I spent some of my honeymoon in a Tokyo courtroom. Thankfully not as a defendant, I was there to watch how the justice system works in one of the biggest and most vibrant cities in the world. I saw a lot of similarities to a New York courtroom, but I knew I was not getting a full picture since I did not understand a word anyone was saying.
I was still curious about dispute resolution in Japan, so I was very lucky to speak with Hiroyuki Kanae, Kenji Hirooka and Emika Sato, attorneys at Anderson Mori & Tomotsune in Tokyo, to learn more about their work and the Japanese legal system.
Why should you continue reading this post about litigation in Japan?
You have watched Japanese movies and watched Japanese television and read Japanese poetry and seen Japanese art, but are still unsure where Japanese lawyers do online legal research.
You are interested in some precise statistics about the frequency of litigation settlements.
You want to read about one of the world’s newest commercial courts.
Kenji Hirooka and Hiroyuki Kanae are both partners at Anderson Mori & Tomotsune in Tokyo. This interview has been lightly edited. These answers in this interview are for information purposes only and do not constitute legal advice. The answers in this interview are the personal views of Mr. Hirooka, Mr. Kanae, and Ms. Sato in response to the questions presented, and those comments are not the opinions of the law firm they belong to.
Can you tell me about the kinds of disputes you handle in your legal practice?
Our firm handles a variety of dispute matters, ranging from contract disputes and fraud cases to employment dispute matters.
What type of clients do you generally represent in disputes?
Our clients in dispute matters are mainly corporations, including Japanese corporations and corporations from various jurisdictions. Many of them are large multinational companies.
Besides Microsoft Office, what software do you use in your practice?
In addition to Microsoft Office, Microsoft Teams is used to attend the court procedures electronically.
Also, for the submission of documents to the court, a software called “mints” has been used from April 2022. The mints software was developed by the Japanese court itself as an online system for submitting civil litigation related documents to the court electronically.
What books and websites do you use for legal research?
Image credit: https://en.wikipedia.org/wiki/Supreme_Court_of_Japan#/media/File:Supreme_Court_of_Japan_2010.jpg
Do you electronically file pleadings with the court? Or must you send paper copies of them to the courthouse?
The Code of Civil Procedure law was amended to increase the degree to which litigants can participate in lawsuits online. Parties can attend certain limited court hearings over Internet video (Microsoft Teams) and submit legal briefs electronically. However, we do not expect the system to be fully implemented until 2026.
I understand that Tokyo has a relatively new commercial court. How do the procedures in that court differ from other Japanese civil courts?
The business court opened in 2022 in Tokyo. The business court has three departments, i.e., the (i) corporate department, (ii) intellectual property department, and (iii) restructuring and bankruptcy department. The business court specializes in these three specific areas. In terms of procedures, the procedures of these courts do not generally differ from other Japanese civil courts.
Who decides the facts in a commercial case? Is it a judge or a jury?
Judges decide the facts and the laws in commercial cases.
In Japan, the lay judge system (saibanin-seido) was introduced in 2009. Under the lay judge system, in general, six citizens and three professional judges are jointly in charge of certain serious criminal cases held at the district court level. In such roles, regular citizens are involved in deciding the facts and degree of punishment in serious criminal cases together with the judges under such lay judge system, and legal issues are still handled by professional judges. Citizens who may be called to the court to join the proceedings are randomly selected among those who have the right to vote for members of the House of Representatives in Japan.
Generally speaking, how many pages are the complaints or initial pleadings you see in your work?
Thirty to forty pages may be the normal length of complaints or initial pleadings we see in our work. This largely depends on the type of case.
Court documents can be reviewed only when a person makes a request to review court documents in writing by identifying a specific case number. These court documents are not generally available online. On the other hand, major court judgements can be searched online at the website of the Supreme Court of Japan at: https://www.courts.go.jp/app/hanrei_jp/search1.
Generally speaking, how long does it take for a case to go from complaint to judgment?
According to the statistics published by the General Secretariat of the Supreme Court of Japan in August 2023, at the district court level, among all the cases which ended in 2022, 45.8% of the cases ended with judgments, but 32.8% of the cases ended with settlement. For the cases which ended with judgments, the average length of time for the first instance civil litigation was 14.6 months in 2022. For the cases which ended with settlement for the first instance civil litigation, it was 10.5 months in 2022.
Generally speaking, how is evidence exchanged between the parties before trial? Do you get to interview the opposing witnesses before the trial?
After a plaintiff files a complaint, the defendant is required to appear in court to respond to the allegations. At that hearing and subsequent hearings, the court decides which evidence it will need for the decision of the issues in dispute. For the most part, each side must submit evidence that it gathered itself.
Witnesses are also called to make statements in front of the judge presiding over the case.
If you win, does the other side reimburse your attorneys’ fees?
In Japanese litigation, the court generally does not order the losing party to pay the attorneys’ fees of the winning party.
I was fortunate enough to watch a Japanese court hearing. Are Japanese courts generally open to the public? Can ordinary people watch a commercial trial?
Yes, they are open to the public. However, not all hearings take place in courtrooms that are open to the public. For example, the preparatory hearings in which the parties submit documents to the court at the initial stage of proceedings could take place privately.
Do you believe that Japanese courts have a particular strength for resolving commercial disputes? How about a weakness? What are they?
We believe that Japanese courts have strength in terms of experienced judges, and accuracy and efficiency of the proceedings, which would lead to the credibility of the outcome of the proceedings.
On the other hand, a weakness of the Japanese courts is that the Japanese language is required to be used in the proceedings, and enforcement of the judgements may be limited outside Japan.
How often do you go to the courthouse?
It is common that court hearings are held online, so we do not frequently go to the courthouse. For example, it may be common to go several times in a month.
When you are there, do you need to wear a special robe or wig?
There is no special attire for attorneys at the courthouse, and many just wear business attire.