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The Japan Commercial Arbitration Association
|The Japan Commercial Arbitration Association (JCAA) held the "International Commercial Arbitration Forum 99" last November 1 in Tokyo. The Forum featured one of the most important elements of arbitration, "The Role of the Arbitrator in International Commercial Arbitration."
In addition to the management of arbitration, JCAA holds international seminars and symposiums every year that feature international commercial arbitration from various perspectives in order to promote understanding and use of arbitration in Japan. The "International Commercial Arbitration Forum 99" was funded by the Ministry of International Trade and Industry and supported by the Ministry of Justice, the Japan Federation of Bar Associations and six other organizations. Despite the bad weather, approximately 200 audience members gathered at the venue. Their backgrounds included legal professionals and university professors, as well as business people from legal, international and other related fields. The Forum was held free of charge to the audience.
At the Forum, Professor Yasuhei Taniguchi of Teikyo University coordinated the discussion presented by, and sometimes made among, three excellent guest panelists, Mr. Gerald Aksen, Thelen, Reid & Priest from New York, Dr. Marc Blessing, Bar & Karrer from Zurich, and Mr. Kazuo Ihara, Ihara and Ihara from Tokyo. Each panelist has a wealth of knowledge about and experience in international commercial arbitration.
Some of the readers of this article already know well the expertise of the excellent guest panelists. For those who may not, Mr. Gerald Aksen was former General Counsel of the American Arbitration Association and possesses ample experience acting as an arbitrator and representative in various international commercial arbitrations. Dr. Marc Blessing is Honorary President of ASA/Swiss Arbitration Association and also has plentiful experience being involved in many international arbitrations. In addition to the two overseas guest panelists who kindly accepted the invitation to come to Japan for the Forum, we had the honor of having Mr. Kazuo Ihara, Attorney of Ihara and Ihara, who has been quite actively involved in JCAA, ICC and other international arbitration proceedings. All three guest panelists and the moderator, Professor Taniguchi, very much impressed the audience with their practical and academic perspectives about the role of an arbitrator.
As Professor Taniguchi pointed out at the Forum, the quality of arbitration depends very much upon the quality of the arbitrator or arbitrators. The role of an arbitrator would be, therefore, one of the main concerns of not only those who are actually involved in the arbitration proceedings but also those who are considering the arbitration proceedings as a dispute resolution mechanism. JCAA considers that it is helpful for the promotion of arbitration in Japan to make such people to become familiar with the role of an arbitrator. That was the main reason for choosing the theme for the Forum.
For the purpose of reference and as a guideline, an issue list was distributed to the audience. The issue list was compiled by the moderator, the guest panelists and JCAA, and included such topics as Initial Phase ("Selection of an Arbitrator by the Parties"), Contracting Phase ("Accepting the Mandate as Arbitrator"), Proceeding Phase (such as "The Chairman's Duty to Set the Stage for the Procedure"), and Award Phase (such as "How should the arbitral tribunal deliberate and make an arbitral award?") One of the panelists described the list as fairly representative of the recent major issues in international commercial arbitration.
The Forum began with the opening address and introduction of the panelists by Mr. Norihiko Maeda, President, JCAA, then continued with guest remarks by Mr. Tatsuya Kugo, Deputy Director-General, International Trade Administration Bureau, Ministry of International Trade and Industry, and by Mr. Seiichi Fusamura, Director-General, Judicial System and Research Department, Ministry of Justice.
The format of the Forum took the style of a lively exchange of opinions, that is, the moderator first presented a topic to the panelists and requests one or more of the panelist(s) to present their thoughts on the topic. Then, the moderator elaborated on the topic based upon the thoughts so presented and requested the second panelist for his thoughts or, on some occasions, counter-argument to the discussion made by the previous panelist and so on. Then the moderator moved to the next topic. The moderator from time to time solicited questions from the audience and appointed a panelist to respond to the question right away.
This format, although it may be familiar in some countries, was rather new to a symposium of this kind in Japan, and was well appreciated by the audience. In addition, as the discussion made at the Forum placed emphasis on various practical aspects of arbitration, it presented a good opportunity for the audience to grasp an inside view to the real world of arbitration. As a matter of fact, the discussion was so lively and interesting that many in the audience stated after the Forum that the scheduled time for the Forum, which was only half a day, was not sufficient. This article briefly reports on some of the main discussions at the Forum. The reporter takes full responsibility for the content and text of this report.
Selection of an Arbitrator by the Parties
Relationship with Party - interests
It is generally accepted that one of the merits of arbitration is that it does not have some of the drawbacks of litigation. However, it was pointed out that there is a worldwide tendency that arbitration proceedings follow litigation proceedings. With regard to the comparison of arbitration to litigation, the difference in case load was mentioned. An arbitrator, unlike a judge, can concentrate the case at hand whereas a judge usually has a backlog of cases. Also, the absence of the discovery process is one of the important merits of arbitration in the U.S.A., especially from the viewpoint of an attorney's costs. It was argued that the arbitration process should not be affected by local civil procedure and the importance of the Chairman's first setting appropriate rules for the case at hand was stressed. For that reason, it was asserted that a professor of civil procedures without practical experience is not always a good arbitrator, to which various opinions were presented. It was pointed out that the arbitration process could be facilitated greatly if both party-representatives thoroughly prepare the case in advance, taking advantages of the situation where arbitrators are not overloaded with a case backlog as are judges.
