Abstract
Japan has been a member of the OECD, and set up a National Contact Point in 2008. Japan has also taken actions under the 2011 Guiding Principles. Japan stated in 2016 that it planned to formulate its National Action Plan in the coming years, and had started preliminary discussion among relevant ministries.
Under the Japanese Company Law, directors assume the duty of care of a good manager acting in a loyal manner in compliance with laws and regulations. In addition, a director shall disclose material facts with respect relevant transactions at a shareholders meeting and obtain approval of the shareholders meeting in certain cases. As regards corporate governance, a new rule on the disclosure of reasons not to have an outside director was introduced in 2014. There is also a rule relating to anti-corruption in the Unfair Competition Prevention Act. Furthermore, a third party can take action on the ground of tort against a company for breach of a rule of CSR. However, there have been few cases in which the court touched on the legal nature of a rule of CSR.
There have been no cases so far on breaches of CSR in which a Japanese court decided on international adjudicative jurisdiction or in which it allowed the application of ethical rules instead of, or as a complement to, the applicable law. It remains to be seen how cross-border civil disputes with regard to CSR is dealt with under the Japanese conflict of laws.
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Notes
- 1.
METI, Kigyō Kaikei, Kaiji, CSR Seisaku [Corporate Accounting, Disclosure, and CSR Policy] http://www.meti.go.jp/policy/economy/keiei_innovation/kigyoukaikei/ (Japanese).
- 2.
The Japanese NCP (2016) Procedural Guidance for the Japanese National Contact Point (NCP) under the OECD Guidelines for Multinational Enterprises. http://www.mofa.go.jp/mofaj/gaiko/csr/pdfs/ncp_jm_e.pdf.
- 3.
Otherwise, it revised its “Procedural Guidelines” which contain its operational rules and changed its title to “Procedural Guidance” in September 30, 2016. See, Ministry of Foreign Affairs (2016) Revision of the Procedural Guidelines for the Japanese National Contact Point (NCP) under the OECD Guidelines for Multinational Enterprises (MNEs). http://www.mofa.go.jp/press/release/press4e_001284.html.
- 4.
The Japanese NCP (2014) Initial Assessment by the Japanese NCP on a Specific Instance Involving Bridgestone Tire Indonesia in Relation to the OECD Guidelines for Multinational Enterprises. http://www.mofa.go.jp/mofaj/files/000194208.pdf.
- 5.
The Japanese NCP (2016) Final Statement on a Specific Instance Involving Tower Semiconductor Ltd. and TowerJazz Japan, Ltd. in Relation to the OECD Guidelines for Multinational Enterprises, http://www.mofa.go.jp/mofaj/files/000194210.pdf.
- 6.
The Japanese NCP (2017) Final Statement on a Specific Instance Involving Suzuki Motor Corporation and Suzuki Motor (Thailand) Co., Ltd. in Relation to the OECD Guidelines for Multinational Enterprises. http://www.mofa.go.jp/mofaj/files/000269214.pdf.
- 7.
Statement by Ambassador Mitsuko SHINO, The Permanent Mission of Japan (2016) National action plans to implement the UN Guiding Principles: stepping up Government commitments and action. http://www.geneve-mission.emb-japan.go.jp/itpr_ja/statements_rights_20161116.html.
- 8.
Headquarter of Promoting the SDG (2016) The implementing guideline of The Sustainable Development Goals. http://www.mofa.go.jp/mofaj/files/000252818.pdf (in Japanese).
- 9.
Ministry of Foreign Affairs of Japan (2018) Bijinesu to Jinken [Business and Human Rights]. http://www.mofa.go.jp/mofaj/fp/hr_ha/page22_001608.html (in Japanese).
- 10.
Supreme Court, Judgment, July 14, 2005 (Fair Practice Rules), Minshū [Supreme Court of Civil Reports], Vol. 59, No. 6, p. 1323. The English text is available at “Supreme Court of Japan”, http://www.courts.go.jp/app/hanrei_en/detail?id=801.
- 11.
Kansaku (2009), pp. 193, 207.
- 12.
