Earl Rivera-Dolera

Arbitration seated in Japan is governed by the Arbitration Act (Act No. 138 of 2003) (the ‘Arbitration Act’), which is based on the UNCITRAL Model Law on International Commercial Arbitration (1985). The Act was amended by Act No. 15 of 2023, in force on 1 April 2024, to reflect the 2006 revisions to the Model Law, in particular as regards interim measures and their enforcement, the writing requirement for arbitration agreements, the concentration of arbitration-related court business in designated courts, and the courts’ discretion to dispense with Japanese translations of certain documents.Japan, like other Model Law jurisdictions, fully embraces the principle of Kompetenz-Kompetenz: an arbitral tribunal may rule on its own jurisdiction, including on the existence or validity of the arbitration agreement (Article 23(1) of the Arbitration Act). There is no rule that the courts enjoy priority over the tribunal in deciding jurisdictional questions, and no system of internal ‘prior reporting’ within the court hierarchy before

Interim remedies in Japan—introductionInterim measures are intended to preserve a party’s rights and assets, to prevent harm or maintain the status quo, and to regulate conduct pending a decision on the merits. In international arbitration they are frequently decisive of the practical effectiveness of the process.The Japanese position is one of recent and deliberate modernisation. Arbitration seated in Japan is governed by the Arbitration Act (Act No. 138 of 2003) (the ‘Arbitration Act’), originally based on the UNCITRAL Model Law (1985). Until 1 April 2024, the Act contained only an abstract provision on interim measures and, critically, no mechanism for their enforcement, so that an interim measure depended on the parties’ voluntary compliance and was, in practice, little used.The Act was amended by Act No. 15 of 2023, in force on 1 April 2024, to align Japan with the 2006 revisions to the Model Law. The amended Act

The Japanese framework differs in important respects from common law models. Japan codified its law of foreign state immunity comparatively recently, in the Act on the Civil Jurisdiction of Japan with respect to Foreign States (Act No. 24 of 2009) (the ‘Foreign States Act’), which entered into force on 1 April 2010. The Foreign States Act closely follows the United Nations Convention on Jurisdictional Immunities of States and Their Property (2004) (‘UNCJI’), which Japan signed in January 2007 and ratified in 2009. As a consequence, the analysis under Japanese law tends to track the structure and language of UNCJI more faithfully than the common-law statutes (such as the UK State Immunity Act 1978 and Singapore’s State Immunity Act 1979) that pre-date the UNCJI.The concept of state immunity and the absence of an ‘act of state’ doctrineState immunity (or sovereign immunity) prohibits the courts of one state from asserting jurisdiction