Nicholas Lingard and Toshiki Yashima, Freshfields Bruckhaus Deringer LLP

This is an extract from the first edition of GAR’s The Guide to Challenging and Enforcing Arbitration Awards. The whole publication is available here. 

Applicable requirements as to the form of arbitral awards

Applicable legislation as to the form of awards

1 Must an award take any particular form (e.g., in writing, signed, dated, place, the need for reasons, delivery)?

Japanese law is similar to what is found in the UNCITRAL Model Law. According to Article 39 of the Arbitration Act, an award must be in writing, and must be prepared and signed by the arbitrators making the award, with the exception that signatures of a majority of the arbitral tribunal can suffice if the award states the reasons for any omitted signatures. The default rule is that the award must set out its reasoning, but the parties may agree otherwise. The award must be dated and indicate the place of arbitration. Signed copies of the award shall be sent to all parties by the arbitral tribunal.

Applicable procedural law for recourse against an award

Applicable legislation governing recourse against an award

2 Are there provisions governing modification, clarification or correction of an award?

With respect to correction or modification of awards, Japanese law largely corresponds to the UNCITRAL Model Law. Under Article 41 of the Arbitration Act, a party may request corrections of clerical or similar errors within 30 days of the party’s receipt of the award unless the parties agree otherwise. An arbitral tribunal may make such corrections on its own initiative.

Appeals from an award

3 May an award be appealed to or set aside by the courts? If so, on what grounds and what procedures? What are the differences between appeals and applications for set-aside?

Under Article 44 of the Arbitration Act, a Japanese court may set aside an arbitral award on any of the following grounds: (1) limited capacity of a party; (2) incompatibility with the law applicable to the parties’ agreement to arbitrate; (3) a petitioner did not receive the notice required under Japanese law or the parties’ agreement otherwise in the procedure of appointing arbitrators or in the arbitration proceedings; (4) a petitioner was unable to defend himself or herself in the arbitration proceedings; (5) the award has exceeded the scope of the arbitration agreement or of the claims made by the parties; (6) the composition of the arbitral tribunal was in violation of Japanese law or the parties’ agreement; (7) the dispute was not arbitrable under Japanese law; or (8) the award is against the public policy of Japan. With respect to grounds (1) to (6), the party seeking set-aside bears the burden of proving the grounds exist. With respect to grounds (7) and (8), the court may order the award set aside even if the party seeking set-aside has not met its burden. If the basis for set-aside would be that the award exceeded the scope of the parties’ arbitration agreement or the claims presented, partial set-aside is permitted if the matters exceeding scope can be separated from the matters that are within scope.

Applicable procedural law for recognition and enforcement of arbitral awards

Applicable legislation for recognition and enforcement

4 What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?

Japan is a party to the New York and ICSID Conventions, and has bilateral treaties with various states, including the United States, the United Kingdom and China. Under Japanese law, the Arbitration Act provides for automatic recognition of arbitral awards in Japan and stipulates detailed procedures for their enforcement. The Civil Execution Act stipulates the procedures for the attachment of assets following a decision to enforce an arbitral award (see question 28).

The New York Convention

5 Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under Article I(3) of the Convention?

The New York Convention came into force in Japan on 18 September 1961. Japan has made only the reciprocity declaration under the first part of Article I(3) of the Convention.

Recognition proceedings

Competent court

6 Which court has jurisdiction over an application for recognition and enforcement of arbitral awards?

Both domestic and foreign arbitral awards are recognised automatically in Japan without the need to commence court proceedings. Japanese district courts have jurisdiction over applications for enforcement of both domestic and foreign arbitral awards. If, during enforcement proceedings, a court finds that one or more grounds exist for refusing to enforce an award (see question 13), the court may dismiss the enforcement application (see question 15).

Jurisdictional issues

7 What are the requirements for the court to have jurisdiction over an application for recognition and enforcement of arbitral awards? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?

Article 5, Paragraph 1 and Article 46, Paragraph 4 of the Arbitration Act provide that the district courts have jurisdiction over enforcement applications if the parties agree; if the court has jurisdiction over the place of arbitration (limited to cases where an area within the jurisdictional district of the relevant district court is determined to be the place of arbitration); if the court has jurisdiction where the defendant is based; or if the court has jurisdiction in the location of the subject matter of the claim, or if the obligor has property that can be seized.