Business Policy Forum, Japan (2014) Kigyō no Shakai-teki Sekinin ni kansuru Kokusai Kikaku no Tekisetsu-na Katsuyō no Arikata nitsuiteno Tyōsa Kenkyū Hōkoku-sho [Report of Investigation and Research on the Appropriate Use of International Standards concerning the Corporate Social Responsibility], p. 22. http://www.bpfj.jp/act/download_file/98193838/18791038.pdf, according to which 53.0% of the interviewed companies (106 out of 200 companies) have adopted the ISO 26000.
- 13.
Article 330 of the Companies Code.
- 14.
Article 644 of the Civil Code.
- 15.
Tokyo High Court, Judgment, April 28, 1973, Hanrei Jihō [Law case Reports], No. 1081, p. 130.
- 16.
Article 355 of the Companies Code.
- 17.
Supreme Court, Judgment, June 24, 1970, Minshū, Vol. 24, No. 6, p. 625. See also Egashira (2015), p. 430.
- 18.
Article 356 (1) of the Companies Code. A Company with Board of Directors (which means any Stock Company which has a board of directors, or any Stock Company which is required to have a board of directors under the provisions of the Companies Code. Article 2 (vii)) shall obtain approval of the Board of Directors. Article 365 (1).
- 19.
Egashira (2015), p. 434.
- 20.
“Company with Board of Company Auditors” means any Stock Company which has a board of company auditors, or any Stock Company which is required to have a board of company auditors under the provisions of the Companies Code. Article 2 (x) of the Companies Code.
- 21.
“Public Company” means any Stock Company the articles of incorporation of which do not require, as a feature of all or part of its shares, the approval of the Stock Company for the acquisition of such shares by transfer. Article 2 (v) of the Companies Code.
- 22.
“Large Company” means any Stock Company which satisfies any of the following requirements: (a) that the amount of the stated capital in the balance sheet as of the end of its Most Recent Business Year (hereinafter in this (a) and (b) below referring to the balance sheet reported to the annual shareholders meeting under the provision of Article 439 in cases provided for in the first sentence of such Article, and referring to the balance sheet under Article 435(1) in cases where the first annual shareholders meeting after the incorporation of the Stock Company has not yet been held) is 500,000,000 yen or more; or (b) that the total sum of the amounts in the liabilities section of the balance sheet as of the end of its Most Recent Business Year is 20,000,000,000 yen or more. Article 2 (vi) of the Companies Code.
- 23.
“If Securities issued by a company (excluding regulated Securities; hereinafter the same applies in this Article, except in the following items) fall under one of the categories set forth in the following items, the company that is the Issuer of the Securities must submit, for each business year, a report stating the trade name of the company, the financial condition of the corporate group to which the company belongs and the company’s own financial condition, other material particulars of the company’s business, and other particulars specified by Cabinet Office Ordinance as necessary and appropriate in the public interest or for the protection of investors (hereinafter referred to as an “Annual Securities Report”) to the Prime Minister, within three months after the end of that business year (or, if there is a compelling reason that the company cannot submit the document within such period, within a period approved in advance by the Prime Minister pursuant to the provisions of Cabinet Office Ordinance), for a domestic company, or within the period that is specified by Cabinet Order as necessary and appropriate in the public interest or for the protection of investors, for a foreign company, pursuant to the provisions of Cabinet Office Ordinance… .
-
(i)
Securities listed on a Financial Instruments Exchange (excluding Specified Listed Securities);
-
(ii)
Securities specified by Cabinet Order as having equivalent distribution statuses to the Securities set forth in the preceding item (excluding Securities specified by Cabinet Order as having equivalent distribution statuses to Specified Listed Securities);
-
(iii)
Securities to whose Public Offering or Secondary Distribution the main clause of Article 4, paragraph (1), the main clause of Article 4, paragraph (2), the main clause of Article 4, paragraph (3), or the main clause of Article 23-8, paragraph (1) or (2) applies (excluding those specified in the preceding two items); or
-
(iv)
Securities (limited to share certificates, Rights in a Securities Investment Business, etc. that are deemed to be Securities pursuant to Article 2, paragraph (2), and other Securities specified by Cabinet Order) that are issued by the company, for which the number of holders on the last day of the relevant business year or on the last day of any of the business years that began within four years before the day on which the relevant business year began is at least the number specified by Cabinet Order (or, for Rights in a Securities Investment Business, etc. that are deemed to be Securities pursuant to Article 2, paragraph (2), if the number of holders on the last day of the relevant business year is at least the number specified by Cabinet Order) (excluding Securities specified in the preceding three items).”
