts have been reluctant to ﬁnd aviolation of public policy until several years ago,5 there have been several more
recent cases in which the courts found violations.6 These were cases involving
consumer contracts or individual employment relations.7 They fell outside thetemporal scope of application of Article 3-78 but they would today be decided

5
In the corresponding period, there was only one known case (Tokyo District Court, Judgment,
September 13, 1999, Kaijiho Kenkyukaishi [Maritime Law Research Journal] Vol. 154 (2000)
p. 89) in which public policy was found to be violated.
6
Tokyo High Court, Judgment, June 28, 2012, LEX/DB 25504140; Tokyo District Court, Judgment, November 14, 2012, LEX/DB 25483568; Osaka High Court, Judgment, February 20, 2014,
H.J. (2225) 77 [2014]; and the Tokyo High Court, Judgment, November 17, 2014, H.T. (1409)
200 [2015].
7
Among the cases mentioned in the preceding footnote, the cases of the Tokyo High Court and the
Osaka High Court involved consumer contracts. The Tokyo District Court case concerned individual employment relations.
8This provision has application to choice-of-court agreements concluded on or after April 1, 2012.

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under paragraphs 5 and 6 of that article. It is not hard to believe that the ﬁndings ofviolation in those decisions were inﬂuenced by the Act for the amendment of the
CCP whose promulgation preceded those decisions.
Article 3-9, the relevance of which to the present discussion has been explained
above, also reﬂects the pre-existing case law. In a clear departure from the case-law
based principle, however, it makes an exception for an exclusive choice of court
agreement in favour of Japanese courts. The effect of such an agreement has, to that
extent, been strengthened.
Another departure from the pre-existing case law concerns the limitations withrespect to consumer contracts and individual employment relations. As detailed
above, those limitations are contained in paragraphs 5 and 6 of Article 3-7 whichwere inserted at the time of the amendment to the CCP. Prior to the amendment, no
special treatment was given to individual employment relations. Thus, in a caseinvolving an exclusive choice of court agreement between United Airlines and its
employee which speciﬁed the Illinois courts, the Tokyo District Court observed thatsuch an agreement would allow the airline to efﬁciently manage disputes with its
employees of various nationalities. But the Court did not ﬁnd that the agreement
failed the public policy test and decided to give effect to it.9 The courts deciding on
the same facts today under Article 3-7(6) would have no choice but to deny effect tothe agreement.

1.4

Inﬂuence of International Instruments

Japan has neither signed nor acceded to the Hague Convention on Choice of Court
Agreements 2005. The General Assembly of the Legislative Council of the Ministryof Justice stated in its decision on 6 September 2005 that it would seem appropriate
for Japan to start considering whether to ratify this Convention when major countries
had moved towards ratiﬁcation and it had become certain that this Convention would
play the role of a globally uniform agreement concerning choice of court
agreements.10
It may be said generally that the European Union instruments such as the Brussels
I Regulation have inﬂuenced the recent Japanese legislation on international litigation as much as it has introduced special rules for the protection of consumers andemployees as the weaker parties.

9

Tokyo High Court, Judgment, November 28, 2000 (United Airlines case) H.J. (1743) 137 [2001].
http://www.moj.go.jp/shingi1/shingi2_050906-1-1.html (in Japanese).

10

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2 Optional Choice of Court Agreements
2.1