The applicant therefore does not necessarily need to identify assets within the jurisdiction of the court to bring an application for enforcement.

Form of the recognition proceedings

8 Are the recognition proceedings in your jurisdiction adversarial or ex parte?

As stated in question 6, both domestic and foreign arbitral awards are recognised automatically in Japan without the need to commence court proceedings. Therefore, there is no separate recognition proceeding under Japanese law, and a party seeking enforcement may do so directly.

Enforcement proceedings are adversarial (Article 46, Paragraph 10 and Article 44, Paragraph 5 of the Arbitration Act).

Form of application and required documentation

9 What documentation is required to obtain the recognition of an arbitral award?

As stated in question 6, both domestic and foreign arbitral awards are recognised automatically in Japan without the need to commence court proceedings; there is therefore no separate recognition proceeding under Japanese law.

To commence enforcement proceedings, as set out in Article 46, Paragraph 2 of the Arbitration Act, an applicant must submit the following documents: a certified copy of the arbitral award; and a Japanese translation of the award (unless the award was issued in Japanese).

Translation of required documentation

10 If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with an application to obtain recognition of an arbitral award? If yes, in what form must the translation be?

It is necessary to obtain translations of the required documentation. However, it is not required that translations should be certified.

Other practical requirements

11 What are the other practical requirements relating to recognition and enforcement of arbitral awards?

A fee of ¥4,000 is required to file a petition for enforcement (Article 3, Paragraph 1 and Attachment 1 of the Act on Costs of Civil Procedure).

Recognition of interim or partial awards

12 Do courts recognise and enforce partial or interim awards?

Partial awards are recognised and are capable of being enforced.

Tribunals seated in Japan can order any party to take any interim or provisional measures the tribunal considers necessary (Article 24, Paragraph 1 of the Arbitration Act). However, such orders cannot be enforced in the courts against the parties.

There is no clear rule or precedent on the treatment of interim awards issued by arbitral tribunals outside Japan.

Grounds for refusing recognition of an award

13 What are the grounds on which an award may be refused recognition? Are the grounds applied by the courts different from the ones provided under Article V of the Convention?

Article 45, Paragraph 2 of the Arbitration Act lists the following grounds for which the court may refuse enforcement of arbitral awards. They reflect the grounds in Article V of the Convention:

  • the award is not valid owing to the limited capacity of a party;
  • the award is not valid on grounds other than the limited capacity of a party pursuant to the laws and regulations designated by the agreement of the parties as those that should be applied to the arbitration agreement (or, if no such designation has been made, the laws and regulations of the country to which the place of arbitration belongs);
  • the party did not receive the notice required under the laws and regulations of the country to which the place of arbitration belongs (or if the parties have reached an agreement on the matters concerning the provisions unrelated to public policy in those laws and regulations, that other agreement) in the procedure of appointing arbitrators or in the arbitration procedure;
  • the party was unable to present a defence in the arbitration;
  • the arbitral award contains a decision on matters beyond the scope of the arbitration agreement, or of the application presented in the arbitration procedure;
  • the composition of the arbitral tribunal or the arbitration procedure is in violation of the laws and regulations of the country to which the place of arbitration belongs (or if the parties have reached an agreement on the matters concerning the provisions unrelated to public policy in those laws and regulations, that other agreement);
  • the arbitral award is not final and binding, or has been set aside, or its effect has been suspended by a judicial body of the country to which the place of arbitration belongs (or if the laws and regulations applied to the arbitration procedure are laws and regulations of a country other than the country to which the place of arbitration belongs, that other country) pursuant to the laws and regulations of that country;
  • the applications presented in the arbitration procedure are related to a dispute that cannot be the subject matter of an arbitration agreement pursuant to the provisions of Japanese laws and regulations; or
  • the content of the arbitral award is against public policy in Japan.

