Japanische Schiedsgerichtsbarkeit – Fünf Jahre nach der Reform
Abstract
The present year marks the fifth anniversary of the reform of the Japanese Arbitration Law and the Commercial Arbitration Rules of the Japan Commercial Arbitration Association (JCAA Rules). In the course of reform of the justice system, the establishment of an arbitration scheme, including international commercial arbitration, had been explicitly suggested as a means of strengthening private alternative dispute resolution.
The adoption of the UNCITRAL Model Law brings the legal framework largely into line with international standards, although some issues such as enforceability of interim measures by the arbitral tribunal and multiparty arbitration have been left for further consideration. Virtually all of the weak points which have drawn considerable criticism in the past have been remedied. Parties may be represented by foreign registered lawyers (gaiben) and lawyers practising abroad. Foreigners may serve as arbitrators. Since a further reform of the JCAA Rules in 2006, the language to be used in the proceedings may be chosen freely and is no longer limited to Japanese and English. The severely criticized practice of Japanese arbitrators to promote resolution by settlement, which has been influenced by the practice of Japanese courts, has expressly been subjected to the consent of both parties. The same applies to decisions ex aequo et bono. Awards made in contravention of this requirement may be set aside by the competent court. With regard to the impartiality and independence of arbitrators, the JCAA Rules have been amended. Potential arbitrators have to disclose in writing all circumstances likely to give rise to justifiable doubts as to their impartiality. In order to prevent drawn-out procedures, the JCAA Rules require the arbitral tribunal to draw up a schedule of proceedings after establishment and to make efforts for the expedited resolution of the dispute.
Besides the changes to the legal provisions, the Japanese courts enforcing them are generally supportive of arbitration, thereby adding to a supportive framework for international commercial arbitration. However, this has not yet brought about the substantial increase in the use of arbitration that had been hoped for. Instead, the caseload at JCAA remains static on a low level.
In order to stimulate the use of arbitration, it would be necessary for Japanese companies (which participate in arbitration proceedings abroad quite frequently) to use their bargaining power to insert dispute resolution clauses providing for arbitration in Japan. Promoting the legal reform is therefore important to overcome or at least lessen the foreign parties’ reluctance to endorse such clauses, a reluctance which is still influenced by the former unfavourable image of Japanese arbitration procedures.
In domestic contractual relations, the use of arbitration is further impeded by the traditional aversion to dispute resolution clauses, preference for conciliation and a lack of knowledge about arbitration as such. Therefore, besides promoting the benefits of arbitration, the use of skilled foreign arbitrators and the further training of Japanese arbitrators are important factors in increasing confidence in reliable and fair dispute resolution by arbitration.