-
(i)
- 24.
“‘Outside Director’ means a director of any Stock Company who satisfies all of the following requirements;
-
(a)
a person who is not an Executive Director (meaning a director as listed in the items of Article 363 (1) of a Stock Company or other directors who execute the operations of said Stock Company; hereinafter the same shall apply) or Executive Officer, manager, or other employee (hereinafter collectively referred to as “Executive Director, etc.”) of said Stock Company or its Subsidiary and has not been an Executive Director, etc. of said Stock Company or its Subsidiary for ten years prior to assuming his/her office;
-
(b)
if a person who has been a director, accounting advisor (if the accounting advisor is a juridical person, a member who is in charge of the affairs), or company auditor of said Stock Company or its Subsidiary (excluding a person who has been an Executive Director, etc.) at the time within ten years prior to assuming his/her office, a person who has not been an Executive Director, etc. of said Stock Company or its Subsidiary for ten years prior to assuming his/her office as director, accounting advisor, or company auditor;
-
(c)
a person who is not a Parent Company, etc. of such Stock Company (limited to a natural person) or director or executive officer, manager, or other employee of a Parent Company, etc.;
-
(d)
a person who is not an Executive Director, etc. of a Subsidiary, etc. of the Parent Company, etc. of such Stock Company (excluding such Stock Company and its Subsidiary); and
-
(e)
a person who is not a spouse or relative within the second degree of kinship of a director or executive officer, manager, or other important employee of such Stock Company, or its Parent Company, etc. (limited to a natural person)”. Article 2 (xv) of the Companies Code.
-
(a)
- 25.
Article 327-2 of the Companies Code.
- 26.
Egashira (2015), p. 384.
- 27.
Tokyo District Court, Judgment, April 27, 2017, available at “Courts in Japan” <http://www.courts.go.jp/> (financial assets); Tokyo District Court, Judgment, April 23, 2015, (Hei 24 (wa) No. 20434, Hei 25 (wa) No. 6384), unpublished (membership of a golf club); Osaka District Court, Sakai Branch, Judgment, February 5, 2015, Sakimono Torihiki Saibanrei-Shū [Case Reports on Futures Trading], No. 75, p. 433 (shares); Tokyo District Court, Judgment, February 5, 2015 (Hei 24 (wa), No. 23479) unpublished (investment); Tokyo District Court, Judgment, September 26, 2014, Hanrei Jihō [Juridicial Reports], No. 2261, p. 199 (shares); Osaka High Court, Judgment, February 27, 2014, Hanrei Jihō, No. 2243, p. 82 (contracts for English lessons); Tokyo District Court, Judgment, September 13, 2013 (Hei 24 (wa) No. 12521), unpublished (foreign paper money); Tokyo District Court, Judgment, June 24, 2013 (Hei 22 (wa) No. 42922) unpublished (membership); Tokyo District Court, Judgment, February 22, 2013, Hanrei Taimuzu [Judicial Times], No. 1406, p. 306 (shares); Tokyo District Court, Judgment, February 4, 2013 (Hei 22 (wa) No. 42922) unpublished (membership); Tokyo District Court, Judgment, December 10, 2012 (Hei 24 (wa) No. 6181), unpublished (shares); Tokyo District Court, Judgment, August 27, 2012, Hanrei Taimuzu, No. 1388, p. 355 (fund); Tokyo District Court, Judgment, April 24, 2012 (Hei 22 (wa) No. 27471) unpublished (future commodities); Sendai District Court, Ogawara Branch, Judgment, March 23, 2012, Sakimono Torihiki Saibanrei-Shū, No. 65, p. 298 (membership); Tokyo District Court, Judgment, May 30, 2012, (Hei 23 (wa) No. 13652), unpublished (investment); Tokyo High Court, Judgment, November 30, 2011, Hanrei Jihō, No. 2152, p. 116 (shares); Tokyo District Court, Judgment, October 17, 2011 (Hei 20 (wa) No. 38487), unpublished (investment); Tokyo District Court, Judgment, September 30, 2011 (Hei 21 (wa) No. 45461), unpublished (shares); Tokyo District Court, Judgment, March 26, 2010, Shōken Torihiki Higai Hanrei Serekuto [Selected Cases on Damage from Securities Transactions], Vol. 38, p. 219 (fund); Tokyo District Court, Judgment, September 27, 2011, (Hei 19 (wa) No. 539, Hei (wa) No. 7589) unpublished (pension); Tokyo District Court, Judgment, December 21, 2009, Sakimono Torihiki Saibanrei-Shū, No. 62, p. 165 (foreign exchanges); Tokyo District Court, Judgment, July 25, 2007, Hanrei Taimuzu, No. 1288, p. 168 (future commodity).