If a party asserts that one or more grounds exist for refusing recognition of the award, this will be considered by the court during the enforcement proceedings (Article 46, Paragraph 8 of the Arbitration Act). A party seeking the dismissal of an enforcement application bears the burden of proving the existence of the requisite ground or grounds. In addition, the court may of its own volition make a finding that the award should not be recognised. In this situation, however, the court may only consider the final two grounds listed above.

Effect of a decision recognising an award

14 What is the effect of a decision recognising an award in your jurisdiction? Is it immediately enforceable? What challenges are available against a decision recognising an arbitral award in your jurisdiction?

As stated in question 6, arbitral awards are recognised automatically in Japan, and so there is no separate procedure as such for challenging the recognition of an award.

An application for enforcement should be made to the relevant district court (Article 46, Paragraph 1 of the Arbitration Act). Enforcement proceedings are adversarial (Article 46, Paragraph 10 and Article 44, Paragraph 5 of the Arbitration Act).

Either party may challenge an enforcement decision within two weeks of the date of notification of the decision (Article 7 of the Arbitration Act). The challenge will be determined by the High Court, which will not give any deference to the district court’s findings.

Decisions refusing to recognise an award

15 What challenges are available against a decision refusing to recognise an arbitral award in your jurisdiction?

If, during enforcement proceedings, the court finds that one or more grounds exist for refusing to enforce an award (see question 13), the court may dismiss the enforcement application (see question 18). If the court dismisses the application, the party seeking enforcement can challenge the dismissal within two weeks of notification of the decision (see question 14).

Stay of recognition or enforcement proceedings pending annulment proceedings

16 Will the courts adjourn the recognition or enforcement proceedings pending the outcome of annulment proceedings at the seat of the arbitration? What trends, if any, are suggested by recent decisions? What are the factors considered by courts to adjourn recognition or enforcement?

If an application for setting aside an arbitral award, or for the suspension of the effect of an award, has been made to the judicial body at the seat of the arbitration, the court may suspend the enforcement proceedings in Japan (Article 46, Paragraph 3 of the Arbitration Act). There are no publicly available precedents regarding the suspension of enforcement proceedings.

Security

17 If the courts adjourn the recognition or enforcement proceedings pending the annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security? What are the factors considered by courts to order security? Based on recent case law, what are the form and amount of the security to be posted by the party resisting enforcement?

The court may order a defendant to provide security upon the request of the enforcement applicant (Article 46, Paragraph 3 of the Arbitration Act). The Act does not stipulate any particular forms of , or criteria for the amount of , security; neither does it set out any particular standard the court must apply, so the court will exercise its own discretion.

Recognition or enforcement of an award set aside at the seat

18 Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? If an award is set aside after the decision recognising the award has been issued, what challenges are available against this decision?

The Arbitration Act stipulates that the court may dismiss enforcement proceedings if it considers that grounds exist for refusing enforcement, including when an award has been set aside at the seat of the arbitration. We are not aware of any publicly reported cases in Japan that have considered this issue.

If an award is set aside after the court issues an enforcement order, a defendant may challenge the enforcement decision within two weeks of the date of notification of the order (Article 7 of the Arbitration Act and see question 14). If, however, the award is set aside after the two-week period, there is no particular provision under Japanese law that provides for challenging the enforcement order. However, it may be possible to challenge the decision by filing a petition under the Civil Execution Act, such as an action to oppose the execution of the order (Article 35, Paragraph 1 of the Civil Execution Act).

Service

Service in your jurisdiction

19 What is the applicable procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction?

Judicial documents

There are two ways to provide documents to a defendant under the Civil Procedure Law and the Rules of Civil Procedure: service and sending.

Service of documents can be categorised as (1) service by personal delivery (Article 101 of the Civil Procedure Law); (2) in the event that (1) is unsuccessful, service by registered mail (unlike (1), service by registered mail is deemed to be effected at the time of sending, regardless of whether the defendant actually receives the documents (Article 107 of the Civil Procedure Law)); or (3) if neither (1) or (2) are successful, service by publication (in which a clerk of the court posts a notice in the posting area of the court, stating that the documents are in the possession of the court clerk and can be delivered at any time to the recipient).

Service of documents is required to be conducted by the court in the case of important documents for which receipt by the defendant is considered absolutely essential (e.g., petitions, petitions to appeal and the filing of final appeals).

