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Advances in Social Sciences Research Journal – Vol.7, No.8
Publication Date: August 25, 2020
DOI:10.14738/assrj.77.8779.
Hamid, N. B. A., Hassim, M. H., & Aziz, T. N. R. A. (2020). A Non-Adversarial Dispute Resolutions: Studying Of Japanese Non-Litigious
Country And Society. Advances in Social Sciences Research Journal, 7(8) 188-201.
A Non-Adversarial Dispute Resolutions: Studying Of Japanese Non- Litigious Country And Society
Nor’Adha Bt Abdul Hamid
Faculty of Syariah and Law, Kolej
Universiti Islam Antarabangsa Selangor,
Bandar Seri Putra, Kajang Selangor, Malaysia
Mohamad Hafifi Hassim
Faculty of Syariah and Law, Kolej
Universiti Islam Antarabangsa Selangor,
Bandar Seri Putra, Kajang Selangor, Malaysia
Tuan Nurhafiza Raja Abdul Aziz
Faculty of Syariah and Law, Kolej
Universiti Islam Antarabangsa Selangor,
Bandar Seri Putra, Kajang Selangor, Malaysia
ABSTRACT
In line with the changing of times, the transition from small-scale trade
to global trade has invoked changes to the existing trade system to a
more challenging one. This has made the impact being felt by the
consumers. Users are getting more repressed in many forms of trade
that are becoming more and more challenging besides testing the
intellectual capabilities of consumers. The latest trading trend needs a
change in its dispute resolution system to become more efficient and
meet the demands of consumers and traders. The current trade scenario
as well as the rise in matters of consumerism have made it crucial to
outline a perfect and complete set of laws that is capable to protect the
consumers’ rights and solve disputes that are usually arise in consumer- trader contract matters, that is sometimes unexpected. The laws formed
can be beneficial if transparent and able to protect consumers involved
in trade with traders, both nationally and internationally. This research
aimed to discuss on the Japanese non-adversarial dispute resolutions
which popularly known as non-litigious country and society. Being a
library based-research, reference will be made to relevant authoritative
texts, case studies, and applies the method of literature review through
content analysis of documents. Overall, this paper finds that, without
looking at the different theories introduced, until today, the Japanese
still believe that disputes should not occur. If disputes do occur, the
resolution is through a mutual resolution agreement contract. In this
situation, they will give honest effort to compromise or resolution that
they mutually agree upon.
Keywords: Dispute, resolution, adversarial, non-adversarial, law and claims.
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Hamid, N. B. A., Hassim, M. H., & Aziz, T. N. R. A. (2020). A Non-Adversarial Dispute Resolutions: Studying Of Japanese Non-Litigious Country And Society.
Advances in Social Sciences Research Journal, 7(8) 188-201.
INTRODUCTION
Related in-depth studies conducted by scholars have outline a set of laws and dispute resolution
system that is efficient in protecting consumers in any trade disputes they are involved in. As
discussion on globalization issues and requirements of the best consumer trade dispute resolution
mechanism is done, most of the discussion highlights the best practices of developed countries in
the subject matter. Countries such as Australia, United Kingdom, United States of America, Japan,
Hong Kong, Singapore and India have advanced and time-tested dispute resolution systems that
have been proven to be efficient from time to time and can be a benchmark to Malaysia.
Nonetheless, Malaysia needs to adapt the system according to a personalized mould and needs
based on the difference in civilization, humane values, social structure, local community scene and
behavior traits that exist in Malaysia.
The dispute resolution mechanism and the related laws exist due to the support of parties that make
an effort to move and expand them according to the customs and local social situation. By
implementing practices and mechanisms used in the West without any screening may caused
negative consequences to the local consumers since the function and method of these practices are
different from the needs of the local community. The said model and mechanism need consistent
re-evaluation via transformation that can enhance the customs and social values of Malaysians.
For most Asian countires, not all concepts and models taken from Western countries are effective
when implemented in their own countries even though in the West, they are widely popular.
