Law concerning Procedure for
General Pressing Notice and
Arbitration Procedure
(Law No. 29, April 21, 1890)
(Extract)
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| BOOK |
I |
GENERAL PROVISIONS |
| Article 1 |
(Mutatis mutandis application of the law and regulations
relating to civil procedure) |
 Regarding
the procedure for general pressing notice and the arbitration
procedure, the provisions of the law and regulations relating
to civil procedure shall, except as otherwise provided, apply
mutatis mutandis insofar as they are not contradictory with the
nature thereof.
(middle part omitted)
| BOOK |
VIII |
ARBITRATION PROCEDURE |
| Article 786 |
(Arbitration agreement) |
An
agreement to submit a dispute to one or more arbitrators shall
be valid only where the parties have a right to make a compromise
with regard to the subject matter in dispute.
| Article 787 |
(Arbitration agreement for future dispute) |
An
agreement to submit a future dispute to arbitration shall not
be valid unless it relates to a specific legal relationship and
a dispute arising therefrom.
| Article 788 |
(Appointment of arbitrators) |
In
the absence of any agreement as to the appointment of arbitrators,
each party shall appoint one arbitrator.
| Article 789 |
(Method of appointment of arbitrators) |
1.Where
both parties are entitled to appoint arbitrators, the party initiating
the arbitration procedure shall notify the other party in writing
of the arbitrator he has appointed, and call upon the latter to
do the same within a period of seven (7) days.
2.In
default of appointment of an arbitrator within the said period,
the competent court shall, upon the application of the party initiating
the arbitration procedure, appoint an arbitrator.
| Article 790 |
(Binding effect of appointment notice) |
A party
having appointed an arbitrator shall be bound by his appointment
in relation to the other party after he has notified the other
party of such appointment.
| Article 791 |
(Appointment to fill vacancies) |
When
an arbitrator appointed otherwise than by the arbitration agreement
dies, otherwise goes out of office, or refuses to accept or serve
the office, the party who has appointed him shall, upon the demand
of the other party, appoint another arbitrator within a period
of seven (7) days. In default of replacement within the said period,
the competent court shall, upon the application of the demanding
party, appoint an arbitrator.
| Article 792 |
(Challenge of arbitrator) |
1.The
parties may challenge an arbitrator on the same grounds and conditions
as they might challenge a judge.*1
2.Apart
from the provisions of the preceding paragraph, the parties may
challenge an arbitrator appointed otherwise than by the arbitration
agreement, if he unduly delays the performance of his duties.
3.The
parties may challenge an arbitrator who is legally incapable,
deaf, dumb, or deprived of, or suspended from the exercise of,
his civil rights.
| Article 793 |
(Loss of effect of arbitration agreement) |
The
arbitration agreement shall be void unless provisions are made
therein by mutual consent of the parties against the following
contingencies:
| (1) |
Where, specified persons being appointed arbitrators in
an arbitration agreement, any of the arbitrators dies, otherwise
goes out of office, refuses to accept the office, cancels
the arbitrator contract, or unduly delays the performance
of his duties;
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(2) |
Where the arbitrators notify the parties that their opinions
are equally split. |
| Article 794 |
(Procedure for making award) |
1.The
arbitrators, before making an award, shall hear the parties, and,
insofar as they deem it necessary, investigate the facts that
formed the cause of the dispute.
2.In
the absence of the agreement between the parties on the arbitration
procedure, the arbitrators shall determine such procedure at their
own discretion.
| Article 795 |
(Examination of witnesses, experts) |
1.The
arbitrators may examine witnesses and experts who voluntarily
appear before them.
2.The
arbitrators have no power to administer an oath to any witness
or expert.
| Article 796 |
(Cooperation of the competent court) |
1.Any
act which the arbitrators consider necessary for the making of
the award, but which they have no power to perform shall, on the
application of the parties, be performed by the competent court,
provided that the court deems such application proper.
2.The
court which ordered a witness or an expert to give testimony or
expert opinion shall, in case he refuses to do so, have the power
to make a decision as may be necessary.
| Article 797 |
(Plea of illegality of arbitration procedure and power
of arbitrators to continue) |
The
arbitrators may continue the arbitration procedure and make the
award, even where a party asserts that the arbitration procedure
is not permissible, or, in particular, that no legally valid arbitration
agreement was concluded, that the arbitration agreement has no
relation to the dispute to be decided, or that the arbitrators
have no power to perform the office.
| Article 798 |
(Making of award by several arbitrators) |
When
the award is to be made by several arbitrators, it shall be decided
by a majority vote of the arbitrators, unless otherwise provided
in the arbitration agreement.
1.The
award shall bear the date on which it was drawn up, and shall
be signed and sealed by the arbitrators.
