Answer ... (a) Procedure, including evidence?
Under the Arbitration Act, the arbitral tribunal may conduct the arbitral proceeding in such manner as it finds appropriate, unless this is contrary to the parties’ agreement or violates the provisions of the Arbitration Act. The tribunal’s discretion in relation to evidence includes the power to determine:
- its admissibility;
- the necessity of examination; and
- its probative value.
An arbitral tribunal may hold oral hearings to have the parties produce evidence or state their opinions; however, if one party makes a request to hold oral hearings, the arbitral tribunal must hold the oral hearings at an appropriate stage of the arbitral proceedings.
(b) Interim relief?
Under the current Arbitration Act, an arbitral tribunal may order any party to take such interim measures as the arbitral tribunal considers necessary, unless otherwise agreed by the parties. However, such interim measures are not enforceable through the courts.
Under the amended Arbitration Act, an arbitral tribunal may order the following interim measures as specified in the Arbitration Act at the request of a party:
- preserving assets to satisfy claims;
- maintaining the current status quo of the parties;
- prohibiting any conduct that is impeding the arbitral proceedings; and
- preserving evidence for the arbitration.
Interim measures are enforceable in Japan once the court has ordered their enforcement (Articles 47 to 49 of the amended Arbitration Act).
(c) Parties which do not comply with its orders?
Order to take interim measures: As described in question 8.6(b), interim measures are not enforceable under the current Arbitration Act. Thus, the arbitral tribunal can only expect voluntary performance by the parties.
On the other hand, the court will be empowered to recognise and enforce interim measures issued by an arbitral tribunal under the amended Arbitration Act (see question 8.6(b)).
Request to make statements, testify or submit documents to a party or third party: The arbitral tribunal may, at its discretion, request a party or third party to make statements, testify or submit documents. If a party refuses to appear or testify without justifiable grounds, the arbitral tribunal may take this into account in rendering an arbitral award.
(d) Issuing partial final awards?
The arbitral tribunal may issue a partial final award in accordance with the agreement of the parties or the rules of the arbitral proceedings. A partial award which does not terminate the arbitral proceedings does not constitute an ‘arbitral award’ under the Arbitration Act, which is subject to a petition to set aside. A partial award, however, will qualify as an ‘arbitral award’ if the tribunal makes a final decision on such partial claim. The partial dismissal of a claim or defence based on the expeditious determination of manifestly unmeritorious claims or defences (summary judgment procedure) as set forth in Paragraphs 109 to 114 of the Guidance Note to the International Chamber of Commerce Arbitration Rules (Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration – 1 January 2021) will likely be considered a partial final award and will likely be subject to the setting aside of the arbitral award.
(e) The remedies it can grant in a final award?
There is no provision in the Arbitration Act regarding the remedies that a tribunal can grant in a final award. This is left to the tribunal’s discretion, unless:
- otherwise agreed by the parties (including the institutional arbitration rules which are incorporated into the parties’ agreement); or
- such remedies are in violation of the mandatary laws of Japan (eg, public laws or administrative laws).
An action seeking revocation of a resolution at a shareholders’ meeting or invalidation of a new share issue cannot be subject to arbitration because:
- such disputes cannot be settled between the parties; and
- the admission of such actions would be effective against third parties.
In IP disputes, infringement injunction claims and damage claims may be subject to arbitration. However, since the authority to determine the validity of a patent rests exclusively with the Japan Patent Office, disputes concerning the validity of a patent cannot be subject to arbitration; although an arbitral tribunal may determine the validity of a patent as a precondition to a patent infringement suit.
(f) Interest?
Interest is determined in accordance with the governing law of the substance of the case.