‘Business Law in Japan – Cases and Comments’ – Festschrift for Harald Baum (Kluwer, 2012)

[Adapted from the 21 May news item from the Max Planck Institute for Comparative and International Private Law (MPI)]
A ground-breaking English-language summary and commentary on leading Japanese judgments in the field of business law has been published as a Festschrift to mark the 60th birthday of Harald Baum, the Senior Research Fellow and Head of the Japan Unit at the MPI in Hamburg. Students, colleagues and friends of Harald Baum from Europe, Japan, the USA and Australia [namely, Luke Nottage] honour the achievements of the longstanding Max Planck academic with a collection of 72 judgments from Japanese courts on issues of intellectual property rights, civil law and international private and business law.
The collection of cases edited by Moritz Bälz, Marc Dernauer, Christopher Heath and Anja Petersen-Padberg complements the Handbuch Japanisches Handels- und Wirtschaftsrecht (Encyclopedia of Japanese Commercial and Business Law) which Harald Baum edited with Moritz Bälz in 2011. The Festschrift contains contributions from over 50 notable authors from academia and legal practice and thus becomes one of the standard works on Japanese business law written in a Western language. The publishers note their intention of ensuring that the contributions do justice to the high academic standards repeatedly set by the honouree.
The Festschrift was presented to him at the Institute by the publishers on 14 May 2012 during an academic ceremony, including an address by Prof. John O. Haley. Prof. Dr. Harald Baum has been a Senior Research Fellow and Head of the Japan Unit he founded at the Institute in Hamburg since 1985. As founding editor since 1996 of the Zeitschrift für Japanisches Recht / Journal of Japanese Law, he has had a significant impact on comparative research and academic discussions in this area. [The Australian Network for Japanese Law helps in editing and promoting the Journal, and is pleased to have Prof. Baum as a founding member of ANJeL’s Advisory Board. ANJeL warmly congratulates him and the editors on this latest book, which is described further below (adapted from the Kluwer website).]

Business Law in Japan – Cases and Comments. Intellectual Property, Civil, Commercial and International Private Law
Edited by: Moritz Bälz, Marc Dernauer, Christopher Heath, Anja Petersen-Padberg

List Price: $220.00
Imprint: Kluwer Law International
Published: 5/1/2012
ISBN: 9789041138910
Hardcover: 848 pages
Compilations of cases with commentary – in Japanese Hanrei Hyakusen – often provide the most practical way to obtain a quick and reliable understanding of a specific field of law, as well as guidance on how best to proceed in specific situations. In this respect, leading cases much more than statutory provisions are essential for understanding the reality of Japanese commercial law. This incomparable book compiles 72 of the most important commercially relevant Japanese court decisions in the fields of civil law, labour law, company law, financial transactions, intellectual property, antitrust, conflict of laws, and arbitration. Each decision is presented in English translation and is accompanied by a practical and explanatory commentary by an expert in the field, be it from academia or private practice. There are 50 commentators in all, brought together here to honour the 60th birthday of Harald Baum, widely regarded as one of the world’s foremost scholars on Japanese business law. The cases encompass a wide reach of causes of action in fields such as: ;
breach of contract;
tort liability;
product liability;
unjust enrichment;
collective bargaining;
shareholders’ rights;
directors’ duty of care;
political donations;
insider trading;
patent infringement;
parallel imports;
trade mark rights;
unfair competition;
publicity rights;
price fixing;
arbitration agreements; and
recognition of foreign judgements.
Whether serving as practical guidance or as a basis for academic research, this compilation will be warmly welcomed by practicing lawyers, teachers and students of Japanese and international law, and all others who need to understand the various fields of Japanese commercial law.