2.Authentic
copies of the award signed and sealed by the arbitrators shall
be served on the parties, and the original thereof, with certificates
of service, shall be deposited with the competent court.
| Article 800 |
(Effect of award) |
The
award shall have between the parties the same effect as a final
and conclusive judgment of the court.
| Article 801 |
(Action for setting aside the award) |
1.Application
to set aside the award may be made in any of the following cases:
|
(1) |
Where the arbitration procedure was not permissible;
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(2) |
Where the arbitration award ordered a party to do an act
prohibited by law;
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| (3) |
Where a party was not represented in the arbitration procedure
in accordance with the provisions of law;
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| (4) |
Where a party was not heard in the arbitration procedure;
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| (5) |
Where the award is not accompanied by reasons;
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| (6) |
Where there is any of the grounds for an action for a
new trial under Article 338, Paragraph 1, items (4) to (8)
of the Code of Civil Procedure.*2 |
2.The
award cannot be set aside on the grounds mentioned in Article
801, Paragraph 1, items (4) and (5), where otherwise agreed between
the parties.
| Article 802 |
(Execusion based on award) |
1.Execution
by virtue of the award can be carried out only when such execution
has been declared permissible by an execution judgment.
2.The
foregoing execution judgment shall not be rendered where there
is any ground for making an application to set aside the award.
| Article 803 |
(Action for setting aside the award after the rendering
of execution judgment) |
After
the execution judgment has been rendered, an application to set
aside the award may be made only on the ground stipulated in Article
801, Paragraph 1, item 6, provided that it is shown that the party
has been unable to plead in the previous procedure the ground
for setting aside the award without any fault on his part.
| Article 804 |
(Time limit for institution of action) |
1.In
the case mentioned in the preceding article, an action for setting
aside the award must be instituted within a peremptory term of
one month.
2.The
foregoing term shall begin to run from the day on which the party
has come to know the ground for setting aside the award, but not
before the execution judgment becomes final. After the expiration
of five (5) years from the day on which the execution judgment
becomes final, the action may not be instituted.
3.When
setting aside the award, the court shall also declare that the
execution judgment is set aside.
| Article 805 |
(Competent court of action in respect of arbitration procedure) |
1.The
court competent to entertain actions for the appointment of, or
challenge to, arbitrators, the termination of the arbitration
agreement, the disallowance of arbitration, the setting aside
of the award, or the rendering of the execution judgment shall
be the summary court or district court designated in the arbitration
agreement. In the absence of such designation, the summary or
district court, which would be competent in case the claim was
judicially made, shall have jurisdiction.
2.In
case there are two or more courts having jurisdiction under the
preceding paragraph, the court to which the parties or arbitrators
first resorted shall be competent.
| *1 |
Article 23 (Exclusion of judge) of the Code
of Civil Procedure
1.A
judge shall be excluded from performing his office in the
following cases: Provided that, in a case as mentioned in
item (6) of the below, this shall not preclude him from
performing his office as an entrusted judge by the entrustment
of another court:
| (1) |
In case a judge or his spouse or former spouse is
a party to the case or is related to a party to the
case as a co-creditor, co-debtor or a person bound
to make a reimbursement;
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| (2) |
In case a judge is or was a blood-relation within
the fourth degree of relationship, a relation by affinity
within the third degree of relationship to a party
or a relative to a party with whom he resides;
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| (3) |
In case a judge is the guardian, supervisor of guardianship,
or curator of a party;
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| (4) |
In case a judge acted as a witness or an expert
in the case;
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| (5) |
In case a judge is or was the representative of
or assistant to a party to the case;
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| (6) |
In case a judge participated in the arbitral award
in the case or in the decision of the previous instance
against which the appeal has been filed. |
2.In
case there is a cause for exclusion as prescribed in the
preceding paragraph, the court shall render a decision of
exclusion either on motion or upon its own authority.
Article 24 (Challenge of judge) of the Code of
Civil Procedure
1.Where
there are such circumstances on the side of a judge as may
prejudice the impartiality of decision, a party may challenge
him.
2.
Where a party has, before a judge, entered upon oral argument
or present a statement in preliminary proceedings for oral
argument, such judge may not be challenged, except where
the existence of a cause of challenge was unknown to the
party at that time or where a cause of challenge has arisen
thereafter.
|
| *2 |
Article 338 (Grounds for renewal of procedure)
of the Code of Civil Procedure
1.
A
conclusive and final judgment may be appealed against in
the form of an action for a new trial for any one of the
following grounds, except where the party has in a Koso-appeal
or in a Jokoku-appeal asserted it or knowingly has not asserted
it.
| (1),(2)
and (3) omitted. |
| (4) |
If a judge who participated in a decision was guilty
of an offence relating to his official duties in connection
with the case tried before him;
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| (5) |
If a party was, by a criminally punishable act of
another person, led to make confession or prevented
from producing a means of attack or defence which
may affect a judgment;
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| (6) |
If a document or any other object which was produced
in evidence and on which the judgment was based was
a forged or fraudulently altered matter;
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| (7) |
If the judgment was based on a false statement of
a witness, expert, or interpreter or a sworn party
or legal representative;
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| (8) |
If a civil or criminal judgment or any other judicial
decision or an administrative decision on which the
judgment was based has been altered by a subsequent
judicial or administrative decision;
|
| (9)
and (10) omitted. |
2
and 3 omitted. |
(provisional translation by JCAA)
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(C) Copyright by The Japan Commercial Arbitration Association.
All rights reserved.
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