May 2019: Asia-Pacific Litigation Update

Quinn Emanuel Urquhart & Sullivan, LLP

Quinn Emanuel Urquhart & Sullivan, LLP

Developments over the past two years set the stage for Japan’s transformation into a more favored venue for alternative dispute resolution (“ADR”). These include:

  • The Japanese Government’s June 2017 announcement of its “Basic Policy on Economic and Fiscal Management and Reform,” which recognized the importance of arbitration to efficiently resolve disputes among multinational corporations and expressed the government’s commitment to expanding the country’s capability to host international arbitration, including by establishing new hearing facilities in Tokyo and Osaka in cooperation with private organizations.
  • The May 2018 opening of the Japan International Dispute Resolution Center in Osaka (“JIDRC-Osaka”)—the first of two state-of-the-art hearing facilities contemplated by the government’s 2017 policy announcement. JIDRC-Osaka may be reserved by private arbitration associations and private entities for arbitration proceedings. A second hearing facility, JIDRC-Tokyo, is still in the planning stages.
  • The September 2018 opening of the International Arbitration Center in Tokyo (“IACT”) as Asia’s first private arbitration association with an emphasis on intellectual-property disputes. The chair of the IACT’s governing board is former Chief Judge Randall Rader of the U.S. Court of Appeals for the Federal Circuit. The IACT has assembled an extensive roster of experienced arbitrators, including retired judges from Japan’s IP High Court and the U.S. Federal Circuit.
  • The November 2018 opening of the Japan International Mediation Center (“JIMC”) on the campus of Doshisha University in Kyoto in cooperation with the Japan Arbitration Association (“JAA”). The JIMC has an extensive panel of 48 participating domestic and foreign mediators from 13 jurisdictions around the world. The JIMC has a short set of default rules to facilitate mediations and ensure confidentiality. Parties are free to modify the rules by agreement. Parties to JIMC mediations may conduct their meetings on the Doshisha campus or elect to use facilities at the ancient Kodaiji Temple.
  • The January 2019 enactment of substantive amendments to the rules of the Japan Commercial Arbitration Association (“JCAA”). These amendments created procedures to facilitate ongoing interaction between the parties and arbitrators and to increase the certainty of arbitral awards. The JCAA has also emphasized its ability to offer qualified foreign arbitrators to conduct proceedings in English and other languages by, for the first time, publishing its list of more than 120 Japanese and foreign arbitrators. Tracing its roots back to 1953, the JCAA is one of Japan’s oldest arbitration associations and has cooperation agreements with over 40 sister organizations throughout the world.
  • The 130-year anniversary of the first maritime arbitration conducted in Japan by the predecessor to the Tokyo Maritime Arbitration Commission (“TOMAC”), which is administered by the Japan Shipping Exchange (“JSE”). Maritime arbitrations by TOMAC have become increasingly diverse over the years, expanding from disputes over ship purchases, building, and repair to insurance coverage, underwriting, and financing.

Although Japanese companies traditionally have consented to ADR in foreign jurisdictions, their demand for Japan-based arbitration is on the rise as arbitrations and mediations involving Japanese companies have increased both in number and value. Moreover, recent growth in foreign direct investment in Japan has vastly increased the number of foreign subsidiaries operating in Japan as well as the number of foreign stakeholders in Japanese companies. See, The expanding ADR infrastructure in Japan as well as the availability of qualified foreign arbitrators and mediators makes Japan a more accommodating ADR venue not only for Japanese companies but also for foreign stakeholders who may prefer the efficiency of ADR for disputes involving their Japanese investments.

Japan’s Arbitration Treaties & Legislative Framework

Arbitration in Japan is conducted according to familiar international conventions. Since 1961, Japan has been a contracting state to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (New York Convention). Japan is also a signatory to the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 and has bilateral treaties with fourteen countries concerning the mutual enforcement of arbitral awards.

Arbitration awards rendered in Japan, therefore, are generally enforceable outside of Japan as demonstrated by a recent affirmance by the courts in Hong Kong of a Japanese commercial arbitral award. See Paloma Co. v. Capxon Elec. Indus. Co., [2018] HKCFI 1147 (C.F.I.). Japanese courts likewise have been respectful of arbitration awards and have shown a willingness to enforce awards rendered outside of Japan with “the same effect as a final and conclusive judgment.” Japanese Arbitration Law, Law No. 138 of 2003 (hereinafter, “JAL”), art. 45, para. 1 (Japan).

Japan’s current Arbitration Law (the “JAL”), enacted in 2004, is based on the United Nations Commission on International Trade Law Model Law on International Commercial Arbitration (1985) (UNCITRAL Model Law). Notwithstanding enactment of the JAL, parties are generally free to agree upon their own procedural rules provided that they do not conflict with substantive provisions of the JAL. JAL, art. 26, para. 1. Arbitration associations such as TOMAC, IACT, and the JCAA generally have their own procedural rules, which, in many circumstances, may be modified by party agreement.