Therefore, it is important for every relevant party to understand the complex relationship between
the formal laws and the informal ones in dispute resolution. The understanding of the development
of formal litigation as well as the various ADR mechanisms is closely related to the societal situation
that is becoming more complex and modernized. The community too shared the effects of both and
is slowly transitioning from formal litigation to a less formal system which is the dispute resolution
mechanism or ADR according to the time and need of the dispute. For example, in 1994, the Court
Dispute Resolution scheme or CDR is introduced in Singapore.
This court dispute resolution scheme allows any party in the dispute to apply for a resolution
conference chaired by the District Senior Judge that is responsible of handling the CDR scheme.
Besides the statement that stated the offered service under the CDR scheme is free, another benefit
of using this scheme is that the results of the comments given by the judge regarding the case merit
can be used by the involved parties. This serves as a logical sign to all parties whether they have a
case and have a possibility of winning or not. This enables them to revise their positions and help
them to decide whether they want to proceed for a full trial or not.
THE JUSTICE SYSTEM IN JAPAN
It cannot be denied that the Japanese have little faith in their litigation sytem and the trial
proceedings that they have to go through in court. The community here prefers to solve their
disputes through the conciliation or mediation methods. Japan has a history of being known as a
community that believes in and hold on to a non-adverserial dispute resolution method. Litigation
is an unfamiliar method to them until foreign countries have managed to influence and introduce
them to the system during the late 1800s. Until today,[1] Japan is still known as a non-litigious
country and society. This statement is disputed by a Professor Haley from Washington University
in his controversial article entitled ‘The myth of the reluctant litigant’.[2]
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He stated that the Japanese are like the Americans who are litigious but they are forced to solve
their disputes outside of the judicial system. This is because cases that are intended to be brought
to court require a lot of money and time consuming. In fact, it is hard for them to be enforced. This
opinion is still being debated in America and other countries in the Pacific region.
SMALL CLAIMS PROCEDURE
Japan has introduced the Small Claims Procedure that is enforced on 1st of January 1998.[3] This
procedure has taken up the approach of the American Small Claims Procedure and replicates it. All
small claims cases will be tried in a summary court. The purpose of its establishment is to reduce
the stress on the cases filed in the summary court which involves cases of deposit and credit
claims.[4] The court considers the demand of a faster, comfortable and effective process. The main
purpose of its establishment is to increase the access to justice through the formation of bodies
similar to the court for the people or in other words, a people’s court. This enables the public who
has little knowledge of the law becomes the main party in the dispute resolution process.
Among the categories of dispute being resolved through the small claims procedure such as sale
goods claims, collateral claims involving the landlord and tenant, interest payment and part-timers’
salary and car repair payment claims for cars involved in road accidents. The advantages of the
Small Claims Procedure include its simplified method, fast resolution and low in cost. Compared to
the regular prosedur or ‘tsujo-sosho’, the proceedings process can be done in only one (1) day only.
The involved parties such as the plaintiff, defendant and the attorneys appointed by both parties
and witnesses will meet to resolve their issues at a Round Table Court. There are three (3)
requirements that allow a case to be filed as a small claim, as follows:[5]
1. Article 368(1) Civil Procedure Code provides that the amount for claim must not be more
than 600,000 yen.
2. Article 368(2) Civil Procedure Code provides that the parties making the claim must submit
a statement for trial.
3. Article 368(3) Civil Procedure Code provides that the plaintiff is not allowed to file more
than ten (10) actions a month at the same summary court.
With these three (3) requirements at least the small claims proceedings will not be similar to the
the regular proceedings during trial in the summary court. The main matter stressed in the small
claims procedure is that it limited to monetary claims only. Non-monetary claims even with a value
less than 600,000 yen are not allowed to undergo this procedure. Meanwhile, the third requirement
imposed aims to provide rqual rights for individuals in need to use the procedure.
