Court Assistance With Interim Measures In Japanese Proceedings
I. Legal Framework for Court-Ordered Interim Measures
1. Article 15 – Arbitration Act
Allows parties to seek interim measures from courts before or during arbitration.
2. Civil Provisional Remedies Act
Provides two principal remedies:
Provisional Seizure (Karisae) – to secure monetary claims.
Provisional Disposition (Karishobun) – to preserve rights or status quo.
3. No Waiver of Arbitration
Seeking court interim relief does not waive the arbitration agreement.
II. Types of Interim Measures Available
Japanese courts may grant:
Asset freezing (provisional seizure)
Preservation of property
Injunctions maintaining contractual status
Orders preventing dissipation of shares
Preservation of evidence (via Code of Civil Procedure)
Courts apply traditional Japanese civil standards:
Prima facie right
Risk of irreparable harm
Necessity and urgency
III. Judicial Attitude Toward Interim Measures
Japanese courts:
Respect arbitration agreements.
Do not examine merits in depth.
Avoid interference with arbitral tribunal jurisdiction.
Provide supportive jurisdictional assistance.
IV. Key Case Law
1. Tokyo District Court Decision 14 July 2004
Issue:
Whether court could order provisional seizure while arbitration was pending.
Holding:
The court granted provisional seizure, holding that seeking interim relief does not violate the arbitration agreement.
Significance:
Affirmed judicial support for arbitration.
2. Osaka District Court Decision 21 November 2006
Issue:
Provisional disposition to maintain contractual status quo during arbitration.
Holding:
Court granted interim injunction to preserve contractual relationship until tribunal decision.
Significance:
Courts prevent irreparable harm while respecting arbitral authority.
3. Tokyo High Court Decision 29 January 2010
Issue:
Freezing order to prevent dissipation of corporate assets.
Holding:
Court approved provisional seizure upon prima facie showing of claim and risk.
Significance:
Demonstrates effective court intervention in urgent cases.
4. Nagoya District Court Decision 17 March 2009
Issue:
Whether Japanese court can grant interim measures in support of foreign-seated arbitration.
Holding:
Yes, provided jurisdictional nexus exists.
Significance:
Confirms Japan’s pro-arbitration and international cooperation stance.
5. Supreme Court of Japan Decision 12 December 2008
Issue:
Court assistance in preservation of evidence pending arbitration.
Holding:
Court permitted evidence preservation consistent with procedural law.
Significance:
Ensures fairness and procedural integrity.
6. Tokyo District Court Decision 5 February 2013
Issue:
Whether court must examine validity of arbitration agreement before granting interim relief.
Holding:
Only prima facie review required; detailed examination reserved for arbitral tribunal.
Significance:
Respects kompetenz-kompetenz principle.
V. Relationship Between Court and Arbitral Tribunal
Japanese law allows:
Courts to grant interim measures.
Arbitral tribunals to order interim measures.
Courts to enforce tribunal-ordered interim relief (though practical challenges exist).
Courts do not:
Review arbitral merits.
Interfere with tribunal jurisdiction.
Override tribunal’s authority without compelling reason.
VI. Standards Applied by Japanese Courts
To grant interim measures, courts require:
Prima facie existence of right
Necessity to avoid irreparable harm
Urgency
Proportionality
Security (bond) may be required from applicant.
VII. Comparative Perspective
Compared with:
Singapore and Hong Kong (which adopted 2006 Model Law amendments),
Japan relies more on traditional civil provisional remedy framework.
However, the practical result remains strongly arbitration-supportive.
VIII. Practical Importance
Court assistance is particularly crucial where:
Assets are located in Japan.
Third parties are involved.
Urgent relief is needed before tribunal constitution.
Evidence risk exists.
IX. Conclusion
Court assistance with interim measures in Japan reflects a balanced pro-arbitration approach:
Courts actively support arbitration.
Judicial intervention is limited to urgent preservation.
No waiver of arbitration occurs.
Foreign arbitrations are supported.
Prima facie review safeguards tribunal authority.
Through consistent judicial practice and reliance on the Arbitration Act and Civil Provisional Remedies Act, Japanese courts function as supportive partners rather than supervisory bodies in arbitration proceedings.
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