- 28.
Hanrei Taimuzu, No. 1418, p. 133.
- 29.
Tokyo District Court, Judgment, December 25, 2014 (Hei 21 [Wa] No. 30700), unpublished.
- 30.
Osaka District Court, Judgment, December 22, 2004, Hanrei Jihō, No. 1892, p. 108; Hanrei Taimuzu, No. 1172, p. 271.
- 31.
Law No. 54 of 2015.
- 32.
Article 21 (2) of the Unfair Competition Prevention Act.
- 33.
Article 21 (8) of the Unfair Competition Prevention Act.
- 34.
Tokyo District Court, Judgment, January 29, 2009, Hanrei Jihō, No. 2046, p. 159.
- 35.
Ex. Tokyo High Court, Judgment, April 14, 2016, Rōdō Hanrei Journal [Labor Case Journal], No. 55, p. 35; Osaka District Court, May 25, 2012, Rōhan [Labor cases], No. 1057, p. 78.
- 36.
Tokyo District Court, Judgment, April 24, 2012, Sakimono Torihiki Saibanrei-Shū [Case Reports on Future Trade], No. 65, p. 338; Tokyo District Court, Judgment, March 15, 2012 (Hei 23 (wa) No. 20171), unpublished; Tokyo District Court, Judgment, May 31, 2011, Sakimono Torihiki Saibanrei-Shū, No. 63, p. 20; Tokyo District Court, Judgment, April 11, 2011, Sakimono Torihiki Saibanrei-Shū, No. 64, p. 341.
- 37.
Tokyo District Court, Judgment, October 30, 2017 (Hei 28 (wa) No. 31611, Hei 29 (wa) No. 7003), unpublished.
- 38.
See Kansaku (2009).
- 39.
Article 13(1) of the Arbitration Law (Law No. 138 of 2003):
Except as otherwise provided for in laws and regulations, an Arbitration Agreement shall be effective only when the subject thereof is a civil dispute (excluding disputes of divorce or dissolution of adoptive relation) which can be settled between the parties.
- 40.
Article 36(1) of the Arbitration Law:
The law which the Arbitral Tribunal should comply with in making an Arbitral Award shall be as provided by the agreement of the parties. In this case, if laws and regulations of a given State have been designated, such designation shall be deemed as designating the laws and regulations of the State which shall be directly applied to the case and not the laws and regulations of the State providing the application of conflicting domestic and foreign laws and regulations, unless a contrary intention has been clearly indicated.
- 41.
Article 3 of the Arbitration Law, Supplementary Provisions:
-
(1)
For the time being until otherwise enacted, any arbitration agreements (…hereafter in this article referred to as the “consumer arbitration agreement”) concluded between consumers (which hereafter in this article shall mean consumers as described in article 2, paragraph (1) of the Consumer Contract Act [Law No. 61 of 2000]) and businesses (which hereafter in this article shall mean businesses as described in article 2, paragraph (2) of the same law) subsequent to the enforcement of this Law, the subject of which constitutes civil disputes that may arise between them in the future, shall follow the provisions described in paragraphs (2) through (7).