The claim limit imposed functions to restrict big companies from monopolizing and misuse the
small actions procedure for personal gain, especially involving financial institutions that give out
loans to consumers. The plaintiff will be charged of the filing fee that is seen as reasonable and
affordable. Proceedings will be conducted for one (1) day requires both parties to present their
respective documents and witnesses. They are also allowed to present any related documents and
evidence before the proceeding dates. Judgement made is binding and cannot be appealed to any
courts unless a judgement protest at the same summary court where the small claims procedure
proceedings is held.[6]
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Hamid, N. B. A., Hassim, M. H., & Aziz, T. N. R. A. (2020). A Non-Adversarial Dispute Resolutions: Studying Of Japanese Non-Litigious Country And Society.
Advances in Social Sciences Research Journal, 7(8) 188-201.
The effectiveness of the Japanese Small Claims will cause the increase in the number of filed cases
receive a positive response every year since 1998 until 2003. This shows the increase in the number
of individuals in the Japanese society who believe in case resolution through the litigation system
that they are not comfortable with before this. Most cases are tried without the assistance of the
appointed attorney. 94.9% cases are brought into trial without appointing a lawyer to represent or
through the concept of DIY.[7] This scenario showed that a Japanese society wanted a resolution
approach that is more consensual, harmonious and able to uphold the reputation of both parties.
Even though the procedure showed effectiveness in implementation in Japan but there are a few
disadvantages identified. Through it, the Japanese judicial system becomes more efficient and gains
the confidence of the community that has little knowledge of litigation via dialogue-styled hearings,
intensive hearings and collective hearings. Nonetheless, there are still a few disadvantages that
must be solved in order to ensure the posterity of this procedure. Among the disadvantages of the
procedure are:[8]
First – Mental Pressure
In the small claims litigation, the disputed parties must resolve their dispute in a one-day trial. For
less than expert litigants in matters of civil law and its practices, they will find it hard and tiring to
go through with the proceedings even when the court that consists of clerks and judges use simple
words and not legal jargons. They will also feel alarmed and anxious with the public in the gallery
while the trial is going on. Japanese courts allow the trial to be conducted openly so that the
community can be present and evaluate their justice system.
However, this arrangement has received protest from several parties that stated the permission to
listen to the case must be asked to the litigants. The stressful situation too can be felt when the losing
party in the proceedings are not allowed to appeal and refile the case at any other court. This causes
certain disputed parties to undergo the regular proceedings due to the risk of them not able to re- appeal. In the regular proceedings, they are allowed to make an appeal if lost.
Confusing and inaccurate facts
Since the time provisioned is too short, there is a possibility that the disputed parties will not reveal
the whole truth or give sufficient documents. Whether they wish to win or to hide relevant facts
related to the time provisioned is not known. The desperation of adhering to the time limit causes
that not all of the facts of the case being presented.
Third – Serious disputes
Complicated disputes are not suitable to be resolved using this process. It becomes complicated
since it is time consuming to present all the facts and evaluate the documents presented or calling
too many witnesses to be interrogated. There is a possibility that they require an opinion of a
specific expert to explain an issue more clearly or the judge in session needs to visit the place of
occurrence in case there is a counter claim by the defendant. Due to this restricted condition, the
access to justice is still a major problem.
Openness
The procedure to switch trials of a case through the small claims procedure to a regular procedure
in court can cause problems to the plaintiff. The plaintiff will suffer loss in time and money more
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than expected since their case is switched under the orders of the judge or a request made by the
defendant. This is a common scenario in the small claims procedure and the case to be having
problem during the process of resolution.
Issues with the judge
The judge that is handling the small claims procedure is usually a conservative and experienced one.
Therefore, they are potentially to recommend conciliation without giving the needed judgement by
the plaintiff when it is clear that the plaintiff should win.
Geographical issues
The location of the court that is far away from the residences of the disputed parties will cause time
and cost issues to both parties.
Claim amount
The claim value that must not be more than 600,000 yen causes difficulties to the disputed parties
especially in cases of returning the deposit paid for house purchase that may be more than that
value.
Cross/counter action
The provision of Article 369 of the Small Claims Procedure causes problems since the time needed
to hold a trial session for a counter claim takes up more than the one-day small claims proceedings.
