JAPAN Law and Practice Contributed by: Jumpei Osada, Masaaki Sasaki, Takuto Kobayashi and Hiroshi Ideyama, TMI Associates
Time Bar for Passenger Claims The time bar for passenger claims for personal injury or death in relation to transportation as a tort claim is five years from the time when the passengers first become aware of the damage and the wrongdoers, or 20 years from the time when the damage occurs. For a contractual claim, the time bar is five years from the time when the passengers first become aware of the damage and the wrongdoers, or ten years from the time when the damage occurs. Maritime Lien for Indemnities for Injuries of Passengers A maritime lien for indemnities for injuries of passen - gers is recognised to the extent that such injury is directly in connection with the navigation of the ves - sels in question. 7. Enforcement of Law and Jurisdiction and Arbitration Clauses 7.1 Enforcement of Law and Jurisdiction Clauses Stated in Bills of Lading If a bill of lading indicates a specific foreign law as a governing law, Japanese courts will respect and accept that foreign law. In the absence of a governing- law clause in a bill of lading, it would be extremely difficult to predict the decision on what laws should be applicable to and govern the bill of lading. In practice, almost all bill of lading forms issued by Japan-related carriers have a governing-law clause. Japanese courts also are inclined, broadly, to admit and enforce an exclusive jurisdiction (and arbitration) clause on the reverse side of a bill of lading. This means that the courts will dismiss a claim brought to an undesignated jurisdiction under a contract of car - riage covered by a bill of lading. 7.2 Enforcement of Law and Arbitration Clauses Incorporated Into a Bill of Lading Where a bill of lading has clear clauses or wording for the incorporation of the terms set out in a specific charterparty, the incorporation of those terms (includ - ing the jurisdiction and dispute resolution clauses) into the bill of lading would be adopted by Japanese courts. However, the details of what the courts require
for such incorporation are still unclear, since there are only a few judgments by the courts on this issue. 7.3 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards Japan is a contracting state to the 1958 New York Convention. Arbitral awards rendered in signatory countries of the Convention are enforceable in Japan, as long as the requirements of the Convention have been fulfilled. Conversely, the enforceability of arbitral awards in non-party states is subject to the conditions set out in the Arbitration Act. The Arbitration Act has very similar provisions to those provided in the 1958 New York Convention. For instance, in cases where the party to an arbitral award attempts to resist its enforcement, the main available grounds are set forth under the Arbitration Act, and are that: • the arbitration agreement is not valid due to the limited capacity of a party, etc; • the arbitration proceedings have serious defects, such as a lack of proper notice or opportunity for defence; • the arbitral award is not valid on the premise that it contains a decision on matters going beyond the scope of the arbitration agreement, or the arbitral award is not final and binding, or the arbitral award has been set aside or its effect has been suspend - ed by a judicial body of that country, etc; or • the content of the arbitral award is contrary to pub - lic policy in Japan. 7.4 Arrest of Vessels Subject to Foreign Arbitration or Jurisdiction In Japan, it is considered that Japanese courts will issue an arrest order for a vessel if the courts find that the claim in question is secured by a maritime lien, regardless of whether the claim is subject to a foreign arbitration/jurisdiction clause under the relevant con - tract/bill of lading. Where the creditors attempt to arrest a vessel by a provisional attachment order, the courts will not allow the creditors to arrest the vessel, unless there is a possibility that a claim which is subject to a foreign arbitration/jurisdiction clause, and which will eventu -
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