Effect of Optional Choice of Court Agreements

The effect of a choice of court agreement is a procedural matter and, in accordancewith the maxim forum regit processum, is subject to the law of the forum. Where theissue is brought before a Japanese court, the following rules of Japanese law will beapplied.
Article 3-7 of the CCP, outlined above, is applicable to optional choice of court
agreements except for the following provisions: paragraph (4), the second half of(ii) of paragraph (5) and the second half of (ii) of paragraph (6). Articles 3-9 and
3-10, too, are applicable.
Whereas an exclusive choice of court agreement purports to give jurisdiction to
the courts chosen and oust the jurisdiction of the other courts, an optional choice ofcourt agreement only purports to confer jurisdiction on the courts chosen. Thus, theJapanese courts have jurisdiction by virtue of an optional choice of court agreementin their favour. An optional choice of court agreement in favour of foreign courts, on
the other hand, does not deprive the Japanese courts of the jurisdiction which they
have under the provisions of the CCP. It remains so even if the option of suing in anominated foreign court is actually exercised. The existence of such an agreement
may, however, be given some weight in favour of the foreign proceedings when theJapanese court decides whether to dismiss the parallel proceedings of Japan under
Article 3-9 of the CCP or under other theories for international lis pendens. It goes
without saying that commencing proceedings in a court other than that nominated in
an optional choice of court agreement does not constitute a breach of the agreement.
So a judgment rendered by a foreign court is not denied recognition or enforcementin Japan solely on the ground that the court is other than that nominated in an
optional choice of court agreement.
Article 3-9 does not make an exception for an optional choice of court agreement.
Nevertheless, dismissal under that provision will be rare where Japanese courts arechosen by the parties because “fairness between the parties” would usually bepromoted by respecting their agreement.11

2.2

Optional Choice of Court Agreements Involving
Presumptively Weaker Parties

The CCP contains special rules (paragraphs (5) and (6) of Article 3-7) which aremeant to protect consumers and employees as the presumptively weaker parties.
11e.g. The Kyoto District Court in its judgment on 29 January 2015 (2015WLJPCA01296002)
refused to dismiss proceedings under Article 3-9 where there was a non-exclusive choice-of-court
agreement in favour of the Japanese courts.

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A choice of court agreement having as its object disputes which may arise inconnection with a consumer contract is given effect in limited circumstances and, inmost of such circumstances, only as an optional choice of court agreement. Thus,
such an agreement may be relied upon by the consumer to ﬁle an action (the ﬁrst halfof paragraph (5)(ii)). It may also be relied on by the trader but only where it is anagreement which allows an action to be ﬁled in the country where the consumer was
domiciled at the time of the conclusion of the contract (paragraph (5)(i)). The traderscannot, however, rely on such an agreement to contest jurisdiction even if it purports
to be an exclusive choice of court agreement (See the bracket of paragraph (5)(i)).
Thus, where a Japanese trader and a consumer domiciled in State X have concluded
an exclusive choice of court agreement in favour of the courts of X, if the consumer
ﬁles an action in Japan, the trader cannot rely on it to contest the jurisdiction of theJapanese courts.
Again, a choice of court agreement having as its object civil disputes which may
arise over individual employment relations is given effect in limited circumstances
and, in most of such circumstances, only as an optional choice of court agreement.
Thus, such an agreement may be relied upon by the employee to ﬁle an action (theﬁrst half of (ii) of paragraph (6)). Such an agreement may also be relied on by theemployer but only where it is an agreement which was concluded when the employment contract was terminated and stipulates that an action may be brought in the
country in which the labor was being supplied at that time (paragraph (6)(i)). The
employers cannot, however, rely on such an agreement to contest jurisdiction even if
it purports to be an exclusive choice of court agreement (See the bracket of paragraph(6)(i)). Thus, suppose that a Japanese employer and an employee supplying labour inState Y concluded an exclusive choice of court agreement in favour of the courts of
Y at the time of terminating the employment contract. If the employee ﬁles an actionin Japan to seek the payment of a severance allowance, the employer cannot rely on
the agreement to contest the jurisdiction of the Japanese courts.
These special rules are operationally neutral in terms of the nationality anddomicile of the parties. Consequently, it can happen that they work against theinterest of traders and employers based in Japan. Thus, for example, where aJapanese souvenir shop ﬁles an action in Japan against its former customer from aforeign country, seeking payment of the price for the souvenir it has sold to thecustomer, the Japanese courts have no jurisdiction to hear the claim even if the shop
relies on a choice of court agreement choosing the Japanese courts.