Some documents (including written answers, briefs and documents stating an offer of evidence) are required to be sent directly to the defendant instead of involving the court. The Rules of Civil Procedure stipulate that a party may send documents directly to the counterparty in some cases. For example, if a party submits documentary evidence to a counterparty and requests examination of that evidence, the party may directly send to the counterparty a copy of the documents, with a description of what the documents evince.

Extrajudicial documents

There is no particular provision under Japanese law governing the service of extrajudicial documents.

Service out of your jurisdiction

20 What is the applicable procedure for service of extrajudicial and judicial documents to a defendant out of your jurisdiction?

Judicial documents

For service by the court, several methods of service are available; which of those methods is used will depend on the terms of the relevant treaty between Japan and the country in which the defendant is domiciled.

There are three main methods of service: (1)a request is made to the related foreign authorities to serve the documents; (2) the documents are served via the Japanese consulate in that country; or (3) a request is made to the courts of the foreign country to effect service of the documents.

If there is no treaty, a party must make a request to the country in which the defendant is domiciled to serve the documents.

Extrajudicial documents

There is no particular treaty or provision governing the service of extrajudicial documents.

Identification of assets

Asset databases

21 Are there any databases or publicly available registers allowing the identification of an award debtor’s assets within your jurisdiction?

There are no databases or publicly available registers as such that allow applicants to identify a defendant’s assets in Japan. Although real estate property and motor vehicle registers exist, applicants are unable to search them using the defendant’s name alone; more specific information would be required, such as addresses for the properties or registration numbers of motor vehicles.

Information available through judicial proceedings

22 Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?

Yes, such proceedings exist by virtue of Article 196 et seq. of the Civil Execution Act. Upon obtaining an enforcement order from the court, an applicant is able to apply for a property disclosure order, which requires the defendant to submit a list of assets held in Japan. Following submission of the list, the defendant is required to attend court to provide an explanation as to the status of those assets, and answer any questions from the court or the applicant. However, these proceedings are rarely beneficial for applicants because of the frequent failure of defendants to turn up at court.

Enforcement proceedings

Availability of interim measures

23 Are interim measures against assets available in your jurisdiction? May award creditors apply such interim measures against assets owned by a sovereign state?

There are three types of interim measures available under the Civil Provisional Remedies Act:

  • if the right to be preserved is a monetary claim, the court may, upon the request of a party, issue an order for the provisional seizure of specific property (Article 20, Paragraph 1 of the Civil Provisional Remedies Act);
  • if the right to be preserved is not a monetary claim, the court may, upon the request of a party, issue an order for provisional disposition against the property in dispute (Article 23, Paragraph 1 of the Civil Provisional Remedies Act); and
  • if there is a legal right to be preserved, the court may, upon the request of a party, issue an order of provisional disposition that determines the provisional status of the relationship of the rights in dispute (Article 23, Paragraph 2 of the Civil Provisional Remedies Act).

In relation to interim measures against assets owned by a sovereign state, in general, states are immune from enforcement. Therefore, it is impossible to apply for an interim measures order against assets owned by a sovereign state unless the state has otherwise expressly consented to it not being immune from jurisdiction (Article 17, Paragraph 1, Item 2 of the Act on the Civil Jurisdiction of Japan with respect to a Foreign State, etc., and Article 19, Item (a)(i) of the Convention on Jurisdictional Immunities of States and Their Property (the UN Convention)). However, it is possible to apply for an interim measures order against assets owned by state-run entities, unless the entity has been granted the right to exercise sovereign power (e.g., a central bank) (Article 2, Paragraph 1, Item 3 of the Act on the Civil Jurisdiction of Japan with respect to a Foreign State, etc.).

Procedure for interim measures

24 What is the procedure to apply interim measures against assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before applying interim measures? If yes, are such proceedings ex parte?

An applicant seeking interim measures must file an application that stipulates the applicant’s requests, the rights the applicant wishes to preserve, and the need to preserve those rights. The court will then conduct an examination of the rights the applicant wishes to preserve, and the need to preserve those rights. Although the court generally meets only with the applicant (i.e., ex parte), the court may meet with the defendant if the case is complicated or there would be a substantial impact on the defendant.