With regard to the taking of evidence, the panel discussed the absence of evidence rules in the arbitration rules of most arbitration institutions in the world and presented the IBA Rules on the Taking of Evidence in International Commercial Arbitration prepared by International Bar Association as a basic guideline for an arbitrator (Chairman) in establishing the rules of evidence in each actual case. One panelist also presented to the audience his successful experience of limiting documentary evidence to only the best evidence where the party initially considered presenting a huge volume of documents which was far beyond any human's ability to review thoroughly.
Settlement in Arbitration
On the other hand, a different view was presented with regard to the arbitrator's attempting to reach a settlement as an affirmative practice. However, some caveats therefor were noted. An example is when the arbitrator inquires as to the parties' opinions on such issues as whether he can continue to act as arbitrator if a settlement is not reached and whether he, as arbitrator, can rely on information that is obtained during settlement negotiations. In this position, it was reported that generally speaking the parties would respond affirmatively to those inquiries and therefore the arbitrator should not feel uncomfortable to act as both mediator and arbitrator. The panel stressed the importance in resolving the dispute by means of creating a workable solution through finding out the hidden interests of the parties. In a case where both parties so agree, a preliminary assessment of the case might be disclosed after enough evidence has been presented by the parties. Sometimes an inquiry is made to the parties as to whether they desire the panel to present a settlement proposal. On this point, a procedure called MEDALOA (mediation and the last offer arbitration) was introduced. From these viewpoints, it was asserted that the efforts by an arbitrator to try to reach a settlement is appropriate.
Adequacy for allowing dissenting opinion in an arbitral award was also discussed at the Forum and various views were presented to the audience.
The Forum was successful in providing the audience with insight on arbitration which only very knowledgeable and experienced experts who have acted as arbitrators could present. JCAA again expresses deep appreciation to the excellent guest panelists and the coordinator for their valuable contribution and input at the Forum.
Housing Quality Assurance Law
Recommended Arbitration Clause
In drawing up contracta, partles are recommended to Include the following arbltration cause;
"All disputes, controversies or differences which may arise
ADR EEP 2000 Workshop
JCAA and the Institute for International Studies and Training (IIST) jointly held a workshop for the APEC Alternative Dispute Resolution Executive Education Project 2000 (ADR EEP 2000) on February 24, 2000 in Nagoya, Japan. It was held the day following the "Symposium of International Commercial Arbitration Law in Asia and Oceania Region: Prospects and Comparison" that was held by the Institute for Socioeconomic Dispute Studies at the Meijo University Graduate School of Law. (For this Symposium, see Page 5 in this Newsletter) The workshop was supported by the Asian Institute of Management (AIM) headquartered in Manila.
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|the ADR process, and this information would be indispensable information for business executives although it is not easy to predict. Another practical approach was to prepare a standard clause which incorporates options to name various ADR organizations in the region together with a brief explanation, and distribute such clause in the business communities. Other practical comments and suggestions included possible joint activities with other international legal organizations for ADR promotion and the importance of utilizing local dispute resolution centers (particularly for SMEs).
In considering possible promotional activities through executive education, it would be vital to clarify the factors of "what" to "whom." To structure ADR EEP 2000 in the most efficient and effective manner, such factors must be taken into consideration. In that aspect, the Nagoya Workshop has provided excellent input. It also contributed to forming a network of the experts in the region. ADR EEP 2000 hereby expresses its appreciation to all the participants of the Nagoya workshop.
A small follow-up meeting was held the next morning, February 25. At the meeting, the framework of ADR EEP 2000 was considered together with necessary preparations for each of the steps. Currently the holding of a curriculum workshop around July is being tentatively considered, followed by the first pilot training around the fall of the year 2000. ADR EEP 2000 will then have the final symposium to summarize the activities and to report on the project result.
There is still room to jointly design the activities of the ADR EEP 2000. All those interested in the promotion of ADR are most welcome to join the project. The mode of participation can take various forms. Any effort to disseminate ADR EEP among business executives and legal professionals, or even just to introduce those business executives and legal professionals who are considered appropriate in the region, would be a good example. Participation in developing the programs at a workshop, or in organizing such programs is of course welcomed. JCAA continues to support ADR EEP 2000.
List of Applicants for Arbitrator Lengthens
As reported in the previous issue of this newsletter, JCAA began compiling an informal list of "Applicants for Arbitrator" last July and published the list on its web site. The list is designed to provide a wide range of information about potential arbitrators.