2.3

Distinguishing Optional from Exclusive Choice of Court
Agreements

Japanese law has no statutory provision laying out a test for distinguishing optional
choice of court agreements from exclusive choice of court agreements. In the run up
to the amendment of the CCP, the law makers considered the idea of deeming aktakahas@mail.doshisha.ac.jp

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foreign choice of court agreement to be an agreement to oust the jurisdiction of theJapanese courts unless there is a contrary agreement but rejected it as being contrary
to international business practice. They instead decided to leave the matter to theinterpretation of agreements.12
The case law has produced no clear principles. The Japanese courts have thetendency of relying on factual appreciation and their own sense of reasonableness,rather than engaging in choice-of-law analysis, in interpreting choice of court
agreements to see whether they are exclusive or optional.13 Thus, the Chisadanecase featured a choice of court agreement contained in a bill of lading which
stipulated14: “All actions under this contract of carriage shall be brought before thecourt in Amsterdam and no other court shall have jurisdiction with regard to any
other action unless the carrier brings such an action before a court of other jurisdiction or voluntarily accepts the jurisdiction of such court.” The Supreme Court foundthat this agreement was an exclusive choice of court agreement on the reasoning thatit clearly purported to leave intact the option of suing in one of the fora having
jurisdiction in the case, namely Amsterdam, and exclude other fora. However, theCourt did not formulate rules for distinguishing exclusive from optional choice ofcourt agreements in general terms. Nor did the Court enunciate any canon ofinterpretation which should be applied to interpret choice of court agreements.
The tendency of the Japanese courts is to characterise a choice of court agreement
as exclusive unless otherwise indicated. Thus, in a case featuring an agreement
giving one of the parties the right to decide where to sue from a list of fora, the Tokyo
District Court held it to be an exclusive choice of court agreement in accordance withwhat it perceived to be the obvious purport of the agreement as gleaned from theright of choice.15 But the opposite characterization can be taken. Thus, in a caseinvolving an agreement stating “. . . any dispute between the parties shall be submitted to the Commercial Court in Paris, France,” the Tokyo District Court found it
to be an optional choice of court agreement, noting that it did not purport to exclude
the jurisdiction of other courts. The Court acknowledged that the Commercial Court
in Paris would have jurisdiction over the dispute even without the agreement but
held that it would not be inconsistent with interpreting the agreement as conferring
jurisdiction on that court.16 The Tokyo District Court adopted the contrary reasoning

12

Ministry of Justice (2009) p. 30 (in Japanese).
e.g. Supreme Court, Judgment on the Chisadane case, supra note 4; Tokyo District Court,
Judgment, April 11, 2008, H.T. (1276) 332; Tokyo District Court, Judgment, September
24, 2008, 2008WLJPCA09248005; Tokyo District Court, Judgment, March 26, 2014,
2014WLJPCA03269011.
14
The original text of the choice-of-court agreement was in English. But the judgment, written in
Japanese, only contains some English words from the agreement. The translation is a reconstruction
by the present author using those English words.
15
Tokyo District Court, Judgment, September 24, 2008, supra note 13. Other decisions adopting thesame characterisation include the Tokyo District Court, Judgment, February 28, 1994, H.T. (876)268.
16Tokyo District Court, Judgment, March 26, 2014, supra note 13.
13

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in another case which involved an agreement choosing the Arbitration Court ofPrimorsk Region of the Russian Federation. The Court noted that the Russian court
would have jurisdiction over the dispute even without the agreement and held that it
would be reasonable to interpret the agreement as purporting to exclude the jurisdiction of other courts.17

2.4

In Intra-national Cases

Optional choice of court agreements are not treated differently in intra-national cases
to the way they are treated in international cases. However, the tendency of thecourts in intra-national cases is to deem a choice of court agreement to be optional
unless the contrary intent is clear as in the cases where the agreement speciﬁes one of
the courts which would have jurisdiction even without the agreement.18 It is opposite
to the tendency in international cases (See Sect. 2.3 above). This is curious because,in the intra-national context, the courts have discretion to transfer the case to another
otherwise competent court even if they are seised on the basis of an exclusive choiceof court agreement (Article 17 of the CCP). Moreover, because of various procedural
differences and the long distance involved, the consequence of ousting jurisdiction isarguably greater in the international context than in the intra-national context. In thelatter context, the courts characterised a choice of court agreement as optional rather
than exclusive on the reasoning that it was contained in a standard form of contract
and/or that weaker parties ought to be protected. There are in fact no such special
rules for protecting consumers and employees in the intra-national context as
paragraphs (5) and (6) of Article 3-7 which are only applicable in the international
context. After the amendment to the CCP which inserted those provisions, if thedifferent treatment of intra-national and international cases persists, the presence andabsence of special rules for protecting weaker parties may furnish an explanation.

