International Jurisdiction

March 28, 2006
Hara Kenzo International Patent Law Office
Patent Attorney Yoshihiro Kimura

1. Introduction
In this column, in relation to the previous column (Patent Act and Lex Causae ~explained with a precedent~), I would like to write about a law-related controversial topic in international disputes. This is written for understanding of persons who are not very familiar with the law.
In international disputes, both parties belong to different countries. Therefore, in order to solve the dispute, in which state’s law will it be judged (substantive legal aspect) and in which country’s court will the judgment take place (procedural legal aspect) will be the issues. If using legal terms, the first will be the issue of lex causae, the latter will be the issue of international jurisdiction. In the previous column, we have introduced lex causae, so in this column I would like to introduce international jurisdiction.

2. Domestic jurisdiction
Jurisdiction, specifically where the judgment will take place is an issue for the parties just as big as which state’s law will it be judged upon. For example, it would be easy to understand if you could imagine that a judgment related to you is held at a country on the other side of the earth, or in a inland country of a continent (this is a little extreme though).
Of course, jurisdiction is also an issue with domestic disputes in Japan. For example, in the case a person in Hokkaido and a person in Okinawa have a dispute, where the judgment will take place will be a big issue. Regarding jurisdiction within Japan, there is a provision in Code of Civil Procedure. In principle, judgment will take place in the address of the defendant (Code of Civil Procedure, Article 4 paragraph 1, 2).

3. International jurisdiction
Now, with international disputes, even though the location of the judgment becomes an even bigger issue than in domestic disputes, there are no clear provisions. I would like to introduce the principles, exceptions, and further exceptions using the terms in the precedents of the Supreme Court.

1) Principle
Firstly the principle is, “A country’s jurisdiction is exercised as an operation of its sovereignty and basically covers the same territory as the sovereignty, so that, in principle, the jurisdiction of Japan does not extend to foreign persons unless they elect to submit to the jurisdiction of Japan”.
(Supreme Court judgment, October 16, 1981 (Minshu Vol. 35, No. 7, at 1224))
Specifically, foreign persons cannot be judged in Japan.

2) Exceptions
The exceptions to this is “with respect to cases in which the defendants are somehow legally related to our country, … it is reasonable for the defendants to be subjected to the jurisdiction of Japan regardless of their nationalities”.
As the scope of such exception cases, it is mentioned as “there is no internationally recognized general rule as to under what circumstances the court in Japan should have jurisdiction”, therefore in the actual judgment it is mentioned as “decide on this matter on the basis of reason, guided by the ideas of fairness between the parties, ensurance of just and speedy adjudication”, and for example, “it is reasonable to subject the defendants to the jurisdiction of Japan with respect to cases in which, … factors specified in other provisions, is located in Japan”.
(Supreme Court judgment, October 16, 1981 (Minshu Vol. 35, No. 7, at 1224))
Specifically, there are cases foreign persons may be judged in Japan as an exception, however there is no clear standard towards this exception, and is reasonably determined on the basis of the specific case.

[Precedent]
A case where A, a Japanese national was killed in the crash of an aircraft of a Malaysian corporation within the Malaysian borders, and B, who is the wife of A, claimed the Malaysian corporation for damages.
In consideration of the fact that a branch office is located in Japan, it was determined as “it is reasonable to subject the Malaysian corporation to the jurisdiction of Japan despite the fact that it is a foreign corporation having its principal place of business in a foreign country”.
(Supreme Court judgment October 16, 1981 (Minshu Vol. 35, No. 7, at 1224))

3) Exceptions of exceptions
Furthermore, as an exception of the exception, it is mentioned as “if there are special circumstances, exceptional process is accepted”.
For example, even in the case the jurisdiction of Japan was affirmed with the reason being “one of the territorial jurisdictions as provided by the Code of Civil Procedure of Japan can be found in Japan” (exception), the international jurisdiction of Japan will be denied if for example it gives excess burden to the party, or in the case the means of evidence is in a different location (exception of the exception).
(Judgment November 11, 1997(Minshu Vol. 51, at 4055))
Specifically, even in the case from reasonable (formally) determination it is concluded that international jurisdiction of Japan is affirmed, due to special circumstances, there are cases where this conclusion is denied, and jurisdiction of Japan is not accepted.

[Precedent]
A case where a Japanese corporation claimed for the return of entrusted money towards a Japanese national residing in Germany.
In consideration of the fact the Japanese national resided and held his/her business ground in Germany for long years, it was determined that “it was beyond expectation (of the national residing in Germany) that a claim for the performance of obligation under the Contract would be brought to a Japanese court”, and that “there are special circumstances in the present case that the international jurisdiction of the Japanese court should be denied”.
(Judgment November 11, 1997 (Minshu Vol. 51, No. 10, at 4055))

4. Cases related to patents
Lastly, I would like to look at an actual example of a dispute related to patents. Disputes related to patents can be categorized into cases where the validity of the patent is the issue, and cases where infringement of the patent is the issue.
Firstly, in the case the validity of the patent is the issue, jurisdiction will be the country of patent registration. This is, if court is taken in a country other than the registration country, it is taken to be an intervention in civil affairs.
On the other hand, in the case where infringement of the patent is the issue, jurisdiction will be the country of the address of the defendant or where the unlawful act was taken. This is with the same content and intention as the provision in Code of Civil Procedure concerning domestic disputes (Code of Civil Procedure, Article 2 paragraph 1, 2, Article 5 paragraph 1 item 9), and is from consideration of the defendant’s convenience and the easiness of verifying the infringement.

The above is a brief introduction of the perspective in precedents regarding jurisdiction. The conclusion (jurisdiction eventually determined) is appropriate based on specific cases, however I appreciate the importance of the logic and thought supporting this.
Please note the descriptions concerning precedents have been extracted and added in as appropriate, and therefore lack in accuracy.