JAPAN Law and Practice Contributed by: Makoto Hattori, Rikita Karakawa, Wataru Takagishi and Taku Shibazaki, Abe, Ikubo & Katayama
instead, it is typically standardised at approximately 10% of the principal damages proven in court. Unlike jurisdictions that apply a “loser pays” rule for actual legal costs, Japanese courts award these fees as part of the compensation for the harm caused by the infringement. 7.5 Costs Statutory court costs (eg, filing fees and postage) are generally borne by the losing party, excluding attor - neys’ fees. To recover these costs, however, a suc - cessful litigant must file a separate motion after the judgment becomes final to determine the specific amount. In practice, this process is rarely pursued. Since the recoverable amounts are typically minimal compared to the overall legal expenditure and the effort required for the additional proceeding, many litigants choose not to seek them. Trade secret disputes are heard by a District Court in the first instance. Either party – claimant or respond - ent – may appeal to the High Court that holds juris - diction over the trial court. Once an appeal is filed, the appellant is typically required to submit a detailed Statement of Grounds for Appeal within 50 days. The average duration for an appeal in the High Court is six months. Parties are entitled to a final appeal to the Supreme Court by right in cases involving a constitutional viola - tion or specific material procedural flaws enumerated by law. 8.2 Factual or Legal Review The High Court employs a “continuation” ( zokushin ) system, performing a de novo review of both facts and law. While parties may introduce new evidence, the court can dismiss untimely submissions result - ing from intent or gross negligence that cause undue delay. Consequently, diligent presentation during the first instance is vital to “preserve” issues for effective appeal. 8. Appeal 8.1 Appellate Procedure
In contrast, the Supreme Court is strictly a court of law, bound by the High Court’s factual findings and permitting no new evidence or factual challenges. 9. Criminal Offences 9.1 Prosecution Process, Penalties and Defences Victims of trade secret misappropriation can initi - ate criminal proceedings by filing a formal complaint under the Code of Criminal Procedure. To bolster enforcement, Trade Secret Protection Offic - ers are now stationed at prefectural police headquar - ters. Early consultation and ongoing cooperation with these specialised units are vital for effective investiga - tions. In Japan, while litigation is the standard, several ADR mechanisms offer efficient alternatives for trade secret disputes. • Civil Mediation & Arbitration – general civil media - tion is available for a low cost, while arbitration (eg, JCAA) is used primarily in international contexts. • IP Mediation (Chizai Chotei) – launched in 2019 at the Tokyo and Osaka District Courts, this special - ised system is gaining traction. It features a panel of three – a judge and two IP experts (lawyers or patent attorneys) – who provide a non-binding evaluation of the case within a few sessions. It is highly valued for providing a fast, expert-led resolution to complex technical disputes while maintaining strict confidentiality through closed proceedings that protect sensitive proprietary infor - mation, unlike traditional public trials. 10. ADR 10.1 Dispute Resolution Mechanisms
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