-
(2)
A consumer may cancel a consumer arbitration agreement. Provided, this shall not apply in the event that the consumer is a claimant in arbitral proceedings based on the consumer arbitration agreement.
-
(3)
… .
-
(1)
- 42.
Article 4 of the Arbitration Law, Supplementary Provisions:
For the time being until otherwise enacted, any arbitration agreements concluded following the enforcement of this Law, the subject of which constitutes individual labor-related disputes (which means individual labor-related disputes as described in article 1 of the Law on Promoting the Resolution of Individual Labor Disputes [Law No.112 of 2001]) that may arise in the future, shall be null and void.
- 43.
Article 2 of the Civil Conciliation Act (law No. 152 of 2004):
When a civil dispute arises, a party may file a petition for conciliation with a court.
- 44.
The distinction between mediation and conciliation is not clear in Japan, thus, the present author mentions only conciliation.
- 45.
Article 3-2(1) of the Code of Civil Procedure (law No. 109 of 1996):
The courts have jurisdiction over an action that is brought against a person domiciled in Japan; against a person without a domicile or of domicile unknown, whose residence is in Japan; and against a person without a residence or of residence unknown, who was domiciled in Japan before the action was filed (unless the person has been domiciled in a foreign country after last being domiciled in Japan).
- 46.
Article 3-2(3) of the Code of Civil Procedure:
The courts have jurisdiction over an action that is brought against a corporation or any other association or foundation whose principal office or business office is located in Japan, and against a corporation, association, or foundation without a business office or other office, or with a business office or other office of unknown location, whose representative or other person principally in charge of its business is domiciled in Japan.
- 47.
Article 3-6 of the Code of Civil Procedure:
If multiple claims are involved in a single action and the Japanese courts have jurisdiction over one of those claims and no jurisdiction over the others, the action may be filed with the Japanese courts only if the one claim is closely connected with the other claims; provided, however, that with regard to an action brought by multiple persons or an action brought against multiple persons, this applies only in the case specified in the first sentence of Article 38.
Article 38 of the Code of Civil Procedure:
If rights or obligations that are the subject matter of litigation are common to two or more persons or are based on the same factual or statutory causes, these persons may sue or be sued as co-litigants… .
- 48.
See Yokomizo (2012a), pp. 107–108.
- 49.
Article 3-3 of the Code of Civil Procedure:
An action set forth in one of the following items may be filed with the Japanese courts in the case specified in said item:
-
(i)
an action on a claim for performance of a contractual obligation; on a claim involving benevolent intervention in another’s affairs that has been done, or unjust enrichment that has arisen, in connection with a contractual obligation; on a claim for damages due to nonperformance of a contractual obligation; or on any other claim involving a contractual obligation:
if the contractually specified place for performance of the obligation is within Japan, or if the law of the place adopted under the contract gives a place within Japan as the place for performance of the obligation.
-
(i)
- 50.
Article 3-4(1) of the Code of Civil Procedure:
An action involving a contract concluded between a Consumer (meaning an individual (except for an individual that becomes a party to a contract as a part of a business undertaking or for business purposes); the same applies hereinafter) and an Enterprise (meaning a corporation or any other association or foundation or an individual that becomes a party to a contract as a part of a business undertaking or for business purposes; the same applies hereinafter) (this excludes a labor contract; hereinafter referred to as a “Consumer Contract”), which is brought by the Consumer against the Enterprise, may be filed with the Japanese courts if the Consumer is domiciled in Japan at the time the action is filed or at the time the Consumer Contract is concluded.
- 51.
Article 3-4(2) of the Code of Civil Procedure:
An action involving a dispute over a civil matter that arises between an individual worker and that worker’s employer with regard to the existence or absence of a labor contract or any other particulars of their labor relations (hereinafter referred to as an “Individual Civil Labor Dispute”),which is brought by the worker against the employer, may be filed with the Japanese courts if the place where the labor is to be provided as per the labor contract to which the Individual Civil Labor Dispute pertains (or if such a place is not established, the location of the place of business that hired the worker) is within Japan.
