JAPAN ARBITRATION LAW
LAWS
OF JAPAN
THE
LAW OF ARBITRATION
(THE LAW ON PUBLIC NOTICE PROCEDURE AND ARBITRATION
PROCEDURE)
CHAPTER VIII: ARBITRATION PROCEDURE
Section 786.
An Agreement to submit
a controversy to one or more arbitrators is valid only
where the parties have the right to make a compromise
regarding the subject matter in dispute.
Section 787.
An agreement to submit
a future controversy to arbitration shall have no effect
unless it relates to a particular relation of right
and a controversy arising therefrom.
Section 788.
If in an arbitration agreement
no provision is made for the nomination of arbitrators,
each party shall nominate an arbitrator.
Section 789.
(1)Where both parties are
entitled to nominate arbitrators, the party initiating
the arbitration procedure shall in writing signify to
the other party the arbitrator of his own nomination
and call upon that other party to take the corresponding
steps on his side within a period of seven days.
(2) In default of nomination
of an arbitrator within the period specified in the
preceding Sub-Section the competent Court, upon application
by the party initiating the arbitration procedure, shall
appoint an arbitrator.
Section 790.
A party having nominated
an arbitrator shall be bound by such nomination in relation
to the other party as soon as he has given to that other
party notice of the nomination.
Section 791.
Where an arbitrator nominated
otherwise than by an arbitration agreement dies, or
his position is otherwise vacated, or he refuses to
accept or exercise the office of arbitrator, the party
who has nominated him shall, upon demand by the other
party, appoint another arbitrator within a period of
seven days. In default of appointment of an arbitrator
within the specified period, the competent Court, upon
application by the said other party, shall appoint an
arbitrator.
Section 792.
(1)The parties may challenge
an arbitrator on the same grounds and on the same conditions
as they were entitled to challenge a Judge.
(2)Apart from the provisions
of the preceding Sub-Section, an arbitrator nominated
otherwise than by an arbitration agreement may be challenged
if he unduly delays the exercise of his office.
(3)Persons who are under
disability, deaf, dumb, or deprived of or suspended
from the enjoyment of public rights may, if nominated
to be arbitrators, be challenged.
Section 793.
An arbitration agreement
shall be void unless by mutual consent of the parties
provisions are made therein against the following contingencies:-
1. That, specified persons
being nominated arbitrators in the arbitration agreement,
any one of them dies, or his position is otherwise vacated,
or he refuses to act, or withdraws from the agreement
entered into by him, or unduly delays the discharge
of his duties;
2. That the arbitrators
notify the parties that their opinions are equally divided.
Section 794.
(1)The arbitrators, before
making an award, shall hear the parties and make such
enquiries into the causes of controversy as they deem
necessary.
(2)Where the parties have
no agreement on the arbitration procedure to be followed,
the arbitrators shall adopt such procedure as they think
fit.
Section 795.
(1)The arbitrators may
examine such witnesses and experts as may voluntarily
appear before them.
(2)The arbitrators have
no power to administer an oath to a witness or an expert.
Section 796.
(1)Any act which the arbitrators
consider necessary in the course of the arbitration
procedure but which they are unable to perform shall,
upon application by the parties, be performed by the
competent Court, provided such application is deemed
proper.
(2)If a witness or an expert
refuses to give evidence or expert opinion, the Court
which ordered him to do so shall have the power to make
such adjudication as may then be necessary.
Section 797.
If the parties contend
that the arbitration procedure entered upon is not one
which is to be allowed, or in particular, that no legally
binding agreement of arbitration has been made, or that
the arbitration agreement does not relate to the controversy
to be settled, or that the arbitrators have no power
to exercise their office, nevertheless the arbitrators
may proceed with their function and make an award.
Section 798.
When an 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.
Section 799.
(1)The award shall bear
date of the day on which it was prepared, and 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 document
of award accompanied by a certificate of service shall
be deposited with the Office of Clerks of the competent
Court.
Section 800.
As between the parties
the award shall have the same effect as a final and
conclusive judgement of a Court of Justice.
Section 801.
(1)Application to set aside
an award may be made in any of the following cases:-
1. Where the arbitration
was one which ought not to have been allowed;
2. Where the award orders
a party to do an act which is prohibited by law;
3. Where in the arbitration
procedure the parties were not lawfully represented;
4. Where the parties were
not heard in the arbitration procedure;
5. Where the award does
not show the ground on which the decision was made;
6. Where for any of the
reasons specified in 4, 5, 6, 7 and 8 of Section 338(1)
of the Code of Civil Procedure a motion for a new trial
is to be allowed.
(2)Where otherwise agreed
between the parties, an award cannot be set aside for
the reasons specified in 4 and 5 in the preceding Sub-Section.
Section 802.
(1)Execution by virtue
of an award can be carried out only if it is pronounced
to be allowed by an execution-judgement.
(2)No such execution-judgement
as is referred to in the preceding Sub-Section shall
be given, if there exists any ground upon which application
for setting aside an award can be made.
Section 803.
After an execution-judgement
has been given application for setting aside the award
can be made only on the ground specified in 6 in Section
801, and then only if it is shown that the party has,
not owing to any fault on his part, been unable to plead
the ground for setting aside the award in the previous
procedure.
Section 804.
(1)In the case mentioned
in the preceding Section, an action for setting aside
an award must be instituted within a peremptory term
of one month.
(2)The term referred to
in the preceding Sub-Section shall commence to run from
the day on which the party becomes aware of the ground
for setting aside the award, but not before the execution-judgement
becomes conclusive. After the expiration of five years
from the day on which the execution-judgement becomes
conclusive, this action cannot be brought.
(3)When setting aside an
award, the Court shall also pronounce the setting aside
of the execution-judgement.
Section 805.
(1)The Court competent
to entertain an action having for its object the nomination
or challenge of an arbitrator, the termination of an
arbitration agreement, the disallowance of arbitration,
the setting aside of an award, or the giving of an execution-judgement
shall be the Summary Court or District Court designated
in the arbitration agreement. In the absence of such
designation, the action may be brought before such Summary
or District Court as would be the competent Court if
the claim were judicially made before a Court of Justice.
(2)In case there are two
or more Courts having jurisdiction according to the
preceding Sub-Section, the Court to which the parties
or arbitrators first resorted shall be the competent
Court.
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