Part I Civil Law. Case No. 1 Civil Law – Contract Law – Nullity of Contracts (Juristic Acts) due to a Violation of Mandatory Public Law Provisions Supreme Court, 4 September 1997 with comment by Keizō Yamamoto. Case No. 2 Civil Law – Contract Law – Doctrine of Frustration – Change of Circumstances Supreme Court, 1 July 1997 with comment by Frank Bennett. Case No. 3 Civil Law – M&A – Binding Nature of Letter of Intent – Obligation to Negotiate in Good Faith – Confidentiality Clause – Injunctive Relief Supreme Court, 30 August 2004 –‘Sumitomo Trust’ with comment by Jörn Westhoff. Case No. 4 Civil Law – Contract Law – Breach of Contract – Damages – Liability for Acts of the Assistant Daishin’in (Imperial Supreme Court), 30 March 1929 with comment by Gabriele Koziol. Case No. 5 Civil Law – Contract Law – Purchase Contract – Extinctive Prescription for Damage Claims Under the Warranty against Defects Supreme Court, 27 November 2001 with comment by Kunihiro Nakata. Case No. 6 Civil Law – Case to Seek Return of Money Equivalent to Unjust Enrichment –Actio de in rem verso Supreme Court, 19 September 1995 with comment by Masanori Fujiwara. Case No. 7 Civil Law – Tort Law/Contract Law – Liability for a Breach of Pre-contractual, Contractual and Non-contractual Information Duties – Liability of Experts – Claim for Damages Supreme Court, 17 September 2005 with comment by Marc Dernauer. Case No. 8 Civil Law – Tort Law – Joint Tort Liability Supreme Court, 23 April 1968 –‘Sannō River’ with comment by Colin P.A. Jones. Case No. 9 Civil Law – Tort Law – Product Liability Law – Claim for Damages Nagoya District Court, 30 June 1998 –‘McDonald’s Orange Juice’ with comment by Luke Nottage. Case No. 10 Civil Law – Contract Law – Improper Solicitation Transaction – Improperness of Solicitation of Transactions with Elderly People Tokyo District Court, 25 August 1987 with comment by Makoto Arai. Case No. 11 Civil Law – Consumer Contract Act – Case That Decided whether Gold Futures Prices Are ‘Important Matters’ under the Consumer Contract Act Supreme Court, 30 March 2010 with comment by Mihoko Sumida. Case No. 12 Civil Law – Contract Law – Consumer Credit – Documentation Requirements – Return of Unjust Enrichment Supreme Court, 13 July 2007 with comment by Julius Weitzdörfer. Case No. 13 Civil Law – State Compensation Law – State Liability – Extinctive Prescription Supreme Court, 27 April 2004 with comment by John O. Haley. Case No. 14 Civil Law – State Compensation Law – State Liability – Extinctive Prescription Supreme Court, 15 October 2004 with comment by John O. Haley.
Part II Labour Law Case No. 15 Labour Law – Freedom Related to Hiring – Length of Probation Period Supreme Court, 12 December 1973 –‘Mitsubishi Jūshi’ with comment by Hans-Peter Marutschke. Case No. 16 Labor and Employment Law – Duty to Work Overtime – Termination for Cause – Abuse of Right – Section 36 Agreements – Collective Bargaining Agreements – Work Rules Supreme Court, 28 November 1991 –‘Hitachi Factory Overtime’ with comment by Gerald Paul McAlinn & Mayu Terada. Case No. 17 Labor Law – Abuse of Employer’s Right to Transfer Employees Supreme Court, 14 July 1986 –‘Toa Paint’ with comment by Matthias K. Scheer. Case No. 18 Labor Law – Succession to Labor Contracts upon Company Split – Section 5 Consultations Supreme Court 12 July 2010 –‘IBM Japan’ with comment by Moritz Bälz.