The interim measures appropriate in a particular situation will depend on the rights the applicant wishes to preserve, and the purpose for seeking the interim measures. For example, if an applicant seeks to preserve a monetary claim, the interim measure available is an order prohibiting the disposal or otherwise encumbering the defendant’s property.

There is no requirement to obtain court authorisation before applying such measures.

Interim measures against immovable property

25 What is the procedure for interim measures against immovable property within your jurisdiction?

If the right to be preserved is a claim for money, the applicant must petition the relevant court to issue an order for the provisional seizure of specific immovable property. This proceeding is conducted ex parte. Although the court generally meets only with the applicant, the court may, at its discretion, call the defendant for examination (Article 7 of the Civil Provisional Remedies Act and Article 87, Paragraph 2 of the Code of Civil Procedure). The court will issue an order for provisional seizure of specific property if ‘compulsory execution for the monetary claim is likely to be impossible or extremely difficult’ (Article 20, Paragraph 1 of the Civil Provisional Remedies Act).

If the right to be preserved is a claim for the delivery of immovable property, the applicant must petition the relevant court to issue an order for the provisional disposition of the immovable property in dispute. This proceeding is conducted ex parte and proceeds on a paper only; however, the court may, at its discretion, call the defendant for examination (Article 7 of the Civil Provisional Remedies Act and Article 87, Paragraph 2 of the Code of Civil Procedure). The court will issue the order if ‘there is a likelihood that the party’s exercise of its right will be impossible or extremely difficult due to any changes to the existing state of such subject property’ (Article 23, Paragraph 1 of the Civil Provisional Remedies Act).

Upon issuing an order for the provisional seizure of , or provisional disposition against, immovable property, in general, the court will order the applicant to offer security for the order (Article 14 of the Civil Provisional Remedies Act). There are no statutory rules governing the amount of the security, but the amount can be estimated to some extent based on precedents.

Interim measures against movable property

26 What is the procedure for interim measures against movable property within your jurisdiction?

The procedure for interim measures against movable property is largely the same as that stated in question 24, except that an order for provisional seizure or provisional disposition with regard to movable property need not list all items of movable property individually (Article 21 of the Civil Provisional Remedies Act).

Interim measures against intangible property

27 What is the procedure for interim measures against intangible property within your jurisdiction?

The procedure for interim measures against intangible property is the same as that stated in question 24.

Attachment proceedings

28 What is the procedure to attach assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before attaching assets? If yes, are such proceedings ex parte?

After an execution order for an arbitral award has become final and binding, the applicant must complete three steps before making an application for compulsory execution.

First, the applicant must apply to the relevant court clerk for a certificate of execution to be attached to the authenticated copy of the arbitral award (Article 22, Item 6-2, Article 25 and Article 26, Paragraphs 1 and 2 of the Civil Execution Act). A certificate of execution is produced through the proceedings for the enforcement order. The applicant must submit the relevant application form and an authenticated copy of the arbitral award produced with the enforcement order. The court clerk will then conduct a formal examination of the application (such as checking whether the arbitral award has become final and binding). If the certificate of execution can be issued, the court clerk will affix the certificate of execution to the authenticated copy of the arbitral award, since the certificate of execution is in the form of a seal.

Second, the applicant must obtain from the relevant court clerk a certificate of service, which evidences that the authenticated copy of the arbitral award produced with the enforcement order has been served upon the defendant (Article 29 of the Civil Execution Act).

Third, the applicant must obtain from the relevant court clerk the certificate that evidences that the enforcement order has become final and binding (Article 48, Paragraph 1 and Article 50, Paragraph 3 of the Rules of Civil Procedure).

Following completion of these three steps, the applicant must petition either the relevant district court – for enforcement of a monetary award against immovable property or enforcement against intangible property (see questions 29 and 31) – or the relevant execution officer – for enforcement of a monetary award against movable property, enforcement of an award ordering the delivery of immovable property, enforcement of an award ordering a handover of movable property (see questions 29 and 30) or the commencement of compulsory attachment. When petitioning an execution officer, an applicant must supply (1) a petitioning form, (2) the authenticated copy of the arbitral award produced with the enforcement order (which has been affixed with the certificate of service), (3) the certificate of service, (4) the certificate evidencing that the order has become final and binding, and (5) other requirements, as the case may be, such as the certificate of incorporation of the counterparty (if the counterparty is a legal entity).

