Enforcement of a Chinese Arbitral Award in Japan
(Osaka District Court, 25 March 2011)
FACTS
The Claimant, a Chinese company, obtained an arbitral award against the Respondent, a Japanese company, at the China International Economic and Trade Arbitration Commission. The Claimant followingly requested the Osaka District Court to make an enforcement decision to enforce the arbitral award against the Respondent's assets in Japan. The Claimant submitted (i) a copy of the arbitral award, (ii) a document proving that the contents of the copy are the same as the arbitral award, and (iii) a Japanese translation of the arbitral award under Article 46(2) of the Arbitration Act. Meanwhile, the Respondent appeared at the hearing but made no assertions under Article 45(2).
Japan and China are contracting states to the multilateral treaty "Convention on the Recognition and Enforcement of Foreign Arbitral Awards" ("New York Convention") and also concluded the bilateral treaty "Agreement on Trade between Japan and the People's Republic of China" ("Japan-China Trade Agreement"). Plus, there is domestic law, "the Arbitration Act" ("Act"), that came into effect in 2004. Therefore, the relationship among these applications became an issue.
Japan and China are contracting states to the multilateral treaty "Convention on the Recognition and Enforcement of Foreign Arbitral Awards" ("New York Convention") and also concluded the bilateral treaty "Agreement on Trade between Japan and the People's Republic of China" ("Japan-China Trade Agreement"). Plus, there is domestic law, "the Arbitration Act" ("Act"), that came into effect in 2004. Therefore, the relationship among these applications became an issue.
FINDINGS
The judge held:
Upholding the request.
(i) The Conventions and the Act
"[I]t should be understood that the New York Treaty and the Japan-China Trade Agreement will be applied to the recognition and enforcement of the arbitral award, considering that the arbitral award is a Chinese arbitral award."
(ii) The New York Convention and the Japan-China Trade Agreement
"The Article 7(1) of the New York Convention states that '[t]he provisions of the present Convention shall not affect the validity of multilateral or bilateral agreements concerning the recognition and enforcement of arbitral awards entered into by the Contracting States nor deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon.'. This is understood that if the contracting parties to the convention have entered into other conventions on the recognition and enforcement of arbitral awards, the relationship between the New York Convention and those other conventions is, so to speak, general and special law, and other conventions would be applied."
(iii) The Japan-China Trade Agreement
"The Japan-China Trade Agreement will be applied to the enforcement of the arbitral award, but Article 8(4) of the agreement states that 'the parties are obliged to enforce the arbitral award by the relevant organisation in accordance with the conditions stipulated by the laws of the country where the enforcement is required.' Therefore, the 'conditions stipulated by the laws' of Japan, which is the 'country where the enforcement if required' shall apply". "In Japan, the Arbitration Act (Chapter 8) exists as a law that stipulates the conditions for the enforcement of arbitral awards, 45(1) of the Act stipulates that an enforcement decision under Article 46 is required for the enforcement of arbitral awards, and 46(7)(8), and 45(2) stipulates the requirements for enforcement decisions. In the end, the requirements for enforcement decisions for the arbitral award should be decided based on these provisions under the Arbitral Act."
Upholding the request.
(i) The Conventions and the Act
"[I]t should be understood that the New York Treaty and the Japan-China Trade Agreement will be applied to the recognition and enforcement of the arbitral award, considering that the arbitral award is a Chinese arbitral award."
(ii) The New York Convention and the Japan-China Trade Agreement
"The Article 7(1) of the New York Convention states that '[t]he provisions of the present Convention shall not affect the validity of multilateral or bilateral agreements concerning the recognition and enforcement of arbitral awards entered into by the Contracting States nor deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon.'. This is understood that if the contracting parties to the convention have entered into other conventions on the recognition and enforcement of arbitral awards, the relationship between the New York Convention and those other conventions is, so to speak, general and special law, and other conventions would be applied."
(iii) The Japan-China Trade Agreement
"The Japan-China Trade Agreement will be applied to the enforcement of the arbitral award, but Article 8(4) of the agreement states that 'the parties are obliged to enforce the arbitral award by the relevant organisation in accordance with the conditions stipulated by the laws of the country where the enforcement is required.' Therefore, the 'conditions stipulated by the laws' of Japan, which is the 'country where the enforcement if required' shall apply". "In Japan, the Arbitration Act (Chapter 8) exists as a law that stipulates the conditions for the enforcement of arbitral awards, 45(1) of the Act stipulates that an enforcement decision under Article 46 is required for the enforcement of arbitral awards, and 46(7)(8), and 45(2) stipulates the requirements for enforcement decisions. In the end, the requirements for enforcement decisions for the arbitral award should be decided based on these provisions under the Arbitral Act."
Miyake Law | Debt Collection in Japan