JAPAN Law and Practice Contributed by: Hiroki Wakabayashi, Kenichi Sadaka and Kei Akagawa, Anderson Mori & Tomotsune
tions – and dismiss the case. Refer also to 7.2 Case Management Hearings . 4.3 Dispositive Motions Motions to dismiss a case due to lack of international jurisdiction or due to the existence of an arbitration agreement are dispositive motions. A defendant is required to file such a motion before presenting any arguments on the merits of the case. Judges have the discretion to either suspend consideration of the merits until they reach a decision on the dispositive motion or to examine the merits alongside the disposi- tive motion. In practice, when judges determine that the disposi- tive motion warrants dismissal, they often issue their decision to dismiss the motion at the same time as their decision on the merits of the case. 4.4 Requirements for Interested Parties to Join a Lawsuit Interested parties may join a lawsuit through one of the following procedures. • By filing a written petition with the court, a third party with an interest in the outcome of the litiga- tion may intervene in the litigation in order to assist either party (Article 42 of the CCP). • By filing a written petition with the court, a third party asserting that a right will be prejudiced by the outcome of the litigation or a third party asserting entitlement to the whole or part of the subject mat- ter of the litigation may intervene in the litigation as a party, designating either or both of the parties to the litigation as an adverse party (Article 47 of the CCP). • By filing a written petition with the court, a third party may intervene in the litigation as a co-plain- tiff/defendant if the subject matter of the litigation is to be determined for one of the original parties and a third party only as a unified matter (Article 52 of the CCP). 4.5 Applications for Security for Defendant’s Costs If the plaintiff is not a resident of Japan or other coun- tries that are signatories to the Hague Convention on Civil Procedure, the defendants may apply for an order
the plaintiff’s favour, unless the court thinks it lacks jurisdiction over the case. 3.7 Representative or Collective Actions Japan has its own class action system, which has an opt-in format. However, the claims that may be made in a class action are limited to those arising from con- sumer contracts and the damages to be recovered through the system are limited. Furthermore, the par- ties who can be plaintiffs in a class action are limited to organisations licensed by the government. In fact, this class action system has rarely been used. There is also a system by which persons with a common interest may appoint one or more persons from among themselves to act as the plaintiff or defendant, but this system has also rarely been used. 3.8 Requirements for Cost Estimate The Japan Federation of Bar Associations’ rule requires a lawyer to give an estimate when so request- ed by a client. Parties may make an interim application regarding case management issues under the CCP and/or provi- sional remedies under the Civil Provisional Remedies Act (1989 Law No 91, or CPRA). An application regard- ing case management issues is normally handled by the same judge overseeing the substantive claim; however, for provisional remedies the application may be handled by a different court as a request for such provisional remedies is heard in a separate case from the case for the substantive claim and can be filed at another court with jurisdiction due to the presence of the subject assets (Article 12 of the CPRA). 4.2 Early Judgment Applications Generally, all issues on the procedures and merits are assessed in the same process. However, if it is obvi- ous that a certain procedural requirement is not met, as challenged by the counterparty, the judge may give an interim decision on the specific procedural issue and may also conclude the process without admitting evidence on the merits – such as witness examina- 4. Pre-Trial Proceedings 4.1 Interim Applications/Motions
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