JAPAN: An Introduction to Dispute Resolution: Domestic

Litigation Overview and Recent Trends in Japan 

Career judges

In Japan, judges do not start out as practising lawyers who later become judges; instead, they are “career judges” who begin their careers as associate judges after completing the requisite exam and training, and they typically spend their whole careers as judges. Given this background, judges in Japan are generally reliable in relation to technical legal issues, and judgments are reasonably predictable. Moreover, judges in Japan do not exhibit discriminatory treatment towards non-Japanese parties.

Procedure

Japanese legal proceedings, even at the district court, involve the exchange of a series of legal briefs that contain factual and legal arguments accompanied by documentary evidence. The court reviews the briefs and evidence until the case has been narrowed down to the key issues in dispute. The case then proceeds to the “trial” phase of the proceedings, which is known as witness examination. Witness examination is relatively short, normally requiring only one or two hearings and with each side typically calling only a couple of key witnesses. After witness examination, the parties will file their final, comprehensive briefs, and the court proceeds to issuing its judgment. District court judgments can be appealed to the high courts, where the cases are reviewed de novo, and high court judgments can be appealed to the Supreme Court (although the Supreme Court must agree to hear a case, which is rare). Another uncommon feature is that each party is responsible for bearing its own attorneys’ fees, and punitive damages are not allowed except in extreme cases. Also, as a general rule of thumb, a period of about one to two years is needed to reach a judgment at the district court level.

Privilege and evidence

In practice, there is no concept of privilege in Japan, but the absence of privilege raises a few practical concerns since there are only limited means to compel counterparties and third parties to produce documents in court. Japan does not have pre-trial discovery, and there are no pre-trial depositions. Technically speaking, parties can apply for a court order to compel counterparties and third parties to produce documents. The requesting party needs to specify the title of the document and provide a summary thereof, which means that opposing parties cannot go on “fishing expeditions” in the hopes of finding relevant evidence. In addition, there is no hearsay rule applicable to civil litigation, so any document can be submitted to court as evidence.

Settlement

The judge is also empowered by law to encourage the parties to reach settlement at any stage, and it is relatively common for cases to end by settling at the district court (often before witness examination) or at the high court. The judges tend to have a lot of power to encourage the parties to settle, since the same judge will be the one to render the judgment if the parties do not settle. Some judges even go as far as disclosing their views on the merits of the case when encouraging the parties to reach settlement.

Specialised courts

Career judges in Japan are also expected to be “generalists” in charge of all types of litigations, which can extend from a litigation between individual neighbours about their land boundary to litigation between a company and its IT vendor about the construction of its IT system. However, these days, highly complicated issues are being brought in front of the court, and there has been a trend within the judiciary whereby some judges are expected to be “experts” on specific types of litigation. For example, Tokyo District Court has specific divisions for employment-related litigation, medical malpractice litigation, construction-related litigation and administrative litigation, and these types of cases are handled only by the judges in these divisions. In addition, Tokyo District Court opened its new “Business Court” courthouse in 2022, which is in charge of intellectual property litigations, litigation related to the Companies Act (eg, litigation seeking revocation of a resolution of a shareholders’ meeting), etc.

Expert participation

There is a growing trend towards experts outside of court participating in litigation to help the court understand the issues and make the judgment more reliable and persuasive, upon request from the court. As a typical example in medical malpractice litigation, it is usual for the court to ask someone who is familiar with the specific surgery that is at issue in the case to give his/her opinion about the issue. For employment-related matters, there is a special procedure called a labour tribunal proceeding in which one judge and two other lay judges (one from the union side and the other from the employer side, who is familiar with employment issues) to make a judgment on the case.

Digitalisation of court proceedings 

Japan has been very slow in digitalising its court proceedings. During the COVID-19 pandemic, courts started using web conferences through Microsoft Teams for some procedures, but the proceedings remained largely paper-based and in person. For example, legal briefs and documentary evidence are still submitted by fax. To allow for further digitalisation of court procedures, the Code of Civil Procedures was amended in May 2022 to allow for the gradual introduction of further digitalisation, to be fully implemented by May 2026. After March 2024, court hearings can be held via web conferences. Once fully implemented, some court procedures will become more streamlined, such as being able to file legal actions and submit legal briefs online, conducting service of process via email if certain conditions are met and accessing court records online. Once fully implemented, the Japanese court system should be more accessible, speedy and efficient.