Thus, mirroring the UNCITRAL Model Law, arbitration in Japan enjoys substantial procedural flexibility. Parties are generally free to agree on the number and selection of arbitrators. JAL, art. 16, para. 1. If the parties fail to agree, the default is three arbitrators where there are two parties to the dispute, and the court determines the number of arbitrators where there are more than two parties. JAL, art. 16.

Aside from requiring impartiality and independence from the parties, the JAL does not impose any specific technical qualifications on arbitrators. However, where the court appoints arbitrators in the absence of party agreement, the court must determine whether the arbitrators should be of a different nationality from the parties themselves. JAL, art. 17, para. 6.

Reasonable doubt concerning arbitrator impartiality and independence is one of the few specified grounds for challenging an award. JAL, art. 18, para. 1. The JAL requires arbitrators to affirmatively disclose any facts that might raise questions about their impartiality or independence. JAL, art. 18, paras. 3 & 4. To further address these concerns, the JAA published a “Code of Ethics for Arbitrators” in 2008. As of January 2019, arbitrators have an ongoing duty to assess their potential conflicts and notify the parties of any changed circumstances. Commercial Arbitration Rules, Japan Comm. Arb. Assoc. (hereinafter, “JCAA”), art. 24, para. 4 (Jan. 1, 2019),

Absent an agreement between the parties, the JAL gives arbitrators broad discretion to determine the admissibility and probative value of evidence. JAL, art. 26, para. 3. Although arbitrators themselves have no authority to compel production of evidence, obtaining their consent is a prerequisite for a party wishing to seek court assistance to compel the production of documents or testimony. JAL, art. 35, para. 2.

The JAL generally requires that the arbitral award be reduced to writing and, at least, memorialize the date and location of the arbitration and provide a statement of the reasons and bases for the award. JAL, art. 39, para. 1. A majority of the arbitrators must sign the award. Id.

The JCAA’s amended rules now prohibit dissenting arbitrators from disclosing “dissenting or individual opinion in any manner.” JCAA, art. 63. While recognizing that “differing opinions are found in authoritative articles and textbooks on whether a dissenting opinion may be disclosed in an arbitral award,” the JCAA ultimately determined that barring dissenting opinions is in the best interest of “sound and stable” dispute resolution. JCAA notes to January 1, 2019 Rules Amendments.

The JAL similarly promotes certainty of settlement during arbitration by permitting party settlements to be reduced to the form of an enforceable arbitral award. JAL, art. 38. The JCAA’s recent rules amendments likewise promote settlement by introducing the concept of “interactive arbitration.” The new rules require arbitrators, at various stages of the proceeding, to disclose their preliminary—but non-binding—views to the parties on the factual and legal issues material to resolving the dispute. JCAA, art. 56. This procedure serves the dual purposes of focusing the issues and promoting settlement.

Finally, Japan’s Foreign Lawyer Law (“JFLL”) has cracked open the door to the participation of foreign lawyers in “an international arbitration case” conducted in Japan where one or more of the parties is not a Japanese entity. Act on Special Measures Concerning the Handling of Legal Services by Foreign Lawyers, Act No. 69 of 2014 (hereinafter, “JFLL”), art. 2(xi) (Japan). Although there are unresolved ambiguities in this exception, such as whether a Japanese subsidiary of a foreign corporation qualifies as a non-Japanese entity, the JFLL expressly permits two classes of foreign lawyers to represent clients in international arbitration proceedings and intervening settlement discussions. The permitted classes include: (1) Japan-resident foreign lawyers authorized by the Ministry of Justice to advise domestic clients on the laws of their home countries, JFLL, art. 5-3, and (2) non-resident, licensed foreign lawyers who are retained in their home countries to represent a party in the Japan-based arbitration. JFLL, art. 58-2.

Aside from these qualifications, the JFLL does not impose any additional visa or travel restrictions on foreign lawyers, court reporters, interpreters, or other support staff entering the country to participate in international arbitrations. Moreover, the statutory authorization for foreign lawyer representation in an international arbitration is available without restriction as to the substantive law to be applied (Japanese law or otherwise) in resolving the underlying dispute.

Through these many developments, the Japanese government and private ADR associations are building the legal and physical infrastructure necessary to encourage not only domestic but also international parties to resolve their disputes in Japan. Faced with disputes of growing complexity and the escalating cost of traditional litigation, the world’s corporations can now look to Japan as an attractive venue for resolving conflicts with their commercial partners.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Quinn Emanuel Urquhart & Sullivan, LLP | Attorney Advertising

Written by:

Quinn Emanuel Urquhart & Sullivan, LLP

Quinn Emanuel Urquhart & Sullivan, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.