Gathering Evidence in Aid of Foreign Litigation Guide |
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Japan |
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| (Asia Pacific) Firm Nishimura & Asahi (GKJ) Updated 22 Mar 2022 | |
| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | In Japan, Japanese courts are permitted to gather evidence in aid of foreign litigation. However, evidence is limited to taking of witness testimonies before the Japanese courts. Japanese courts are not permitted to compel the production of documents. |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | No, Japan is a not party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). However, Japan is a party to the Hague Convention on Civil Procedure dated 1 March 1954 (“Hague Civil Procedure Convention”). In the case a contracting state to the Hague Civil Procedure Convention seeks judicial assistance from Japan in gathering evidence, the consul of the requesting state must make the request to the Minister of Foreign Affairs of Japan (the designated authority of Japan under the Hague Civil Procedure Convention) in accordance with the requirements listed in the Hague Civil Procedure Convention (Article 9 paragraph 1, Article 10 thereof). In case the requesting state is not a party to the Hague Civil Procedure Convention, Japan’s domestic law (Law on Judicial Assistance upon Request by Foreign Courts (Act No. 63 of 13 March 1905) (“Judicial Assistance Act”)) applies, provided that there is no bilateral treaty or agreement between the requesting state and Japan. Under this law, a Japanese court may gather evidence upon a request by a foreign court (Article 3 thereof). Such request must be sent via diplomatic channels, i.e., through a request by the state’s embassy in Japan to the Japanese Ministry of Foreign Affairs (Article 1-2(i) thereof). Judicial assistance in the gathering of evidence is limited to obtaining witness testimonies before the Japanese courts; Japanese courts are not permitted to compel the production of documents in aid of foreign litigation. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | In the case the requesting state is a contracting state to the Hague Civil Procedure Convention, the consul of the state shall make the request to the Minister of Foreign Affairs of Japan. Otherwise, the court of the state shall make the request through diplomatic channels, i.e., through a request by the state’s embassy in Japan to the Japanese Ministry of Foreign Affairs, provided that there is no bilateral treaty or agreement between the requesting country and Japan which states differently. With respect to the request made by a contracting state to the Hague Civil Procedure Convention, the request will be dealt with pursuant thereto. If the requesting state is not a party to the Hague Civil Procedure Convention and there is no applicable bilateral treaty or agreement between the requesting state and Japan, the Judicial Assistance Act would apply, and approval would be given to the request on a case-by-case basis. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | Judicial assistance for the gathering of evidence is limited to obtaining witness testimonies before the Japanese courts; Japanese courts are not permitted to compel the production of documents in aid of foreign litigation. |
| Who bears the burden of showing whether any privileges apply? | With respect to privileges, please note that Judicial assistance for the gathering of evidence is limited to obtaining witness testimonies before the Japanese courts; Japanese courts are not permitted to compel the production of documents in aid of foreign litigation. When a witness refuses to testify on the grounds that he/she has the right to refuse to testify on that matter under the Code of Civil Procedure of Japan (Article 196, Article 197 thereof), the witness must prima-facie show that such grounds exist (Article 198 thereof). |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | No. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | No. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | No. |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | Yes, citizens residing in Japan may voluntarily give evidence in a foreign proceeding. However, providing evidence under oath remotely while residing in Japan is not permitted, because such action would infringe the sovereignty of Japan. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | Article 35 of the Arbitration Act of Japan provides that, for arbitrations seated in Japan, the court may conduct certain types of evidence gathering upon a request made by the arbitral tribunal or the parties with leave from the arbitral tribunal, although such actions are limited to evidence held by or to be obtained from a third party. Unlike judicial aid to foreign litigation, both witness and documentary evidence can be obtained through coercive means available under the Code of Civil Procedure of Japan. |
Gathering Evidence in Aid of Foreign Litigation Guide
In Japan, Japanese courts are permitted to gather evidence in aid of foreign litigation. However, evidence is limited to taking of witness testimonies before the Japanese courts. Japanese courts are not permitted to compel the production of documents.
No, Japan is a not party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”).
However, Japan is a party to the Hague Convention on Civil Procedure dated 1 March 1954 (“Hague Civil Procedure Convention”). In the case a contracting state to the Hague Civil Procedure Convention seeks judicial assistance from Japan in gathering evidence, the consul of the requesting state must make the request to the Minister of Foreign Affairs of Japan (the designated authority of Japan under the Hague Civil Procedure Convention) in accordance with the requirements listed in the Hague Civil Procedure Convention (Article 9 paragraph 1, Article 10 thereof).
In case the requesting state is not a party to the Hague Civil Procedure Convention, Japan’s domestic law (Law on Judicial Assistance upon Request by Foreign Courts (Act No. 63 of 13 March 1905) (“Judicial Assistance Act”)) applies, provided that there is no bilateral treaty or agreement between the requesting state and Japan. Under this law, a Japanese court may gather evidence upon a request by a foreign court (Article 3 thereof). Such request must be sent via diplomatic channels, i.e., through a request by the state’s embassy in Japan to the Japanese Ministry of Foreign Affairs (Article 1-2(i) thereof).
Judicial assistance in the gathering of evidence is limited to obtaining witness testimonies before the Japanese courts; Japanese courts are not permitted to compel the production of documents in aid of foreign litigation.
In the case the requesting state is a contracting state to the Hague Civil Procedure Convention, the consul of the state shall make the request to the Minister of Foreign Affairs of Japan. Otherwise, the court of the state shall make the request through diplomatic channels, i.e., through a request by the state’s embassy in Japan to the Japanese Ministry of Foreign Affairs, provided that there is no bilateral treaty or agreement between the requesting country and Japan which states differently.
With respect to the request made by a contracting state to the Hague Civil Procedure Convention, the request will be dealt with pursuant thereto. If the requesting state is not a party to the Hague Civil Procedure Convention and there is no applicable bilateral treaty or agreement between the requesting state and Japan, the Judicial Assistance Act would apply, and approval would be given to the request on a case-by-case basis.
Judicial assistance for the gathering of evidence is limited to obtaining witness testimonies before the Japanese courts; Japanese courts are not permitted to compel the production of documents in aid of foreign litigation.
With respect to privileges, please note that Judicial assistance for the gathering of evidence is limited to obtaining witness testimonies before the Japanese courts; Japanese courts are not permitted to compel the production of documents in aid of foreign litigation. When a witness refuses to testify on the grounds that he/she has the right to refuse to testify on that matter under the Code of Civil Procedure of Japan (Article 196, Article 197 thereof), the witness must prima-facie show that such grounds exist (Article 198 thereof).
No.
No.
No.
Yes, citizens residing in Japan may voluntarily give evidence in a foreign proceeding. However, providing evidence under oath remotely while residing in Japan is not permitted, because such action would infringe the sovereignty of Japan.
Article 35 of the Arbitration Act of Japan provides that, for arbitrations seated in Japan, the court may conduct certain types of evidence gathering upon a request made by the arbitral tribunal or the parties with leave from the arbitral tribunal, although such actions are limited to evidence held by or to be obtained from a third party. Unlike judicial aid to foreign litigation, both witness and documentary evidence can be obtained through coercive means available under the Code of Civil Procedure of Japan.