Objections
Without an appeal process being provisioned under the Small Claims Procedure, it is still
permissible for any parties to present their objection on the judgement given that may cause
confusion on the basis of its decision is made. This causes the objection process to be conducted in
the same court and judged by the same judge. If no new evidence is presented, the re-trial of the
same case by the same judge may lessen the substance of the case.
JAPAN’S ALTERNATIVE DISPUTE RESOLUTION (ADR) AND JUSTICE THEORIES
The community in Tokugawa, Japan (1603-1867) is divided into four social classes. The hierarchy
is as follows:[9] samurai-bureaucrat, farmers, artists and traders.The samurais are the head of the
four class categories.[10] The farmers, artists and traders must respect the samurais and show their
loyalty as well as forbidden from behaving indecently to the samurais.[11] In this organized society,
they are exposed to the belief that disputes are morally wrong. It has become the responsibility of
those who are more knowledgeable and with authority in the society to maintain peace in their
territory or area so that disputes does not happen easily. If a dispute occurs, it will be resolved in
the best possible way. During the contemporary age in Japan, the social class hierarchy is replaced
with a vertical structure based on a relative status between any two individuals.
The concept of a vertical society is known as ‘tate shakai’ and it indirectly opens up more space for
the Japanese to interact with one another.[12] Every individual will placed himself as a relative to
another based on age, gender, education and occupation and this is seen as a determinative
situation. This social hierarchy is actually being formed based on the teachings of Confucianism and
Buddhism that stress on the responsibility of harmonizing the social loves of the local community.
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Hamid, N. B. A., Hassim, M. H., & Aziz, T. N. R. A. (2020). A Non-Adversarial Dispute Resolutions: Studying Of Japanese Non-Litigious Country And Society.
Advances in Social Sciences Research Journal, 7(8) 188-201.
They believe in a consensuous concept and peace among individuals.[13] This can be realized with
ADR and not through a win-lose situation of the litigation system.
Based on the statement given by Joseph W.S Davis,[14] there are three (3) main theories that can
explain the reason the litigation trial process rarely takes place in Japan. The theories are as follow:
a. The Japanese are a race-based society and they see anything controversial as negative and
bad per se. This theory is based on a sociological perspective.
b. This theory exists to counter the first theory. They think litigation should be avoided since
the system restricts the access of the public to the court since there are many challenges
posed by the system created by the institution itself.
c. This theory is related to the availability of empirical information that can be used by both
parties, the plaintiff and defendant to foresee the results if the case is brought into court.
They wrill choose a resolution between two disputed parties compared to a trial process in
court.
The situation in Japan prolonged until the 70s wherein they dislike litigation based on their strong
desire to avoid any confrontation in any way possible. The belief of their forefathers that they
inherited make them believe that disputes is a threat to the main fundamentals of harmony or ‘wa’,
and destroys the social arrangement and system by turning the compromising values as impossible
to achieve and non-existent. This is further supported by their faith in Confucioanism that teaches
societal values such as ‘giri’ which requires all members of the society to comply their obligations
to one another. For them, systems formed such as litigation threatens the long-term relationship of
the two disputed parties. Meanwhile, Port has identified and divided four (4) different theories[15]
that explains the reason the Japanese do not like the litigation process in resolving any disputes
between them. The theories are as follow:
First – The Traditionalist Theory
According to Kawashima, the influence brought by the teachings and old doctrines of Confucian has
influenced this traditional theory. He believes in a harmonious social relationship that has managed
to build a societal culture in which disputes should not occur and can be avoided. If disputes still
occur, they must try to resolve it by making a mutual agreement. However, Kawashima admits that
the transformation on the familial life of the Japanese and weak social control have caused the
collapse of the long-maintained social harmony. Indirecly, this has change their attitudes toward
dispute resolution.
The Revisionist Theory
This theory rejects the traditional theory above. They believed that the delay in the trial process at
court is due to the civil procedure laws and lack of judge in courts, the cost in handling court
proceedings, the inefficiency in enforcement and the authority given as well as the government’s
policy that restricts the number of lawyers admitted into the Training and Law Research
Institute.[16] These issues have been pointed out by Haley who acted as a representative to the
revisionists.