3 Asymmetrical Choice of Court Agreements
3.1

Effect of an Asymmetrical Choice of Court Agreement

An asymmetrical choice of court agreement refers to a choice of court agreement thatcombines both exclusive and optional aspects. Where an asymmetrical choice ofcourt agreement is validly formed, each aspect of such an agreement is given effect

17

Tokyo District Court, Judgment, March 27, 2015, H.T. (1421) 238.
E.g. Osaka High Court, February 21, 1990 H.T. (732) 270; Kobe District Court Amagasaki
Branch, Judgment, October 14, 2011, H.J. (2133) 96. The latter even overrode the word “exclusive”
used in the choice-of-court agreement.
18

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according to its purport. Thus, an exclusive aspect is given effect as if it were an
exclusive choice of court agreement and an optional aspect is given effect as if itwere an optional choice of court agreement.

3.2

Formation and Validity of an Asymmetrical Choiceof Court Agreement

A question which seems more important is whether such an agreement is validly
formed in spite of the lack of equilibrium between the parties. The choice of court
agreement featured in the Chisadane case was in fact asymmetrical.19 But theSupreme Court only looked at the exclusive aspect of this agreement when ﬁndingthat it did not fall foul of the public policy test.
Where Japanese law governs the validity of a choice of court agreement in a
consumer contract, the Consumer Contract Act would be applicable. It reads in
Article 10:
Any clause in a consumer contract which purports to restrict the rights or add to the
obligations of the consumer as provided, through the application of the provisions unrelated
to the public order, in the Civil Code, the Commercial Code or other statutes or statutory
instruments shall be null and void if it unilaterally harms the interests of the consumer incontravention of the fundamental principle enshrined in Article 1(2) of the Civil Code.20

In no case has a choice of court agreement been found null and void under thisprovision. Such a likelihood would be slimmer now with the introduction of Article
3-7(5). Under the latter, the trader cannot rely on an exclusive choice of court
agreement to contest the consumer’s choice of forum. Besides, the trader can only
rely on an optional choice of court agreement under the limited situation prescribed.
The lack of equilibrium stemming from the text of an asymmetrical choice of court
agreement would thus be drastically redressed. Consequently, it would hardly bepossible to say that such an agreement would “unilaterally harm the interests of theconsumer.”
Where Japanese law governs the formation of a choice of court agreement in astandard form contract (whether or not it is a consumer contract falling within thescope of the Consumer Contract Act), it will become subject to the new Article 548-2
which is to be inserted in the Civil Code with effect from 1 April 2020. It provides:(1) Those who have made an agreement to engage in a standard transaction (a transaction
engaged in by a speciﬁc party with an opposite party drawn from the rank of many andunspeciﬁed persons, for both of whom the standardization of the whole or part of its
content is reasonable) shall be deemed to have agreed to individual clauses contained in

19
20

See the text accompanying supra note 14.
Article 1(2) of the Civil Code provides:
The exercise of rights and the performance of obligations shall be done in good faith.

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Japan271
the standard form (the entirety of the clauses prepared by the speciﬁc party as the content
of the contract in a standard transaction) if:(i) they have agreed to make the standard form the content of their contract; or(ii) the party who has prepared the standard form has indicated beforehand to the
opposite party that it shall become the content of the contract.

(2) Notwithstanding the provision of the preceding paragraph, any clause falling within thedescription of the preceding paragraph which purports to restrict the rights or add to the
obligations of the other party shall be deemed not to have been consented to if it isconsidered to harm the interests of that other party unilaterally in contravention of thefundamental principle enshrined in Article 1(2), having regard to the manners and actual
circumstances of the standard transaction as well as the social norms relevant to thetransaction.

