Greetings from the President
Haruo Okada President
Japan Association of Arbitrators
The Japan Association of Arbitrators was founded in 2003 as a voluntary organization and, after having been incorporated as a general incorporated association, became a public interest incorporated association in 2014. The main members are legal practitioners and researchers, and the purpose of the association is to foster human resource development and training, research, dissemination, and awareness-raising related to arbitration and mediation.
Arbitration and mediation are dispute resolution procedures that are self-governed by the parties. Litigations are very different, as they are dispute resolution procedures based on the exercise of state power.
Arbitration, not litigation, is the primary means of resolving international commercial disputes. This global trend has become more and more pronounced in recent years. The advantages of arbitration vis-à-vis litigation include: (i) the absence of the involvement of state power, the final decision being made by private arbitrators selected by the parties, and less possibility of bias such as the protection of nationals, (ii) the flexibility to determine the procedures by agreement of the parties, (iii) non-publicized nature of the proceedings, and (iv) the application of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), which makes it extremely easy to enforce in foreign countries.
On the other hand, arbitration procedures have recently become more complex, lengthy, and costly. For this reason, mediation has come into the limelight around the world as a procedure that complements the shortcomings of arbitration.
Mediation tends to be completed in 1~2 consecutive days and tends to enable a quick and inexpensive solution. No settlement is forced, but prominent international mediation organizations boast a high success rate of over 80%. It is appropriate between parties who plan to continue their business relationship in the future because it allows for adjustments that focus on the entire relationship behind the dispute, rather than determining winners and losers of the particular claim, and because it is non-adversarial in structure.
Arbitration and mediation are dispute resolution procedures with their own merits, and they complement each other like two wheels of a car, rather than being mutually exclusive. For example, the coordinated use of arbitration and mediation, such as med-arb, which first conducts mediation proceedings and then moves to arbitration if the dispute cannot be resolved through mediation, or arb-med (-arb), which suspends arbitration soon after the start of arbitration, conducts mediation proceedings first and returns to arbitration if the mediation is unsuccessful, has been attracting much attention recently, and, therefore, it is imperative to promote the use of arbitration and mediation together.
Although arbitration and mediation are in the limelight worldwide, many issues are to be addressed in Japan. Unfortunately, the number of arbitration cases in Japan is small and sluggish. In addition, since ancient times, Japan has had a culture that does not favor conflict and respects harmony, and while court-assisted mediation, which is domestic mediation, has a long history and a proven track record, international commercial mediation has not yet penetrated the market and has a poor track record.
To break through this situation, the Association has been actively promoting arbitration and mediation.
Concerning the promotion of arbitration, in March 2017, the Association submitted a “Request for the Development of Infrastructure for Effective International Dispute Resolution in Japan” to the government. The Japan International Dispute Resolution Center (JIDRC) has come to fruition in the form of opening the Osaka facility in May 2018 and the Tokyo facility in March 2020 as part of the development of hard infrastructure to promote arbitration. The JIDRC is equipped with state-of-the-art, well-equipped arbitration-related facilities and serves as a central hub for the promotion and awareness-raising activities of arbitration in Japan. As for the development of soft infrastructure, the Arbitration Law, which had never been amended since its enactment in 2003, is now being revised to comply with the 2006 amendments to the UNCITRAL Arbitration Model Law. The main focus of the Association is now to train Japanese practitioners for international arbitration who will be internationally accepted and active in the field. The Association believes that the most important mission of arbitration in Japan is to promote and revitalize arbitration in Japan by fostering human resources capable of playing an active role in the international arena. As part of this practice, we have begun offering a world-standard arbitrator training program in collaboration with JIDRC and CIArb (the Chartered Institute of Arbitrators in the UK, a globally recognized public interest organization for the training of arbitrators and mediators).
In the area of mediation promotion, with regard to the development of infrastructure for international mediation which has long been lacking in Japan, in November 2018, our efforts came to fruition with the full cooperation of Doshisha University in the form of the establishment of the Japan International Mediation Center in Kyoto (also known as the JIMC-Kyoto), which is the first international mediation center in Japan. In addition, in order to make it easier to bring international commercial cases to Japan, the Association has also worked hard to develop legislation to clearly stipulate that foreign lawyers and foreign registered lawyers in Japan can act as counsels for mediation, and this legislation was passed in May 2020. In addition, the Association has been actively working for the early signing by Japan of the Singapore Convention on International Commercial Mediation, which gives enforceability to settlement agreements obtained as a result of international mediation, and has been actively working for the enactment of the related domestic legislation. As a result, it is expected that the early signing by Japan of the Singapore Convention on International Commercial Mediation and the enactment of the related domestic legislation will be realized.
While these numerous measures for promoting arbitration and mediation were being implemented, international business was affected worldwide by the global outbreak of the COVID-19. Although travel restrictions and transportation restrictions made face-to-face arbitration and mediation difficult, this has become the catalyst for a revolutionary evolution in online arbitration and mediation. Arbitration and mediation can flexibly incorporate the use of online because the parties can flexibly determine the procedures by agreement. In arbitration, hearings have been conducted online in the past, but due to the impact of the COVID-19 epidemic, online procedures are being actively used. The time and expense involved in arbitration has sometimes been considered a drawback, but the use of online procedures has enabled busy international arbitrators and counsels to coordinate their schedules more efficiently, and has dramatically reduced the cost of hearings, etc., including travel expenses, time, and facility costs, thereby significantly compensating for the drawbacks.
Mediation, which can quickly and inexpensively adjust the entire relationship between the parties, has also gained attention as the most appropriate dispute resolution method between companies that have suffered mutual damage or loss due to the effects of the COVID-19. While the advantages of face-to-face mediation naturally exist, the techniques of online mediation have also evolved dramatically, and the advantages of mediation in terms of inexpensive, fast, and mediated resolution are further evolving, and cooperation among international mediation organizations is also increasing. In order to jointly conduct online mediation quickly and inexpensively, the Association has been implementing the JIMC-SIMC Joint Covid19 Protocol with the Singapore International Mediation Centre (SIMC), which has been very well received and is attracting attention as a pioneering collaboration between international mediation organizations.
Even after the COVID-19 has been settled, the use of online procedures, which have evolved dramatically in the wake of the COVID-19, is expected to continue to evolve, as it is expected to continue to be used frequently in the future.
In response to global trends, the Association will continue to work with international ADR organizations in Japan and abroad to bring arbitration and mediation in Japan to a higher stage.
We hope that practitioners and researchers involved in international dispute resolution, and young people who will become responsible for handling international dispute resolution in the future, will participate in the activities of the Association.