The Rationlist Theory
The scholar for this theory used the rational method to instate their theory. Their believe that the
Japanese society understands the state of their legal system well and thus, believe in the best choice
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for resolution is through mutual agreement, rather than wasting time and energy by going through
the litigation process. They opined that rational litigants will solve any case and issue of dispute
outside the court since they are already aware of the effects of litigation toward them. In fact,
litigation does not bring any benefits to them if proceed.[17]
Informalist Theory
The scholars who came up with this theory believed that the legal responsibility in Japan is informal.
Due to this fact, therefore, the Japanese believe that the law used is to repress the society and begin
to create social pressure among them. Scholars who supported the informalist theory viewed ADR
being used to find opportunities by certain parties that are responsible solely to gain popularity and
defend their authorities.[18]
Based on the results of the four (4) theories brought by scholars on the legal system in Japan, it can
be concluded that these theories are somewhat rather, true and are reasonable in different
perspectives, especially in explaining the importance of the ADR system in Japan. The theorists have
successfully contributed several ideas and important issues to further improve the legal system in
Japan. However, without looking at the different theories introduced, until today, the Japanese still
believe that disputes should not occur. If disputes do occur, the resolution is through a mutual
resolution agreement contract. In this situation, they will give honest effort to compormise or
resolution that they mutually agree upon, i.e. the process of ‘jidan’.
According to Joseph W.S Davis,[19] more than 95 percent of disputes in Japan are solved through
negotiation and compromise. However, the method is not able to successfully used to solve all types
of disputes whereby they are parties who requested resolution via conciliation or ‘chotei’ or even
through mediation or ‘assen’. The difference between these two methods are based on the degree
of involvement of an appointed third party to participate in the resolution process. Based on the
system created by the Japanese, conciliation uses an active middleman to give any recommendation
to resolve the dispute faced. The third party acts as a middleman that has full responsibility to
resolve the dispute, legally or morally. In the mediation process, the third party acts as a middleman
that stimulate discussion between the two disputed parties in the effort to achieve mutual
resolution. They may make any recommendation that may help the two parties but does not
pressure in order to achieve a resolution to the said difference of opinion between the two. The
mediation process is conducted in an informal environment compared to conciliation.
However in the two scenarios, both disputed parties are not required to accept all the
recommendations made by the third party. Nonetheless, there is another resolution process that
can be used, discussion. This process is a by product of a formal conciliation and negotiation
processes. In this situation, the party who feels that they are wrongly treated or pressured unjustly
is allowed to obtain advice from related parties or institution like the bar council, local authorities
or other relevant parties, even the police if they can help, This situation usually occurs in accident
cases and some cases that involve medical claims. In another situation, there are disputes that
cannot be resolved with the aforementioned methods but only through litigation or arbitration
only. In Japan, if the dispute involves a foreign party or race, usually they will choose either
arbitration or litigation to solve the dispute. Below are several Alternative Dispute Resolution (ADR)
situation in Japan:
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Hamid, N. B. A., Hassim, M. H., & Aziz, T. N. R. A. (2020). A Non-Adversarial Dispute Resolutions: Studying Of Japanese Non-Litigious Country And Society.
Advances in Social Sciences Research Journal, 7(8) 188-201.
SETTLEMENT-IN-COURT OR ‘WAKAI’/COMPROMISE OR ‘JIDAN’
‘Wakai’ or resolution in court/cmpromise is a voluntary resolution in any dispute based on a
contractual agreement entered by both parties. ‘Wakai’ is different than conciliation whereby this
process begins with a judge during a trial of a dispute. The judge provides recommendation at any
time during the trial.[20] However, the compromise procedure can be changed to a regular trial
process at any time of the proceedings and the judgement made can be enforced and binding to the
two disputed parties. Basically, ‘wakai’ combines litigation and mediation[21] whereby the process
begins with a case trial in court until at one level, it will be transferred to a resolution procedure
that uses a combination of legal perspective such as consultaion and mediation.