- 52.
Article 3-3 of the Code of Civil Procedure:
An action set forth in one of the following items may be filed with the Japanese courts in the case specified in said item:
(viii) an action for a tort: if the place where the tort occurred is within Japan (excluding if the consequences of a wrongful act committed in a foreign country have arisen within Japan but it would not ordinarily have been possible to foresee those consequences arising within Japan);
- 53.
See Yokomizo (2012a), p. 107.
- 54.
Article 32 of the Constitution of Japan (Constitution 1946):
No person shall be denied the right of access to the courts.
- 55.
Yokomizo (2012b), p. 5.
- 56.
Article 3-9 of the Code of Civil Procedure:
Even when the Japanese courts have jurisdiction over an action (except when an action is filed based on an agreement that only permits an action to be filed with the Japanese courts), the court may dismiss the whole or part of an action without prejudice if it finds that there are special circumstances because of which, if the Japanese courts were to conduct a trial and reach a judicial decision in the action, it would be inequitable to either party or prevent a fair and speedy trial, in consideration of the nature of the case, the degree of burden that the defendant would have to bear in responding to the action, the location of evidence, and other circumstances.
- 57.
Article 3-3 of the Code of Civil Procedure:
An action set forth in one of the following items may be filed with the Japanese courts in the case specified in said item:
(iii) an action on a property right: if the subject matter of the claim is located within Japan, or if the action is a claim for the payment of monies, and seizable property of the defendant is located within Japan (except when the value of such property is extremely low);
- 58.
Article 3-3 of the Code of Civil Procedure:
An action set forth in one of the following items may be filed with the Japanese courts in the case specified in said item:
(iv) an action against a person with an office or a business office, which is filed in connection with the business conducted at that person’s office or business office: if said office or business office is located within Japan;
- 59.
Article 3-3 of the Code of Civil Procedure:
An action set forth in one of the following items may be filed with the Japanese courts in the case specified in said item:
(v) an action against a person that conducts business in Japan (including a foreign company (meaning a foreign company as prescribed in Article 2, item (ii) of the Companies Act (Act No. 86 of 2005)) that continually carries out transactions in Japan): if said action involves the business that the person conducts in Japan;
- 60.
Article 3-3 of the Code of Civil Procedure:
An action set forth in one of the following items may be filed with the Japanese courts in the case specified in said item:
(vii) one of the following actions involving a company or any other association or foundation: if the association or foundation is a corporation and it is incorporated pursuant to the laws and regulations of Japan, or if the association or foundation is not a corporation but its principal office or business office is located within Japan:
-
(a)
an action brought by a company or any other association against its member or a person that was its member, an action brought by one member against another member or against a person that was a member, or an action brought by a person that was a member against a member, which is based on the relevant person’s status as a member;
-
(b)
an action brought by an association or foundation against its officer or a person that was its officer, which is based on the person’s status as an officer;
-
(c)
an action brought by a company against its incorporator or a person that was its incorporator, or against its inspector or a person that was its inspector, which is based on the person’s status as an incorporator or inspector;
-
(d)
an action brought by a company’s or other association’s creditor against its member or a person that was its member, which is based on the person’s status as a member.
-
(a)
- 61.
Article 3-5 of the Code of Civil Procedure:
-
(1)
Actions prescribed in Part VII, Chapter II of the Companies Act (excluding those prescribed in Sections 4 and 6 of that Chapter), actions prescribed in Chapter VI, Section 2 of the Act on General Incorporated Associations and General Incorporated Foundations (Act No. 48 of 2006), and other actions equivalent thereto involving associations or foundations incorporated pursuant to Japanese laws and regulations other than those Acts, are under the exclusive jurisdiction of the Japanese courts.
-
(2)
An action related to a registration is under the exclusive jurisdiction of the Japanese courts if the place where the registration is to be made is within Japan.
