I. INTRODUCTION
The modifications to the Arbitration Rules of the Japan Commercial Arbitration Association (the “JCAA”) shall be applicable to all arbitrations commenced on or after 1st February 2014. This is the first substantial change to said rules since 2004.
In the press release issued by the JCAA the reasons for said modifications are said to be the recent revisions to arbitration models, such as the UNCITRAL model, and the models of the Arbitration Court of the International Chamber of Commerce or the Swiss arbitration law.
II. MODIFICATIONS
We may divide the modifications carried out by the JCAA into five key changes:
(1) APPOINTMENT OF ARBITRATORS
When the parties appoint arbitrators, they should receive confirmation of the appointment from the JCAA for such appointment to be effective.
Furthermore, in the light of the new Arbitration Rules, when the JCAA appoints an arbitrator, it is now required to respect the request of any party that the arbitrator be of a different nationality to the parties.
In arbitration proceedings participated by more than three parties with an arbitrator, all of the parties should jointly appoint the arbitrator, and in cases where they are unable to reach agreement on the appointment, the arbitrator shall be appointed by the JCAA.
Likewise, the principle of equality in the appointment of arbitrators is introduced in this section, according to which, it is possible to appoint an arbitrator both when filing a claim as well as when answering the claim, provided that it is a procedure with a panel of three arbitrators.
(2) ACCUMULATION AND PARTICIPATION OF THIRD PARTIES
The circumstances under which other arbitration proceedings are accumulated shall be set forth pursuant to the introduced modifications.
(3) MEDIATION
The rules regarding mediation during arbitration proceedings are introduced. According to the Arbitration Rules, a mediator may not grant an audience to one of the parties, without prior consent from the other party. Likewise, during a mediation already commenced within arbitration proceedings, the proposals and/ or declarations of any of the parties, or any recommendation of the mediator carried out during said mediation, may not be put forward as evidence in the arbitration proceedings, unless so agreed by the parties.
(4) INTERIM MEASURES
A new section dedicated to the filing for interim measures is introduced. Thus, the appointment of an arbitrator may only be requested when the requirements established in the Arbitration Rules are fulfilled, so that, prior to the start of the arbitration proceedings, interim or emergency measures may be taken.
(5) EXPEDITED PROCEDURE
Rules for carrying out “expedited procedures” for amounts not exceeding 20.000.000 JPY are introduced. Likewise, the parties may use this process regardless of the amount, upon agreement of both parties.
III. CONCLUSION
The above are measures focused on the improvement of arbitration proceedings and on the adaptation of arbitration to the most advanced models. With these modifications legal security is gained in arbitration proceedings in Japan, and the path is made smoother so that foreign companies are no longer afraid of arbitration in Japan.
Mika Otomo
Vilá Abogados
For more information, please contact:
24th July 2014