This provision is applicable to, for example, a choice of court agreement in astandard form loan contract which purports to confer jurisdiction on the chosen
courts and, only where the borrower acts as the plaintiff, oust the jurisdiction of theother courts. Where the contract is B2B, Article 3-7(5) of the CCP would not help
redress the lack of equilibrium. Consequently, such an agreement will be considered
to harm the interests of the borrower unilaterally. It remains to be seen whether the
courts will consider that the fundamental principle enshrined in Article 1(2), i.e. theprinciple of good faith which permeates the Civil Code, is accordingly contravened.

4 Need for ReformIn the area of optional choice of court agreements,21 Japanese law should bereformed to provide for a clear test for distinguishing optional from exclusive choiceof court agreements. As seen in Sect. 2.3 above, there is no statutory provision layingout a test for distinguishing these two types of agreements. Neither has the case law
produced any clear test. The uncertainty as to whether any speciﬁc choice of court
agreement is optional or exclusive would result in time and expenses being wasted at
the jurisdictional stage of the litigation.
It may be thought that the cause of uncertainty lies in the courts’ tendency to treat
this issue as a factual question. But treating it as a legal question would not promotecertainty if a choice-of-law analysis were applied to ascertain the applicablelaw because there is uncertainty over what should be the choice-of-law rules forinterpreting choice of court agreements.22 Moreover, legal systems often fail to

21

For a suggestion of law reform on choice-of-court agreements in general, see Takahashi(2015b), p. 395.
22
The present author believes that where a choice-of-court agreement is contained in a contract, it
should, like other terms in the same contract, be submitted to the choice-of-law analysis for that
contract, with the result that it becomes subject to the law governing the contract except in what will
be a rare situation where the parties have chosen a different law speciﬁcally for the choice-of-court
agreement. Other authors prefer severing a choice-of-court agreement from the remainder of thecontract and applying a separate choice-of-law analysis to it from the remainder of the contract.

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provide an unequivocal answer to the question how to distinguish between optionaland exclusive choice of court agreements. Consequently, even if the court has
managed to ascertain the applicable law through a choice-of-law analysis, it willoften face the difﬁculty of actually applying that law.
The present author believes that a solution to this problem lies in establishing aclear test which is applicable regardless of the law governing the interpretation of
choice of court agreements. It can, for example, be a rebuttable presumption in favorof exclusiveness as stipulated by Article 3(b) of the Hague Choice of Court Convention. Such a rule may be categorised as an overriding mandatory rule because it isa rule applicable irrespective of the law governing the interpretation of choice ofcourt agreements. The promotion of certainty and predictability with respect to theinterpretation of choice of court agreements merits being pursued by enacting
overriding mandatory rules since such agreements are invariably concluded withthe aim of avoiding the uncertainty which would otherwise result from the application and interpretation of jurisdictional rules in general.

References
Ministry of Justice (2009) Kokusai Saiban Kankatsu Hôsei ni kansuru Chûkan Shian no Hosoku
Setsumei [Explanatory Notes on Interim Proposal concerning Legislation on International
Jurisdiction] p 30 (in Japanese)
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Koji Takahashi is a professor at the Doshisha University Law School in Kyoto, Japan. Aftercompleting his LLB and LLM in Kyoto and LLM and PhD in London, he started his full-time career
in England. First as a researcher at the Institute of Maritime Law of Southampton University andthen as a lecturer at the Birmingham University, he taught and researched in various areas ofEnglish law. After returning to his native country, Japan, his focus shifted to Japanese law andcomparative law. He has been on the editorial board of the Journal of Private International Law
since 2005. He was on the advisory board for the Foreign Direct Investment International Moot
Competition from 2011 to 2015. Since 2012, he is an adjunct Professor at the Michigan State
University in the United States, teaching international litigation and arbitration. He has written
extensively in English and Japanese on diverse issues of private international law, international
trade law and international arbitration. In the past several years, he is also productive in his researchon the legal aspects of blockchain and cryptocurrencies.

ktakahas@mail.doshisha.ac.jp