Part III Corporate Law, Financial Regulation, Insurance Law
Case No. 19 Corporate Law – Book-Entry Transfer System for Shares – Minority Shareholders’ Appraisal Right – Requirement to Make Individual Shareholder Notice Supreme Court, 7 December 2010 –‘Media Exchange’ with comment by Hideki Kanda. Case No. 20 Corporate Law – Duty of Care – Greenmailing – Benefits Granted to Shareholders Supreme Court, 10 April 2006 –‘Janome Sewing Machine’ with comment by Curtis J. Milhaupt. Case No. 21 Corporate Law – Business Judgment Rule – Derivative Action Supreme Court, 15 July 2010 –‘Apamanshop’ with comment by Dan W. Puchniak & Masafumi Nakahigashi. Case No. 22 Corporate Law – Financial Assistance by Stock Corporation to Associated Corporation – Directors’ Duty of Care and Duty of Loyalty Osaka District Court, 30 January 2002 –‘Royal Hotel’– with comment by Eiji Takahashi & Tatsuya Sakamoto. Case No. 23 Corporate Law – Director’s Remuneration – Pension-Type Remuneration after Retirement – Unilateral Cancellation by the Company Supreme Court, 16 March 2010 with comment by Souichirou Kozuka. Case No. 24 Corporate Law – Absorption-type Merger – Fairness of Merger Ratio – Action Seeking the Invalidation of a Merger Tokyo High Court, 31 January 1990 with comment by Masaru Hayakawa. Case No. 25 Corporate Law – Fraudulent Incorporation-type Company Split – Right of Creditors to Seek Avoidance and Request Compensation from the New Company Tokyo High Court, 27 October 2010 –‘Yuni PR KK’ with comment by Hiroyuki Kansaku & Moritz Bälz . Case No. 26 Corporate Law – Company Split – Continued Use of Trade Name – Liability of Succeeding Company for Obligations of Splitting Company Supreme Court, 10 June 2008 –‘Ryōsen Golf Club’ with comment by Kiyoshi Endō. Case No. 27 Corporate Law – Absorption-type Merger, etc. – Appraisal Remedy – Determination of Fair Value Supreme Court, 19 April 2011 –‘Rakuten’ with comment by Hiroyuki Watanabe. Case No. 28 Corporate Law – MBO – Squeeze-out – Minority Shareholders’ Appraisal Right Supreme Court, 29 May 2009 –‘In Re Rex Holdings Co., Ltd.’ with comment by Maki Saito. Case No. 29 Corporate Law – Takeovers – Issuance of Share Options as Defence Measure – Principal Purpose Rule Tokyo High Court, 23 March 2005 –‘Livedoor’ with comment by Tomotaka Fujita. Case No. 30 Corporate Law – Takeovers – Defensive Measures – Equality of Shareholders Supreme Court, 7 August 2007 –‘Bulldog Sauce’ with comment by Hiroshi Oda. Case No. 31 Corporate Law – Constitutional Law – Political Donations by Companies – Legal Capacity of Companies – Purpose of Companies Supreme Court, 24 June 1970 –‘Yahata Seitetsu (III)’ with comment by Towa Niimura. Case No. 32 Banking Law – Definition of Banking – Meaning of ‘Funds Transfer’– Legality of Money Transmittance Service on Behalf of Customer Supreme Court, 12 March 2001 with comment by Souichirou Kozuka. Case No. 33 Insider Trading – Decision Regarding Carrying Out a Tender Offer – Decision-Making Organ Supreme Court, 6 June 2011 –‘Murakami Fund’ with comment by Markus Thier. Case No. 34 Insurance Law – Non-Life Insurance – Accidental Nature of the Insured Event – Burden of Proof Supreme Court, 1 June 2006 with comment by Gen Gotō. Case No. 35 Insurance Law – Life Insurance – Claim for Payment – Exemption due to Intentional Cause of Death Supreme Court, 3 October 2002 –‘Daiichi Mutual Life Insurance’ with comment by Olaf Kliesow.
