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Japan: Foreign Lawyers authorized to represent clients in International Arbitration and International Mediation

Veröffentlicht von Dr. Andreas Kaiser am 05.08.2020

1. Before Amendment: Representation in International Arbitration Cases

Prior to the amendment a Registered Foreign Lawyer, meaning a person who has been approved by the Ministry of Justice to provide legal services based on the laws of the jurisdiction of his/her primary qualification and obtained registration in the roll of registered foreign lawyers, was permitted - notwithstanding other practice restrictions contained in the Foreign Lawyers Act, to represent clients regarding the procedures for an International Arbitration Case. This authority also included representation in any procedures for settlement resulting from an International Arbitration Case.
 
In addition a Foreign Lawyer, meaning a person whose professional duties are to provide legal services as a practice in a foreign jurisdiction and who is equivalent to a Japanese Attorney-at-Law, and is engaged in legal services on the basis of being qualified to become the Foreign Lawyer in a foreign jurisdiction (excluding a person who is employed in and is providing services in Japan, based on their knowledge concerning foreign laws) could, notwithstanding the prohibition of the provision of legal services by non-attorneys pursuant to the Attorney Act, represent in the procedures for an International Arbitration Case which they have been requested to undertake or undertook in the foreign jurisdiction.
 
An International Arbitration Case has been defined as a civil arbitration case which is conducted in Japan and in which all or some of the parties are persons who have an address or a principal office or head office in a Foreign Jurisdiction. There was no mentioning of representing in International Mediation Cases in Japan by Registered Foreign Lawyers or Foreign Lawyers in the Foreign Lawyers Act before the recent amendment.

2. After Amendment: Representation in International Arbitration Cases, etc. and International Mediation Cases

Pursuant to Article 5-3 of the Foreign Lawyers Act a Registered Foreign Lawyer may, - notwithstanding the practice restrictions contained in the Foreign Lawyers Act, represent in the following proceedings:
  1. International Arbitration Case (Kokusai chūsai jiken) proceedings - including settlements (wakai) attempted by arbitrators during proceedings, or implemented between the relevant parties during proceedings - and mediation (chōtei) proceedings for civil disputes which are the subject of an arbitration agreement - including conciliation (assen) proceedings; and limited to those implemented by private businesses - (referred to as "International Arbitration Case Proceedings, etc."); and
  2. International Mediation Case (Kokusai chōtei jiken) proceedings (limited to those implemented by private businesses).
 
Pursuant to Article 58-2 Foreign Lawyers Act a person who is a Foreign Lawyer (excluding a person who is a Registered Foreign Lawyer) and is engaged in legal services on the basis of being qualified to become the Foreign Lawyer in a foreign jurisdiction (excluding a person who is employed in and is providing services in Japan, based on their knowledge concerning foreign laws) may, notwithstanding the prohibition to provide legal services by non-lawyers of the Attorney Act, represent in International Arbitration Case Proceedings, etc. and International Mediation Case Proceedings which they have been requested to undertake or undertook in the foreign jurisdiction.

3. After Amendment: Expanded definition of International Arbitration Case

The amended Art. 2 no.11 Foreign Lawyers Act defines an International Arbitration Case as a civil arbitration case, which falls under any of the following:
  • all or some of the parties are persons who have an address or a principal office or head office in a foreign jurisdiction (including cases in which persons who hold voting shares of more than fifty percent of the number of issued voting shares of all or some of the parties, or have equity interest of more than fifty percent of the amount of equity which all or some of the parties have, or those prescribed by Order of the Ministry of Justice as equivalent to those persons, are those who have an address or a principal office or head office in a foreign jurisdiction);
  • the law which the arbitral tribunal should comply with in making an arbitral award (limited to the law as provided by the agreement of relevant parties) is not Japanese law; and
  • the place of arbitration is in a country other than Japan.
Hence, the links that make a civil arbitration case an “international” one have been expanded leading to a wider ambit of international arbitration cases that can be handled in Japan by Registered Foreign Lawyers and Foreign Lawyers alike.

4. After Amendment: Definition of International Mediation Case 

Newly introduced in Art. 2 No. 11-2 Foreign Lawyers Act is a definition of an International Mediation Case (Kokusai chōtei jiken), that is a civil mediation case (including civil conciliation (assen) cases; and limited to cases on disputes relating to civil contracts or transactions in which all of the parties are corporations, other associations or foundations, or individuals who have become parties to those civil contracts or transactions as a business or for a business) which falls under any of the following:
  • all or some of the parties to the case have an address or a principal office or head office in a foreign jurisdiction (including cases in which persons who hold voting shares of more than fifty percent of the number of issued voting shares of all or some of the parties or have equity interest of more than fifty percent of the number of equity which all or some of the parties have, or those prescribed by Order of the Ministry of Justice as equivalent to those persons, are those who have an address or a principal office or head office in a foreign jurisdiction); and
  • the law which is to apply to the formation and effect of a claim arising from disputes on civil contracts or transactions (limited to the law as provided by the agreement of relevant parties) is not Japanese law.
Hence, foreign and Japanese clients from now on have additional options to use the services of Registered Foreign Lawyers and Foreign Lawyers in International Mediation Procedure Cases.
 
Please contact KaiserLegal if you need representation in an international arbitration or international mediation case. We offer assistance in drafting arbitration or mediation agreements and help clients to resolve a dispute.
 
*A translation of the complete Foreign Lawyers Act can be found at http://www.japaneselawtranslation.go.jp/

Zuletzt geändert am: 05.08.2020 um 19:33

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