JAPAN Law and Practice Contributed by: Hiroki Wakabayashi, Kenichi Sadaka and Kei Akagawa, Anderson Mori & Tomotsune
6.6 Third Parties and Injunctive Relief It is a typical situation that an applicant has a monetary 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 appli- cation 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 of the injunction, be entitled to disre- gard such act of the respondent or to see for an additional court order that the respondent must pay a daily penalty during the period of non- compliance. In addition, such non-compliance can itself be a tort against the applicant. In general, several weeks after the complaint is filed, the court will hold the first oral hearing, during which the plaintiff will plead the com- plaint and the defendant, the answer. After that, in the case of relatively complicated business disputes, the court will hold several oral hear- ings, or preparatory hearings if the court deems appropriate, every four to eight weeks. During such pleading period, both parties will submit their legal briefs and supporting written evidence to advance their arguments, and the court will try to narrow down the issues to be determined. At the end of this pleading period, if the court finds it necessary to examine witnesses/experts 7. Trials and Hearings 7.1 Trial Proceedings
handling urgent commercial cases are likely to respond more quickly but that also depends on the nature of the case. 6.3 Availability of Injunctive Relief on an Ex Parte Basis Injunctions obtained through a provisional rem- edy 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, injunctions that determine a provisional status due to that status being nec- essary in order to avoid any substantial detri - ment 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 provisional injunction which is later discharged, the applicant is liable for the damages. However, the applicant may argue against its negligence and liability if it can demonstrate its reasona- ble 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 Japa- nese 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.
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