-
(3)
An action about the existence or absence or the validity of an intellectual property right (meaning an intellectual property right as prescribed in Article 2, paragraph (2) of the Intellectual Property Basic Act (Act No. 122 of 2002)) that arises through a registration establishing that intellectual property right is under the exclusive jurisdiction of the Japanese courts if that registration was made in Japan.
-
(1)
- 62.
Article 3-6 of the Code of Civil Procedure:
If multiple claims are involved in a single action and the Japanese courts have jurisdiction over one of those claims and no jurisdiction over the others, the action may be filed with the Japanese courts only if the one claim is closely connected with the other claims;…
- 63.
Article 3-7 of the Code of Civil Procedure:
-
(1)
Parties may establish, by agreement, the country in which they are permitted to file an action with the courts.
-
(2)
The agreement as referred to in the preceding paragraph is not valid unless it is made regarding actions that are based on a specific legal relationship, and executed by means of a paper document.
-
(3)
If Electronic or Magnetic Records (meaning records used in computer data processing which are created in electronic form, magnetic form, or any other form that is otherwise impossible to perceive through the human senses alone; the same applies hereinafter) in which the content of the agreement is recorded are used to execute the agreement as referred to in paragraph (1), the agreement is deemed to have been executed by means of a paper document and the provisions of the preceding paragraph apply.
-
(4)
An agreement that an action may be filed only with the courts of a foreign country may not be invoked if those courts are unable to exercise jurisdiction by law or in fact.
-
(5)
An agreement as referred to in paragraph (1) which covers Consumer Contract disputes that may arise in the future is valid only in the following cases:
-
(i)
if the agreement provides that an action may be filed with the courts of the country where the Consumer was domiciled at the time the Consumer Contract was concluded (except in the case set forth in the following item, any agreement that an action may be filed only with a court of such a country is deemed not to preclude the filing of an action with a court of any other country);
-
(ii)
if the Consumer, in accordance with said agreement, has filed an action with the courts of the agreed-upon country, or if an Enterprise has filed an action with the Japanese courts or with the courts of a foreign country and the Consumer has invoked said agreement.
-
(i)
-
(6)
An agreement as referred to in paragraph (1) which covers Individual Civil Labor Dispute that may arise in the future is valid only in the following cases:
-
(i)
if the agreement is made at the time a labor contract ends, and establishes that an action may be filed with the courts of the country where the place that the labor was being provided as of that time is located (except in the case set forth in the following item, an agreement that an action may be filed only with the courts of such a country is deemed not to preclude the filing of an action with the courts of any other country);
-
(ii)
if the worker, in accordance with said agreement, files an action with the courts of the agreed-upon country; or if the enterprise files an action with the Japanese courts or with the courts of a foreign country and the worker invokes said agreement.
-
(i)
-
(1)
- 64.
Article 3-8 of the Code of Civil Procedure:
If the defendant presents an oral argument on the merits of the case or enters a statement in preparatory proceedings without entering the affirmative defense that the Japanese courts lack jurisdiction, the courts have jurisdiction.
- 65.
Law No. 78 of 2006.
- 66.
Supreme Court, Judgment, July 15, 1985, Minshū, Vol. 29, No. 6, 1061.
- 67.
See Yokomizo (2008), pp. 175–186.
- 68.
Article 7 of the Tsūsoku-hō:
The formation and effect of a juristic act shall be governed by the law of the place which was chosen by the party/parties at the time when the act was made.
- 69.
Article 9 of the Tsūsoku-hō:
The parties to a juristic act may change the law governing the formation and effect thereof. However, if the change of the governing law would prejudice the rights of a third party, the change may not be asserted against such third party.
- 70.
Article 8 of the Tsūsoku-hō:
-
(1)
If there is no applicable law chosen by the party/parties as in the preceding article, the formation and effect of a juristic act shall be governed by the law of the place with which the act was most closely connected at the time the act was made.
-
(2)
In the case of the preceding paragraph, if the characteristic performance of a juristic act is to be made by one party, the law of his/her habitual residence (if the party has an establishment which is related to the juristic act, the law of the place where the establishment is located, and if the party has several establishments in different jurisdictions which are related to the juristic act, the law of the place where the principal establishment is located) is presumed to be the law of the place with which the juristic act is most closely connected.