CONCILIATION-IN-COURT OR CHOTEI’
This conciliation term refers to the agreement made between two disputed parties that is simplified
with the involvement of the District Court.[22] However, the term is used in a technical situation as
follow:[23]
i. The institution and overall conciliation system,
ii. The conciliation procedure,
iii. The conciliation action,
iv. The agreement substance or the compromise included in writing,
v. The mutual agreement of both disputed parties in the agreement.
Basically, ‘chotei’ represents the prelitigation procedure that is conducted with a regular summary
and the lower court. According to the procedure, the dispute will be resolved through negotiation
by the two parties with the help of a neutral facilitator that will assist the two parties to reach a
resolution. The court will appoint a committee member that are usually joined by a judge who will
chair it, one or two conciliators or commissioners, or sometimes, a judge only.[24] The other court
staff appointed by the Supreme Court and given relevant training. Meanwhile, the conciliator or
commissioner must be between 40 and 70 years old, qualified as a lawyer, have the knowledge and
expertise as well as having useful experience in resolving the dispute or experience in living with a
wide variety of community members.[25]
A commissioner will serve for two (2) years and can be re-appointed by the Supreme Court for an
agreed period. The Japanese Government views the commissioner as important and encourages
conciliation by organizing various training and related courses for them.[26] There is a variety of
conciliation categories in Japan including one for family (kaji chotei) and civil (minji chotei). Both
conciliation categories are regulated by statutes such as the Civil Conciliation Act (1951), the Law
For The Determination of Family Affairs (1974), the Labour Union Law (1949), the Labour
Relations Adjustment Law (1946), the Pollution Dispute Settlement Law (1970) and the
Construction Business Law (1949). Based on the provision of ‘mutual concession’ plays an
important role in the conciliation processs in Japan, whether it involves civil or family cases. Since
the situation is different compared to the ADR theory used by the West which gives importance to
creative solution that ensure the needs and the interests of the disputed parties are protected rather
than the mutual concession one.[27]
ARBITRATION OR ‘CHUSAI’.
The Japanese arbitration system is modern and similar to the arbitration system in Australia,
Germany and the United States of America. The arbitration system in Japan is divided into two (2
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categories which are an artibritation between two parties in Japan and arbitration involving a
Japanes and an external or foreign party. This situation is stated in Section 8 (Articles 786 until 805)
of the Civil Procedure Code that provide a basic framework only and therefore, are subjected to
several weaknesses. Among the weakness found in the provision of Articles 788 and 789 is in the
statement
“which it provides for two arbitrators in the absence of an ‘arbitrator selection’
provision in the parties’ arbitration agreement”.[28]
Due to the weakness found in the said provision, the arbitration is monopolised widely in different
industries for cases such as cases involving construction, environment, labour force and
commercial. The method provided for every different aspect has assisted in adding to the existing
provision in the Civil Procedure Code. Besides, this method is more effective since it is drafted to
handle dispute issues in different aspects of industries. Among the main aspects that use arbitration
in resolving disputes are:
Arbitration in the Construction Industry
The arbitration in the construction industry is enforced under the Construction Industry Law. [29]
The law becomes a supplement and enhance to the arbitration scheme provided under the Civil
Procedure Code by providing two (2) inspection bodies or parent body operated by the Ministry of
Construction and the local bodies established by all the departments.[30] The arbitrating panel is
appointed by the parent or local bodies. The panel consists parties such as lawyers and two (2)
construction. The appointed panel will give full power to organize a case hearing and made an
inspection to the case facts and dispute issues at the construction area, before any adjudication
process can be carried out. [31]
Environmental Arbitration
The arbitration involving pollution to the public is handled under the provision of the Public
Pollution Dispute Settlement Act[32] The provision provided acts as a supplement to the Civil
Procedure Code and enforced against seven (7) pollution case as below; air, water, land, noise, smell,
earthquake and land sedimentation. This Act has also established two (2) bodies, the parent and
local bodies. The arbitration panel appointed is responsible to issue a related order such as the
injunctive relief, besides they are also authorized to obtain any relevant evidence from any
parties.[33]
Labour Dispute Arbitration
The arbitration for any labour dispute among the management and labour union is enforced under
the Labour Relations Adjustment Law.[34] The Act has established a (1) body consists of
representatives of the management, labour and the public. The arbitrating panel will be appointed
among these body members and also members appointed via special methods.[35]
Commercial Arbitration
The Commercial Arbitrator at the international level is controlled by the Japan Commercial
Arbitration Association or JCAA and the Japan Shipping Exchange that is known as the Tokyo
Maritime Arbitration Commission.[36] For the Japan Shipping Exchange, the overall arbitration
cases involved maritime or shipping disputes[37] They are authorized to conduct a maritime
arbitration proceedings based on the provision provided by the Rules of Maritime Arbitration of the
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Hamid, N. B. A., Hassim, M. H., & Aziz, T. N. R. A. (2020). A Non-Adversarial Dispute Resolutions: Studying Of Japanese Non-Litigious Country And Society.
