JAPAN Law and Practice Contributed by: Taro Omoto, Yusuke Nakajima and Makoto Sakai, Mori Hamada & Matsumoto
aircraft-specific), it usually takes a few days after the application to obtain an order of provisional disposi - tion prohibiting the transfer of possession. 2.6.5 Domestic Courts’ Approach to Foreign Laws and Judgments In general, a Japanese court will uphold: • a foreign law as the governing law of an aircraft lease (see 2.1.2 Application of Foreign Laws ); • submission to the jurisdiction of the foreign courts by the parties as far as the matter is not subject to the exclusive jurisdiction of Japan, and the foreign court has jurisdiction over such dispute under the laws of the jurisdiction where the foreign court is located; and • a waiver of immunity by the parties to such lease. 2.6.6 Domestic Courts’ Recognition of Foreign A judgment of a foreign court can be enforced in a court of Japan, without further consideration of the merits of the case, if all of the following conditions are satisfied: • the foreign judgment concerned is duly obtained and is final and conclusive; • the jurisdiction of the foreign court is recognised in light of Japanese laws; • the service of process, accompanied by an appropriate Japanese translation, has been duly effected, in light of Japanese laws, on the defeated defendant other than by public notice, or the defeated defendant has appeared in the relevant proceedings without receiving service thereof; • the foreign judgment is not contrary to public policy or the good morals doctrine in Japan; and • judgments of Japanese courts receive reciprocal treatment in the courts of the foreign jurisdiction concerned. Foreign Arbitral Awards Japan has ratified the 1958 Convention on the Recog - nition and Enforcement of Foreign Arbitral Awards (the New York Convention), and a foreign arbitral award can be enforced in a court of Japan without further consideration of the merits of the case, unless certain Judgments/Awards Foreign Judgments
conditions set forth in the Arbitration Act (Act No 138 of 1 August 2003) are met, which are substantially the same as those set forth in the New York Convention. 2.6.7 Judgments in Foreign Currencies There are several precedents of judgments obtained in a foreign currency. However, there is a possibility that the debtor may be allowed to pay in Japanese yen if it so wishes. 2.6.8 Limitations on Lessors’ Actions Following Termination There are basically no limitations on a lessor’s abil - ity to recover default interest or to charge additional rent following termination of the lease upon default, as long as it is not against public policy. 2.6.9 Lessor’s Requirement to Pay Taxes/Fees In order to judicially enforce the lease and recover possession of the aircraft, the lessor must first obtain a court judgment ordering the lessee to return the aircraft to the lessor and then apply to the court for enforcement of that judgment. The lessor must pay fees to the court for such pro - ceedings. The lessor must also deposit with the court in advance the costs to be incurred by the court in enforcing the judgment, although these costs may be reimbursed by the lessee. In addition to the court fees, the lessor must also bear the legal fees of their legal counsel. 2.6.10 Mandatory Notice Periods There is no mandatory notice period for terminating an aircraft lease under Japanese statutes. 2.6.11 Lessees’ Entitlement to Claim Immunity As far as a commercial lease is concerned, an aircraft lessee is unlikely to be entitled to sovereign immunity from the civil jurisdiction of Japan. Sovereign immu - nity can be waived by written contract. 2.6.12 Enforcement of Foreign Arbitral Decisions See 2.6.6 Domestic Courts’ Recognition of Foreign Judgments/Awards .
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