Product Liability 2009 - Arnold & Porter LLP

White & Case LLP Japan
hearing within 30 days of the filing of the law suit, but this is often
delayed due to scheduling conflicts of the court. Trials in Japan are
primarily conducted by written submission of the parties and oral
arguments are rare. There is no continuous “trial” as one might see
in a common law country such as the U.S. or the U.K., but rather
interspaced hearings, typically lasting less than 30 minutes, are held
primarily to afford the parties opportunity to submit new documents
and evidence to the court. As a result, “getting to trial” happens
very quickly, but reaching a judgment in the first instance may take
a few years, depending on the complexity of the matter.
4.6 Can the court try preliminary issues, the result of which
determine whether the remainder of the trial should
proceed? If it can, do such issues relate only to matters of
law or can they relate to issues of fact as well, and if there
is trial by jury, by whom are preliminary issues decided?
Japanese civil procedure does not provide for motion practice, so
issues of fact or law may not be decided as preliminary issues. For
example, there is no motion for summary judgment or dismissal.
However, a court may close the trial proceedings and make a final
judgment at anytime.
4.7 What appeal options are available?
A dissatisfied party may appeal to an appeals court as a matter of
right. The appeals court sits de novo over the lower court’s
judgment. A further appeal may be made to the Supreme Court of
Japan, but if the issue involves subject matter other than a
constitutional issue or a serious procedural or factual error, it is
likely that the appeal will be denied by the Supreme Court. The
Supreme Court will only consider matters of law and will not make
any factual determinations.
4.8 Does the court appoint experts to assist it in considering
technical issues and, if not, may the parties present expert
evidence? Are there any restrictions on the nature or
extent of that evidence?
A court may, sua sponte or upon petition of one of the parties,
appoint an expert to testify. Additionally, parties may introduce
expert testimony as part of their briefs and submissions to the
courts. Expert testimony may be introduced as evidence at trial by
any of the following methods. First, under the Kantei system, a
party may make a request to the court for an expert opinion and the
court may appoint an expert to testify. Second, each party may
provide expert testimony from an expert of their own choosing
either by examining the expert as a witness (Shounin-jinmon) at a
court hearing or by submitting documentary evidence from the
expert (Shoshou). While each party is free to challenge the
qualifications of the expert, the court does not have a Daubert-like
gatekeeper duty to exclude unreliable expert testimony and is free
to consider or disregard any evidence submitted by a party.
4.9 Are factual or expert witnesses required to present
themselves for pre-trial deposition and are witness
statements/expert reports exchanged prior to trial?
If a witness is presented at a hearing, whether they are a fact or
expert witness, the party presenting such witness is required to give
to the other party written notice containing a summary of the matter
about which the witness will be called upon to discuss. The noncalling
party will also have a chance to cross examine at the
hearing.
ICLG TO: PRODUCT LIABILITY 2009
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4.10 What obligations to disclose documentary evidence arise
either before court proceedings are commenced or as part
of the pre-trial procedures?
Unlike common law countries such as the U.S. or the U.K., there is
neither a disclosure obligation nor right of discovery in Japan. There
are, generally, four ways a party may be able to obtain documentary
evidence from the other side: (1) preservation of evidence motion; (2)
request through an attorney bar association; (3) court ordered
production of documents; and (4) an inquiry by a party. However, a
party may refuse to produce documentary evidence where: (1) the
document contains information regarding which the holder (or people
that are closely related to the holder) has a right to refuse to testify; (2)
the document contains information on which the holder owes a
professional duty of confidentiality; (3) the document is related to
governmental affairs and the production of the document is against
public interest or will materially adversely affect the functioning of
public duties; or (4) the document was made specifically for the
purposes of the holder or relates to a criminal or juvenile delinquency
matter. One of the greatest hurdles facing Claimants in product
liability cases is that the evidence needed to prove that a Product is
defective is held by the Manufacturer and is not easily discoverable. It
is believed by many practitioners that this is an important factor as to
why product liability lawsuits are not more common in Japan.
4.11 Are alternative methods of dispute resolution available e.g.
mediation, arbitration?
Potential civil litigants may agree to refer their case for closed-door
civil conciliation (chotei) by applying at the local district court. A
conciliation board consists of one judge and at least two conciliators.
When an agreement is reached, it is recorded and becomes enforceable
in the same manner as a judgment of the court, but if the conciliation
fails, the plaintiff will have to file a law suit to pursue his/her claim.
Arbitration (chusai) is a speedy and economical method for settling
disputes, but both parties must agree in advance to be bound by the
arbitrator’s decision. The arbitrator’s decision is enforceable as the
judgment of the court.
Negotiated settlement (wakai) may be reached by the parties before
or during court proceedings. There are organisations which
specialise in promoting settlements of product liability and product
defect related claims in a certain product area such as the Centre for
Housing Renovation and Dispute Settlement Support, the
Association for Electric Home Appliances, the Automobile Product
Liability Consultation Centre, the Pharmaceutical PL Centre, the
General Merchandise PL Centre, and the Consumer Product Safety
Association. Only once an arbitration agreement is recorded with
the court does it become enforceable as the judgment of the court.
5 Time Limits
5.1 Are there any time limits on bringing or issuing
proceedings?
Yes, there are time limits.
5.2 If so, please explain what these are. Do they vary
depending on whether the liability is fault based or strict?
Does the age or condition of the claimant affect the
calculation of any time limits and does the Court have a
discretion to disapply time limits?
Generally, claims under the JPLL must be brought within a period
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