The procedures described in this question are conducted ex parte. For further information, see questions 29 and 30.

Attachment against immovable property

29 What is the procedure for enforcement measures against immovable property within your jurisdiction?

Enforcement of a monetary award

Compulsory auction and compulsory administration are both available as attachment measures for monetary claims against immovable property, and the applicant may use either or both of them (Article 43, Paragraph 1 of the Civil Execution Act).

A party must petition the relevant court for an order to commence either compulsory auction or compulsory administration. If the court determines that the requirements for issuing such an order are satisfied, the court will issue an order to commence compulsory auction or compulsory administration (as the case may be) against the target assets, stating that the target assets will be attached (Article 45, Paragraph 1 and Article 93, Paragraph 1 of the Civil Execution Act).

In the case of a compulsory auction, following the court’s order for its commencement, the court will order an execution officer to investigate the current condition of the immovable property (Article 57 of the Civil Execution Act), after which the execution officer will prepare a report of the investigation (Article 29 of the Rules of Civil Execution). The court will also appoint an appraiser and order him or her to appraise the immovable property (Article 58 of the Civil Execution Act) and prepare an appraisal report (Article 30 of the Rules of the Civil Execution). The court will determine the value of the immovable property based on the appraisal report (Article 60, Paragraph 1 of the Civil Execution Act) and, using both the investigation report and the appraisal report, will prepare a description of the property, which contains information about the immovable property (such as where it is located and any rights regarding the property) (Article 62 of the Civil Execution Act).

In parallel, the court clerk will give public notice of the fact that an order for the commencement of a compulsory auction has been issued, and the time limit for a demand for distribution of the proceeds of the sale. The court clerk will also issue a notice to certain creditors that they are to notify the court of the presence or absence of claims, and the basis and amounts of those claims, by the end of the time limit for a demand for distribution of the proceeds of sale (Article 49, Paragraph 2 of the Civil Execution Act).

The court clerk will then determine and carry out the method of selling the immovable property, including by silent or public auction (Article 64 of the Civil Execution Act). The proceeds from any sales will be distributed to the relevant creditors (Article 87 of the Civil Execution Act).

In the case of compulsory administration, upon the court’s order for its commencement, the court will appoint an administrator, who will be in charge of managing the relevant assets (Article 94, Paragraph 1 of the Civil Execution Act). The administrator will make a profit from the assets by leasing them or otherwise (Article 93, Paragraph 2 and Article 95, Paragraph 1 of the Civil Execution Act). The proceeds from any sales will be distributed to the relevant creditors (Article 107, Paragraphs 1 and 2 of the Civil Execution Act).

Enforcement of an award ordering the delivery of immovable property

Enforcement measures for the delivery or surrender of immovable property will be carried out as follows: (1) an execution officer removes the defendant from the immovable property; and (2) the execution officer requires the applicant to gain possession of the immovable property (Article 168 of the Civil Execution Act). The enforcement measures commence upon the filing of the petition (Article 2 of the Civil Execution Act).

Attachment against movable property

30 What is the procedure for enforcement measures against movable property within your jurisdiction?

Enforcement of a monetary award

A party must petition the relevant execution officer to commence the attachment procedure. If the procedure can be commenced, the execution officer will attach the property by seizing the target assets (Article 122, Paragraph 1 of the Civil Execution Act).

What happens next depends on whether the target assets are in the possession of the defendant or a third party. If the assets are in the possession of the defendant, the execution officer will be authorised to attach them by forcibly taking possession (Article 123, Paragraph 1 of the Civil Execution Act). However, if the target assets are in the possession of a third party, the execution officer is not permitted to take them unless the third party is willing to cooperate (Article 124, and Article 123, Paragraph 1 of the Civil Execution Act). If the third party is not willing to cooperate, the applicant will need to petition the relevant court for an order for attachment against the defendant’s right to take possession from the third party (Articles 143 and 163 of the Civil Execution Act).

