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December/1/2004
ADR Promotion Law |
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1.
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Enactment of ADR Promotion Law |
A Law designed
to promote alternative dispute resolution (ADR Promotion
Law) was enacted on November 18, 2004, at the Upper
House, and promulgated on December 1, 2004 (Law No.
151 of 2004). The Cabinet adopted the Program for
Promoting Justice System Reform on March 19, 2002,
in line with the recommendations of the Justice System
Reform Council, in which it suggested that efforts
to reinforce and vitalize ADR should be made so that
it would become an equally attractive option to adjudication.
According to the Program, the Consultation Group on
ADR was set up within the Office for Promotion of
Justice System Reform to discuss how to promote ADR,
including establishment of a basic law on ADR. The
Consultation Group held its first meeting on February
5, 2002, and after thirty six meetings in two and
half years, a bill on promotion of ADR was submitted
and enacted into law during the 161st Extraordinary
Session of the Diet.
The ADR Promotion Law consists of five chapters:
Chapter 1 "General Provisions" (Articles
1-4), Chapter 2 "Duties regarding Accredited
Dispute Resolution" (Articles 5-24), Chapter
3 "Exception for Use of Accredited Dispute
Resolution" (Articles 25-27), Chapter 4 "Miscellaneous
Provisions", and Chapter 5 "Penalties".
The law will be enforced on the day set by a Cabinet
Order within two years and six months from the date
of its promulgation.
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2.
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Contents
of ADR Promotion Law |
| 1) |
General Provisions |
| The purposes of the ADR Promotion
Law (Article 1), premised on the importance
of ADR as speedy resolution by utilizing expert
knowledge of third parties, are: |
| i) |
to stipulate the fundamental philosophy and
the responsibilities of the Government, etc.,
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| ii) |
to establish an accreditation system for
private ADR bodies, and |
| iii) |
to ensure that people can easily choose ADR
as means to solve their disputes by setting
exceptional applications such as the effect
of the accredited ADR bodies to interrupt prescription.
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Besides of the above-mentioned
purposes, the General Provisions provide definitions
(Article 2), the fundamental philosophy (Article
3), and the responsibilities of the Government,
etc. (Article 4).
With respect to the fundamental philosophy of
ADR, it is stipulated that ADR is: |
| i) |
dispute resolution by law, |
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self resolution means by interested parties,
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| iii) |
fair and due procedures, and |
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speedy resolution of disputes by applying
expert knowledge. |
| The law stipulates that the national
and local governments shall take necessary measures
including research, analysis, and provision
of information in order to promote the use of
ADR. |
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| 2) |
Accreditation System |
| The most remarkable point of this
ADR Promotion Law is the introduction of a system
to accredit private ADR bodies. This may be
a unique system among the developed countries.
Many provisions stipulate the accreditation
system and its details will be provided later
by regulations, etc. The ADR Promotion Law provides
fundamental provisions for the standards of
accreditation, the reasons for disqualification,
the accreditation procedures, the duties of
accredited ADR bodies to explain to users and
to report to the Minister of Justice, and the
reasons for cancellation of the accreditation.
Article 24 stipulates that the Minister of Justice
should give consideration to the nature of ADR
as self-resolution of disputes by parties involved
when he requests a report from or investigates
an accredited ADR body. This article intends
to exclude the interference of the Minister
of Justice in individual cases. |
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| 3) |
Exceptions for Procedures by Accredited ADR Bodies |
| It is not necessary to be accredited
as mentioned above to practice ADR, however,
procedures by the accredited ADR bodies may
enjoy some exceptional applications, such as
the effect of interrupt prescription (Article
25), the suspension of litigation (Article 26),
and the exception of conciliation-first (Article
27). Furthermore, the accredited ADR bodies
are allowed to receive fees from users (Article
28). Under this article, the ADR bodies may
provide ADR services other than arbitration
without violating Article 72 of the Practicing
Attorney Law. |
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| 3. |
ADR Promotion Law and Future of ADR |
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The establishment
of the ADR Promotion Law may have a certain effect
of announcement that ADR by private bodies is legally
accepted. Regarding the accredit system, there were
heated discussions about its introduction at the Consultation
Group. Consequently, the accredit system has been
introduced to mainly reserve reliable private ADR
bodies. From the point of view that ADR is basically
a self-resolution method by interested parties, it
is not ideal to introduce the accreditation system.
However, as the ADR Promotion Law aims to apply expert
knowledge for resolving disputes as stipulated in
Article 1, in other words, various quasi-legal professions
will participate in this field, the accreditation
system should be carried out as an interim measure
until the private ADR settles down in Japan as appropriate
methods to resolve disputes. This system may be reviewed
after 5 years from the enforcement of this law as
provided by Supplementary Provision 2.
Each ADR body may choose whether it applies for
the accreditation. Non-accredited ADR bodies may
provide ADR services, however, they cannot enjoy
the exceptional application of the effect of interrupt
prescription (Article 25), the suspension of litigation
(Article 26), and the application of an exception
of conciliation-first (Article 27). On the other
hand, if an ADR body wishes to obtain the accreditation,
it has to go through onerous procedures to satisfy
requirements to be accredited and carry a certain
financial load. In addition, the Minister of Justice
may request the accredited ADR bodies to report,
undertake investigation, and cancel their accreditation
if there is a certain reason to do so.
Once the Law is enforced, it is essential to keep
eyes on how the accreditation system affects the
promotion of private ADR. The ADR Promotion Law
will be applied to means to resolve disputes outside
of court, including arbitration. It should be noted,
however, that the accreditation system is applied
to dispute resolution excluding arbitration and
other judgmental ADR.
The ADR Promotion Law will be applied to not only
domestic cases but also international cases. Since
meditation is getting global attention as resolution
of international commercial disputes, we are interested
in how other countries would respond to this Japanese
ADR Promotion Law, and how this law would affect
the vitalization of ADR in Japan. Issues on representation
in ADR are going to be discussed in relation to
the Judicial Scrivener Law and other practice laws
of quasi-legal professions in accordance with the
Guideline published by the Consultation Group on
ADR.
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Yukukazu
Hanamizu
Vice Chairperson, Foreign Lawyers and International
Legal Practice Committee |
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