Neue Entwicklungen in der japanischen Handels- und Investitionsschiedsgerichtsbarkeit

Abstract

This article will address the recurring question of why Japan, as one of the leading developed economies with significant foreign investment and with globally acting companies, is not more often involved in international arbitrations. This applies to private commercial arbitrations, as well as to investment arbitrations, which allow private investors to raise claims against states on the basis of international treaties. A comprehensive assessment of Japanese arbitral practice over the last years reveals various positive developments that make some criticisms seem exaggerated. This will be demonstrated by an analysis of the successful modernization of the arbitration rules of Japan’s leading arbitral institution as well as of select court decisions dealing with arbitral proceedings. At the same time, the article critically examines potential areas of further development. This includes the powers of representation of foreign lawyers in national arbitral proceedings with international aspects as well as the current discussions about creating an arbitral hearing center in Japan to increase the attractiveness of Japan as a seat of the arbitration. The article concludes with an overview of investment arbitration in Japan. Japanese investors thus far have been very reluctant to initiate investment arbitrations against states that have impaired their investments. The Japanese government’s expansion of the investment treaty framework, as well as other developments to be examined by the author, allow for the conclusion that this area of law will gain increasing relevance in Japan in the future.