Advances in Social Sciences Research Journal, 7(8) 188-201.
Japan Shipping Exchange that functions as a supplement to the Civil Procedure Code. For the JCAA
established in 1950 under the Chamber of Commerce and the Ministry of International Trade and
Industry, it is authorized to hold arbitration, conciliation and mediation proccedings that are
involved in commercial disputes.
[38] JCAA is proactively in a collaborative agreement with other foreign countries such as the
American Arbitration Association or AAA. The JCAA is also providing a list of qualified arbitrators
and most of them are Japanese which is around 90% of the overall 100 arbitrators named.[39]
Besides, there are those who are qualified from America, Germany, Britain, France and other foreign
countries. The appointed individuals are between 50 and 70 years old and the biggest group which
is almost 60% of the appointed arbitrators is lawyers. The others are qualified as law professors,
and some of them are successful and highly calibred businessmen and there are retired judges
appointed as arbitrators too.
The proceedings conducted after a party is required to submit their written application to JCAA,
provided under the JCAA Commercial Arbitration Rules. Among others, the written request must
include, inter alia, the arbitration claims under the provision and laws of JCAA, reference must be
made to the arbitration agreement, applied relief, summary of the dispute faced, and also the basis
of the claims and the forms of evidence. Together with the submitted request, the claiming party
must provide the power of attorney by putting down a signature as a sign of agreement of
appointing any of the attorneys in the the list to represent them, together with the application
payment and administrative fee, providing a copy of the arbitrator agreement or the related
arbitrating clause that provides authority to the JCAA as an appropriate forum to solve the dispute
faced.
The JCAA, then will inform the claiming party regarding the claim forum appointment acceptance
and the respondents have up to seven (7) weeks to file any response and up to nine (9) weeks to
file any counter claims. If there is any amendment made, the Act allows the amendments to be made
if the arbitrating tribunal has not been conducted. However, this situation may change according to
the tribunal agreement if the amendments made after the tribunal is held. The parties involved in
the proceedings are allowed to appoint one or more arbitrators according to the agreed appointing
method. If the JCAA is not informed of the appointment, or both parties fail to achieve a mutual
agreement on the appointment of an arbitrator, hence JCAA will appoint an arbitrator according to
their own discretion. The arbitration proceedings will be conducted based on the submission of the
agreement document and related evidencing document by both parties involved in the dispute. If
the document is not submitted, there are three (3) phases of the proceedings that will be held which
are:
i. The presentation of facts and justifications
ii. The inspection on witnesses and existing documents
iii. The presentation of views and opinions
In certain situation during the proceedings, the tribunal has the right to recommend a resolution to
both parties.[40] The arbitrator acts as a conciliator and mediator to facilitate resolution and
regularly meet and discuss with the two parties ex parte. Until it is completed and the two parties
agreed with the mutual terms, therefore the tribunal proceedings is considered to be completed.