-
(3)
Notwithstanding the preceding paragraph, in applying paragraph 1, if the object of the juristic act is an immovable, the law of the place where the immovable is situated is presumed to be the law of the place with which the act is most closely connected.
-
(1)
- 71.
Article 21 of the Tsūsoku-hō:
The parties of a tort may, after it occurred, change the law applicable to the formation and effects of claims arising from it. However, if the rights of a third party are affected, the change may not be asserted against him.
- 72.
Article 18 of the Tsūsoku-hō (Special Rule on Product Liability):
Notwithstanding the provision of the preceding article, the formation and effects of claims arising from torts which are detrimental to life, body or property of other persons caused by the defect in the delivered product (the term “product” as used in this article shall mean any goods which were produced or processed) against the producer (the term “producer” as used in this article shall mean any person who produced, processed, imported, exported, distributed or sold the product in the course of his/her business) or any person who identified himself/herself as a producer by indicating his/her name, trademark or other feature on the product (hereinafter referred to as “producer et al.”) shall be governed by the law of the place in which the product was delivered to the victim. However, if the delivery of the product at that place was not foreseeable under normal circumstances, the law of the place of the principal establishment of the producer et al.(or his habitual residence if he has no establishment) shall apply.
Article 19 of the Tsūsoku-hō (Special Rule on Defamation):
Notwithstanding the provision of the article 17, the formation and effect of claims arising from defamation shall be governed by the law of the place in which the victim has his/her habitual residence (or the law of the place of its principal establishment if the victim is a juristic person or an association or foundation).
- 73.
Article 17 of the Tsūsoku-hō
The formation and effects of claims arising from a tort shall be governed by the law of the place in which the result of the infringing act was produced. However, if it was not forseeable under normal circumstances that the result would be produced at that place, the law of the place in which the infringing act was done shall apply.
- 74.
Article 20 of the Tsūsoku-hō(Exception for a Place which Presents Manifestly Closer Connection):
Notwithstanding the provision of the preceding three articles, the formation and effects of claims arising from a tort shall be governed by the law of another place, when that place presents manifestly closer connection with the tort than the one indicated by the preceding three articles, in consideration of the fact that the parties had at the time of the occurrence of the tort common habitual residence, the fact that the tort constitutes the breach of contractual obligations between the parties, or other circumstances of the case.
- 75.
Article 22 of the Tsūsoku-hō(Limitation in Torts by Ordre public):
-
(1)
If the obligations arising from a tort are governed by a foreign law, claims for damages or any other remedies under that law may not be claimed if the event does not constitute a tort under Japanese law.
-
(2)
If the obligations arising from a tort are governed by the foreign law, even when the event constitutes a tort both under that foreign law and Japanese law, the victim may not claim any more recovery of damages or any other remedies than the ones available under Japanese law.
-
(1)
- 76.
Article 42 of the Tsūsoku-hō:
Where a foreign law is to apply but its application would be contrary to public policy (ordre public), it shall not apply.
- 77.
Law No. 95 of 2007.
- 78.
Article 118 of the Code of Civil Procedure:
A final and binding judgment rendered by a foreign court is valid only if it meets all of the following requirements:
-
(i)
the jurisdiction of the foreign court is recognized pursuant to laws and regulations, conventions, or treaties;
-
(ii)
the defeated defendant has been served (excluding service by publication or any other service similar thereto) with the requisite summons or order for the commencement of litigation, or has appeared without being so served;
-
(iii)
the content of the judgment and the litigation proceedings are not contrary to public policy in Japan;
-
(iv)
a guarantee of reciprocity is in place.
-
(i)
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Yokomizo, D. (2020). Japan. In: Kessedjian, C., Cantú Rivera, H. (eds) Private International Law Aspects of Corporate Social Responsibility. Ius Comparatum - Global Studies in Comparative Law, vol 42. Springer, Cham. https://doi.org/10.1007/978-3-030-35187-8_13
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