It is understood that as transactions with foreign companies increase, so do cases of dealing with trials at foreign courts. However, the decisions of foreign courts cannot be enforced in Japan as they are, and certain requirements must be met. Therefore, we will briefly explain the enforcement of decisions of foreign courts in Japan this time.
- Enforcing final decisions of foreign courts in Japan
According to Article 118 of the Code of Civil Procedure, a final decision of a foreign court shall be effective only if it meets all of the following requirements.
- The jurisdiction of the foreign court is recognized by law or treaty.
- The losing defendant has been serviced with a summons or order necessary for initiating the proceedings (excluding service by publication or similar), or has not received one but has filed a countersuit anyway.
- The content of the judgment and the proceedings do not violate the public order or good manners and customs in Japan.
- There is a mutual guarantee.
Item No. 1 generally requires that the foreign court have power of judicial decision by international law in addition to adjudicative jurisdiction. In other words, if the foreign court does not have adjudicative jurisdiction over the case, the requirements of this item will not be met.
Item No. 2 is a requirement established to provide the defendant with an opportunity to defend itself.
The requirement in Item No. 3 will not be met if one seeks the enforcement of a final decision ordering the performance of debt from gambling, for example.
Simply put, Item No. 4 requires that in the foreign country, a Japanese decision of the same type as that rendered by the foreign court has effect under conditions that do not differ in material terms from the conditions of this item.
In this paper, we will further explain (1) the significance of “foreign” courts, and (2) the significance of “service”, which have actually been a problem in some of our cases.
2. Significance of “foreign” courts
There have been cases where the question of whether a court in a country unapproved by Japan (e.g. Taiwan) falls under the “foreign” courts of Article 118 of the Code of Civil Procedure.
It is understood that there is no clear judgment on this point. However, the following theories exist on this point.
- As long as the basis of the approval system is seen as securing the stability of public life by ensuring the protection of the rights of the parties, it is thought that there is no reason to refuse approval just because it is an unapproved country (cited references omitted).” (Masahiro Suzuki = Yoshimitsu Aoyama, “Commentary on the Code of Civil Procedure (4) Trials,” p. 361 [Hiroshige Takata] (Yuhikaku, 1997))
- “For the purposes of the system, which is the stability of the international legal relations of the parties, the foreign state in this article (Note: Article 118) shall not be limited to countries approved by the state or government of Japan” (Shō Kashū et al., “Basic Legal Commentary – Code of Civil Procedure 1,” p. 301 [Hajime Sakai] (Nihon Hyoronsha, Supplement to 3rd Ed., 2012))
- “Foreign country here means an entity that exercises independent power of judicial decision different from Japan. It includes not only nation states but also international organizations. In the case of nation states, although there is debate about whether or not it must be a nation state approved by Japan, it is generally accepted that unapproved countries are also included from the standpoint that the basis of the approval system is the stability of public life by ensuring the protection of the rights of the parties (cited reference omitted).” (Mikio Akiyama et al., “Commentary on the Code of Civil Procedure II,” p. 513 (Nihon Hyoronsha, 2nd Ed., 2009))
- “What is approved in this article (Note: Article 118) is the final decision of ‘foreign courts’, but here the term ‘foreign’ refers to the entity exercising jurisdiction other than Japan. There are also strong opinions that it is necessary for the countries to be approved by the state or government of Japan (cited references omitted), but most theories deem it unnecessary (cited references omitted).” (Hajime Kaneko et al., “Interpreting the Code of Civil Procedure,” p. 624 [Morio Takeshita] (Kobundo, 2nd Ed., 2011))
Thus, there are multiple ways of thinking that affirm that a court in a country unapproved by Japan (e.g. Taiwan) falls under the “foreign” court of Article 118 of the Code of Civil Procedure. Accordingly, it is generally thought that even a decision in an unapproved country falls under the decision of a “foreign” court in Article 118 of the Code of Civil Procedure.
3. Significance of “delivery”
If the defendant in a foreign decision loses, in order to approve and enforce the judgment in Japan, he or she must have received a summons or order necessary to start the proceedings, or to have filed a suit for the proceedings, even if there was no service by publication (Article 118 (2) of the Code of Civil Procedure).
Service by publication is a service method that pretends to notify the start of a proceeding by posting a complaint, summons, etc. in certain public places, and given that it does not guarantee the actual defense of the defendant, it is said not to meet the requirements for approval and enforcement of foreign decisions.
In addition to service by publication, methods such as service by mail, which only needs to be sent and does not actually need to arrive, and “service to the public prosecutor’s office” under French law, also notify the defendant of the actual start of the proceedings, and are understood as not meeting the requirements as delivery methods that are insufficient to actually guarantee the right to defend against it. However, for service by mail, a judge at the Tokyo District Court (at the time of publication) is of the opinion that it is not necessary to comply with a service by publication if it is proved that it actually arrived at the defendant’s (Akihiko Kobayashi “Decisions enforcing foreign decisions,” Case Times, Vol. 937, p. 38). The summons or order referred to in Article 118 (2) of the Code of Civil Procedure does not need to comply with the laws and regulations concerning civil procedures in Japan, but the defendant may actually acknowledge the start of the proceedings. Moreover, it must not hinder the exercise of its right to defend, and if a treaty concerning the method of service has been concluded between the deciding country and Japan, it must comply with that method (Supreme Court ruling on April 18, 1998).
4. Main countries / regions where the decision was actually approved
Finally, for reference, the main countries and regions for which final decisions have been approved up to now are listed below.
California, Oregon, Hawaii, Minnesota, Virginia, Maryland, New York, Nevada, Washington DC (all of the above are in the United States), England, Wales, Germany, South Korea, Singapore, Hong Kong, and Queensland (Australia) (according to a survey dated November 30, 2016).
Whether or not the requirements of Article 118 of the Code of Civil Procedure are satisfied depends on the individual case, so final decisions by courts in the countries or regions above will not necessarily be uniformly approved in Japan even if from a court in said countries or regions.