Treatment of and Access to Foreign Law in Japan

Abstract

The treatment of foreign law by courts is an important issue as it determines the functioning of private international law and the outcome of the case. Standing at the crossroad of conflict of laws and procedural law, the methods of ascertaining and applying foreign law are grounded on different theoretical foundations and practical conceptions across various jurisdictions. This paper aims to examine how foreign law is treated in court proceedings in Japan. First, this study expounds general principles concerning the application of conflict-of-law rules and the designated foreign substantive law governing the case at hand in Japan, including the possibility of judicial review. Second, this study analyses the implementation of these general principles from a practical viewpoint, especially in light of the question of how to ascertain the content of foreign law and fill the gap when it is not ascertainable. Finally, some remarks on the utility and feasibility of adopting an international instrument to improve access to foreign law conclude this paper.