JAPAN Law and Practice Contributed by: Hiroki Wakabayashi, Kenichi Sadaka and Kei Akagawa, Anderson Mori & Tomotsune
6.3 Availability of Injunctive Relief on an Ex Parte Basis Injunctions obtained through a provisional remedy process to maintain the status quo (eg, freezing assets) will usually be granted by the courts on an ex parte basis (Article 3 of the CPRA). However, injunc- tions that determine a provisional status due to that status being necessary in order to avoid any substan- tial detriment or imminent danger that would occur to the applicant with regard to the rights in dispute cannot, in principle, be granted on an ex parte basis (Article 23 of the CPRA). 6.4 Liability for Damages for the Applicant If the respondent suffers any damages from a provi- sional injunction which is later discharged, the appli- cant is liable for the damages. However, the appli- cant may argue against its negligence and liability if it can demonstrate its reasonable ground to apply and obtain the order. For such potential liability, the applicant is ordinarily required to provide a security deposit, except in cases where such potential liability cannot be assumed (Article 14 of the CPRA). 6.5 Respondent’s Worldwide Assets and Injunctive Relief As long as a Japanese court has the jurisdiction to adjudicate the merits of a case, that Japanese court can grant injunctive relief against the worldwide assets of the respondent (Article 11 of the CPRA), although the enforceability of such relief outside Japan depends on its recognition in the country where the assets are located. 6.6 Third Parties and Injunctive Relief It is a typical situation that an applicant has a mon- etary claim against a defendant and the defendant in turn has a monetary claim against a third party, where injunctive relief can be obtained against the third party. In the application for the injunctive relief, the applicant is deemed to concurrently seek a provisional court order to garnish the defendant’s monetary claim and to prevent the third party from paying the defendant. 6.7 Consequences of a Respondent’s Non- Compliance If a respondent fails to comply with the terms of an injunction, the applicant may, depending on the type
als has learnt in the course of their duties and which should be kept confidential; or (b) matters concerning technical or professional secrets. • a document prepared exclusively for use by the holder thereof (excluding a document held by the state or a local public entity, which is used by a public officer for an organisational purpose); or • a document concerning a suit pertaining to a criminal case or the record of a juvenile case, or a document seized in these cases. 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief Injunctive relief can be sought through normal litiga- tion as well as a provisional remedy process in urgent cases. Injunctions freezing assets are commonly requested through this provisional remedy process for the purpose of the future enforcement of mon- etary claims. However, unlike a freezing injunction (formerly known as a Mareva injunction) in common law jurisdictions, the petitioner typically has to identify the assets to be seized. Injunctions to prevent certain actions damaging the interest of another party (eg, publication on the inter- net/other media or corporate action such as security issuances) are relatively common. However, as far as is known, an injunction to prevent parallel proceedings in another jurisdiction (ie, an anti-suit injunction) has not been granted in Japan. 6.2 Arrangements for Obtaining Urgent Injunctive Relief As mentioned in 6.1 Circumstances of Injunctive Relief , the court may respond to an urgent request. The major courts normally have an out-of-hours win- dow; however, there are no out-of-hours judges for civil cases in Japan. In practice, some courts in big cities which are used to handling urgent commercial cases are likely to respond more quickly but that also depends on the nature of the case.
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