SPECIAL REPORT 27
TOKYO
TOKYO IS SOMETHING OF AN ANOMALY AS AN ARBITRATION CENTRE IN ASIA, GIVEN THAT ARBITRATION IS NOT PARTICULARLY COMMON AS A DISPUTE RESOLUTION MECHANISM IN JAPAN. REPORTS SUGGEST THAT, ON AVERAGE THE JAPANESE COMMERCIAL ARBITRATION ASSOCIATION (JCAA) – JAPAN’S ONLY INTERNATIONAL ARBITRATION PROVIDER – GETS BETWEEN 15 AND 20 CASES A YEAR, ONLY A HANDFUL OF WHICH ARE INTERNATIONAL. Nevertheless, on some analyses Tokyo is an important regional arbitration centre – 7% chose it as a preferred arbitral seat in the Queen Mary/ White & Case 2010 International Arbitration Survey – though this may simply have been because of a high number of Japanese respondents. The Japanese Arbitration Law (Law No 138 of 2003) governs arbitration proceedings with their seat in Japan, and is based on the Model Law. The Japanese Courts have consistently adopted a pro-arbitration attitude with respect to the enforcement of awards and have, for example, narrowly interpreted ‘public policy’ in light of the purposes of the Arbitration Law. In terms of legal infrastructure, therefore, Tokyo is in a comparatively strong position.
Anecdotally, though, Japan is not seen as a go-to venue for international arbitration. Whether this is to do – as some have suggested – with an approach to business which dislikes confrontational processes or simply a combination of soft factors such as the lack of an established bar of arbitration practitioners and a perception that Japan is a high cost venue is not clear. Competition in Asia between arbitral seats is fierce. Tokyo is unlikely to grow in terms of popularity until arbitration takes off as a form of dispute resolution in Japan, and it does more to market itself internationally as an arbitration centre. The annual International Bar Association conference took place in Tokyo in October 2014 which, no doubt, would have contributed to Japan’s profile as an arbitration centre. But it will take more than this. There will need to be further initiatives to attract international arbitration consumers to Tokyo. Some examples might be the setting up of specialised hearing rooms (such as Maxwell Chambers in Singapore, or SIDRC in Seoul), perhaps with Government backing, and the more active involvement of arbitral institutions outside Japan (such as the ICC), which government initiatives could support.
COMPETITION IN ASIA BETWEEN ARBITRAL SEATS IS FIERCE. TOKYO IS UNLIKELY TO GROW IN TERMS OF POPULARITY UNTIL ARBITRATION TAKES OFF AS A FORM OF DISPUTE RESOLUTION IN JAPAN, AND IT DOES MORE TO MARKET ITSELF INTERNATIONALLY AS AN ARBITRATION CENTRE.
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