Attached movable property will be sold by the execution officer in the way he or she deems appropriate (Article 134 of the Civil Execution Act). The proceeds from the sale of such assets will be distributed to the relevant interested parties (Article 140 of the Civil Execution Act).

Enforcement of an award ordering handover of movable property

In relation to non-monetary claims, the execution officer will confiscate the target assets from the defendant and deliver them to the applicant (Article 169 of the Civil Execution Act). Again, the applicant is required to file a petition to the court to access the remedy of attachment (Article 2 of the Civil Execution Act).

Attachment against intangible property

31 What is the procedure for enforcement measures against intangible property within your jurisdiction?

Claim for money

An applicant may petition the court for attachment against the defendant’s right to receive payments (referred to as a ‘monetary claim’) (Article 143 of the Civil Execution Act).

If the applicant is successful in obtaining attachment, the defendant’s entitlement to the payments will commence one week from the day on which the order for attachment is served upon the defendant (Article 155, Paragraph 1 of the Civil Execution Act). If the defendant refuses to pay monies to the applicant, the applicant can file a suit for enforcement of the payment (Article 157 of the Civil Execution Act). The applicant can appropriate from the collected amount the unpaid amount of the applicant’s claim and execution costs (Article 155, Paragraph 2 of the Civil Execution Act).

The applicant may also petition the court for an assignment order (Article 159, Paragraph 1 of the Civil Execution Act). If an assignment order is issued, the applicant’s claim for money and execution costs will be deemed to have been performed in the amount of the face value of the defendant’s attached claim for money, and the attached claim will be transferred from the defendant to the applicant at the time of service of the assignment order upon the defendant of the defendant’s attached monetary claim (Article 160 of the Civil Execution Act).

When the seized claim for money is subject to a condition or has a due date, or when it is difficult to collect the claim since it relates to counter-performance, or on any other grounds, the court may, upon petition, choose other remedies including to issue an order (1) to transfer the claim to the applicant at the price specified by the court in lieu of payment; (2) that requires an execution officer to sell the claim by the method specified by the court in lieu of collection; (3) to appoint an administrator and order the administrator to conduct administration of the claim; or (4) to adopt any other reasonable method (Article 161, Paragraph 1 of the Civil Execution Act).

Other intangible property rights

If the target assets consist of any other property right (e.g., copyright, patents, electronic shares), except as otherwise provided, the rules for enforcement against monetary claims will apply mutatis mutandis (Article 167, Paragraph 1 of the Civil Execution Act).

Enforcement against foreign states

Applicable law

32 Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?

Although there are no rules that specifically govern recognition of arbitral awards against foreign states, the Act on the Civil Jurisdiction of Japan with respect to a foreign state provides, inter alia, foreign states with immunity from the enforcement of arbitral awards (Article 17, Paragraph 1 of the Act on the Civil Jurisdiction of Japan with respect to a Foreign State, etc.). See also questions 34 and 35 for more information.

Service of documents to a foreign state

33 What is the applicable procedure for service of extrajudicial and judicial documents to a foreign state?

Judicial documents

As stated in question 19, in relation to service by the court, there are several methods available. The method used will depend on the terms of the relevant treaty between Japan and the country in which the defendant is domiciled.

There are three main methods of service: (1) requesting the related foreign authorities to serve the documents; (2) serving the documents via the Japanese consulate; or (3) requesting the courts of the foreign country to effect service of the documents.

If there is no applicable treaty, the foreign state’s agreement to serve documents is required.

Extrajudicial documents

There is no specific treaty or municipal law governing the service of extrajudicial documents.

Immunity from enforcement

34 Are assets belonging to a foreign state immune from enforcement in your jurisdiction? If yes, are there exceptions to such immunity?

Assets belonging to a foreign state are immune from enforcement of arbitral awards unless the foreign state agrees otherwise in a treaty or other international agreement, an arbitration agreement, or a written contract (Article 17, Paragraph 1 of the Act on the Civil Jurisdiction of Japan with respect to a Foreign State, etc.).

Waiver of immunity from enforcement

35 Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? If yes, what are the requirements of such waiver?

Yes – see question 34.

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