Opinion Papers

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Draft of the outline for legislation of the Acts reflecting the UNCITRAL Model Law on International Commercial Arbitration with amendments as adopted in 2006

Japanese

June 21, 2019

Japan Federation of Bar Associations

Reason for opinion

The Japan Federation of Bar Associations proposes that the Arbitration Act, the Civil Execution Act, etc. should be amended to reflect the United Nations Commission on International Trade Law (hereinafter referred to as "UNCITRAL") Model Law on International Commercial Arbitration with amendments as adopted in 2006 (hereinafter referred to as "2006 Model Law for Arbitration").

Draft of the outline

(1) Add the title of obligation.

Add "interim measures or provisional measures (limited to the measures with a final and binding execution order) ordered by an arbitral tribunal (only when the place of arbitration is located in Japan)" to Article 22 of the Civil Execution Act.

(2) Set definition of interim or provisional measures which can be ordered by an arbitral tribunal.

Set the definition of interim or provisional measures to the Arbitration Act as below.
Interim or provisional measures mean all temporary measures regardless of whether they have been ordered through arbitration or another style of decision, in which an arbitral tribunal orders the following measures to the parties at the timing prior to making the final arbitral award to resolve the dispute.

1 Maintain or recover the current situation until the dispute is resolved.

2 Take action to prevent the current or impending detriment or hindrance of the procedures for arbitration or prevent acts which may cause this.

3 Implement temporary measures to preserve assets necessary to execute the future arbitral award.

4 Preserve the evidence related to and important for the resolution of the dispute.easures;

(3)Establish the provisions for filing a petition for an execution order on the interim or provisional measures by an arbitral tribunal

Establish the provisions in the Arbitration Act so that a party that intends to have a civil execution based on the interim or provisional measures ordered by an arbitral tribunal (only when the place of arbitration is located in Japan) may file a petition with the court for an execution order designating the obligor as the respondent.

(4) Establish the provisions for the reason for denial of the execution order on the interim or provisional measures by an arbitral tribunal

The Arbitration Act stipulates the reasons for filing a petition for the denial of an execution order described in (3) as below.

1 the arbitration agreement is not valid due to the limited legal capacity of a party;

2 the arbitration agreement is not valid on grounds other than the limited legal capacity of a party pursuant to the laws designated by the agreement of the parties as those which should be applied to the arbitration agreement (if said designation has not been made, Japanese laws);

3 a party did not receive the notice required under the Japanese laws (if the parties have reached an agreement on the matters concerning the provisions unrelated to public order in such laws, said agreement) in the procedure of appointing arbitrators or in the procedure for interim or provisional measures;

4 a party was unable to defend themselves in the procedure of the interim or provisional measures;

5 the interim or provisional measures contain a decision on matters beyond the scope of the arbitration agreement or of the petition presented in the arbitration procedure;

6 the composition of the arbitral tribunal or the procedure for the interim or provisional measures is in violation of the Japanese laws (if the parties have reached an agreement on the matters concerning the provisions unrelated to public order in such laws, said agreement);

7 in the case an arbitral tribunal orders the provision of appropriate security to take interim or provisional measures, no evidence shall exist that the said security is provided;

8 the interim or provisional measures are cancelled by an arbitral tribunal or their execution is suspended;

9 the interim or provisional measures cannot be executed under Japanese laws;

10 a petition filed in the arbitration procedure is concerned with a dispute which may not be subject to an arbitration agreement pursuant to the provisions of Japanese laws;

11 the content of the interim or provisional measures is contrary to public policy in Japan.

(5) Legislation of other related provisions

In addition to the above, related provisions such as transfer of the petition, necessity of examination, propriety of immediate appeal, etc. pertaining to execution order of the interim or provisional measures issued by an arbitral tribunal, shall be organized following the related provisions pertaining to the execution order of arbitral decision(Arbitration Act Article 46 (2) or (10)).