Rule 48 provided that the tribunal must give out an award in four (4) weeks since the completion
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Advances in Social Sciences Research Journal (ASSRJ) Vol.7, Issue 8, August-2020
of the formal trial proceedings unless the issue is too complex wherein the award will be given out
in eight (8) weeks. The provision under the JCAA Commercial Arbitration Rules too stated that the
arbitrators can act as amiable compositeurs wherein they will make a decision and give out awards
based on the common principles of equity, justice principles and impartiality, compared when
including the substantive laws [41]. The decisions and awards given besides the proceedings
carried out are done in confidence and no reports will be made to state exactly the dispute is being
resolved. The award from the tribunal is a final decision and cannot be appealed based on the
decision merit made.
It can only be challenged and can be invalid on the reasons of procedural such as when there is a
party that is not represented legally and properly or if both parties are not listened in the arbitration
proceedings. According to Hanlon, arbitration is not a preferred choice by the Japanese society as a
resolution mechanism.[42] They have their own reasons and they see it as a litigation trial
proceedings, resolved with the involvement of a third party[43] which is the arbitrator. In a
domestic arbitration, the litigation becomes a main choice compared to the arbitration since they
opined that it is based on the uncertainties and lack of control in the aspects of the procedural [44]
Therefore, they become more confident in the court established by the government compared to an
institution seen as private deciders whereby cases decided are solely by a third party, unknown to
them.
The discussion showed several advantages and disadvantages of arbitration in Japan. The main
advantage is the proceedings and all arbitration sessions are conducted in a closed area and not
opened to the public. This is very crucial especially in the trading cases in order to protect the
confidentiality of the business. Another advantage is that there is highly potential element such as
flexibility. For example, the parties involved can choose the arbitrators wanted by them, stating the
certain procedures to be followed, placing standards and certain laws to be used. However,
according to Davis, in most issues arise, both parties still fail to compromise on the same situation
even though there is no provision that are flexible.[45] The stress on the making a fair decision for
both parties is also another advantage of arbitration in Japan. The JCAA is provided that the
arbitrator is authorized to make a decision regardless of the rules of law. The arbitrator must not
be binded to the substantive law in resolving the dispute but must include the fair decision made by
both parties.[46]
The situation is different for foreign parties who are involved in the arbitration proceedings in
Japan. They view the situation as an obvious weakness in the arbitration since they assume the
decision made cannot run from the evaluation on the available substantive law. Besides, they feel
that the tribunal is more interested in persuading the two parties to make their peace and agree to
resolve their dispute by neglecting the reasonable award.
Nowever, Katja Funken opined that the West still give negative commentary eventhouh the
situation occurred is alligned with the Japanese mentality.[47] Whereas, the weakness of the system
is the cost and time taken to resolve an arbitration that is seen similar to the litigation system. The
arbitrator quality is also disputed and make a comparison on the quality and competency possessed
by the judges in the litigation system. For example, the professors and lawyers act as an arbitrator,
although are experts about the law but are unsuitable to become a decision-maker as the judges are
already qualified.
Page 12 of 14
URL: http://dx.doi.org/10.14738/assrj.78.8779 199
Hamid, N. B. A., Hassim, M. H., & Aziz, T. N. R. A. (2020). A Non-Adversarial Dispute Resolutions: Studying Of Japanese Non-Litigious Country And Society.
Advances in Social Sciences Research Journal, 7(8) 188-201.
CONCLUSION
The discussion shows that a Japanese society wanted a resolution approach that is more consensual,
harmonious and able to uphold the reputation of both parties. Eventhough the procedure showed
effectiveness in Japan implementation, but there are a few disadvantages identified. Through it, the
Japanese judicial system becomes more efficient and gains the confidence of the community that
has little knowledge of litigation via dialogue-styled hearings, intensive hearings and collective
hearings. Nonetheless, there are still a few disadvantages that must be solved in order to ensure the
posterity of the procedure. Hence, until today, the Japanese still hold strongly on the belief that
every dispute must be resolved with a way that can preserve the harmonious relationship and the
reputation of the disputed parties. They believe in a consensuous concept and peace among
individuals. This can be realised with ADR and not through a win-lose situation of the litigation
system.
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