Part IV Intellectual Property and Competition Law Case No. 36 Patent Law – Limits of Patent Rights – National and International Exhaustion Supreme Court, 1 July 1997 –‘BBS Car Wheels III’ with comment by Dirk Schüssler-Langeheine and postscript by Christopher Heath. Case No. 37 Intellectual Property – Patent Law – Patent Infringement – Defence of Patent Exhaustion and Exceptions Supreme Court, 8 November 2007 –‘Canon Ink Cartridge’ with comment by Marc Dernauer. Case No. 38 Intellectual Property – Patent Law – Clinical Trials – Research Exception Supreme Court of Japan, 16 April 1999 –‘Clinical Trials III’ with comment by Klaus Hinkelmann. Case No. 39 Intellectual Property Law – Patent Law – Requirements for a Patent Term Extension of Pharmaceutical Patents Supreme Court, 28 April 2011 –‘Pacif Capsule II’ with comment by Marc Dernauer. Case No. 40 Intellectual Property – Patent Law – Interpretation of Patent Claims – Doctrine of Equivalents Supreme Court, 24 February1998 –‘Ball Spline Bearing III’ with comment by Atsushi Okada. Case No. 41 Intellectual Property – Patent Law – Employees’ Inventions – Company Rules – Reasonable Remuneration Supreme Court, 22 April 2003 –‘Olympus’ with comment by Anja Petersen-Padberg. Case No. 42 Intellectual Property – Patent Law – Employees’ Inventions – Reasonable Remuneration Tokyo District Court, 30 January 2004 –‘Blue LED’ with comment by Anja Petersen-Padberg. Case No. 43 Intellectual Property – Patent Law – Patent Infringement – Counterclaim of Invalidity Supreme Court, 11 April 2000 –‘Kilby (III)’ with comment by Christopher Heath Case No. 44 Copyright Law – Time- and Space-Shifting Broadcast – Right of Reproduction Supreme Court, 20 January 2011 –‘Rokuraku III’ with comment by Tatsuhiro Ueno. Case No. 45 Copyright Law – Re-Broadcasting of TV Programmes – Public Transmission Supreme Court, 18 January 2011 –‘Maneki TV’ with comment by Tatsuhiro Ueno. Case No. 46 Copyright Law – Parodistical use – Right of Quotation – Fair Use Supreme Court, 28 March 1980 –‘Mad Amano’ with comment by Peter Ganea. Case No. 47 Copyright Law – Cinematographic Works – Distribution Right – Exhaustion Supreme Court, 25 April 2002 –‘Second-Hand Computer Games’ with comment by Peter Ganea. Case No. 48 Copyright Law – Future Works – Injunctive Relief – Enforcement of Copyright Supreme Court, 8 June 1995 –‘The Wall Street Journal II/III’ with comment by Christopher Heath & Takuya Iizuka Case No. 49 Trade Marks – Registrability – Secondary Meaning – Three-Dimensional Marks Intellectual Property High Court, 29 May 2008 –‘Coca-Cola Bottle’ with comment by Christopher Heath Case No. 50 Trade Mark Law – Similarity – Confusion Supreme Court, 27 February 1968 –‘Hyōzan’ with comment by Christopher Heath. Case No. 51 Trade Marks – Trade Mark Use – Confusion – Comparative Advertising – Well-Known Marks Tokyo District Court, 24 March 1993 –‘Type Chanel No. 5’ with comment by Christopher Heath. Case No. 52 Trade Mark Law – Abusive Registration of Well-Known Marks – Foreign Marks Supreme Court, 11 July 2000 –‘L’Air du Temps’ with comment by Christopher Heath. Case No. 53 Trade Mark Law – Parallel Imports – Identity of Goods – Licensing Agreement – Counterfeit Goods Supreme Court, 27 February 2003–‘Fred Perry’ with comment by Christopher Heath. Case No. 54 Protection of Legal Interests Not Explicitly Recognized by Statute – Tort and Intellectual Property Law Daishin’in (Imperial Supreme Court), 28 November 1925 –‘Daigaku-yu’ with comment by Guntram Rahn. Case No. 55 Copyright – Works of Applied Art – Law of Torts – Slavish Imitation – Unfair Competition Prevention – Designs Tokyo High Court, 17 December 1991 –‘Decorative Veneer’ with comment by Christopher Heath. Case No. 56 Publicity Rights – Personality Rights Tokyo High Court, 26 September 1991 –‘Oniyanko Club’ with comment by Christopher Heath. Case No. 57 Patent Law – Licensing Law – Exclusive Registered Licensee – Standing to Sue Supreme Court, 17 June 2005 –‘FlexX’ with comment by Jörn Westhoff. Case No. 58 Antitrust Law – Price Fixing – Administrative Guidance – Fair Trade Commission Supreme Court, 24 February 1984 –‘Oil Cartel’ with comment by Ursula Eisele. Case No. 59 Antitrust Law – Concerted Behaviour – Cartels – Patent Pools Fair Trade Commission, 20 June 1997 –‘Pachinko Patent Pool’ with comment by Christopher Heath. Case No. 60 Antitrust Law – Unfair Trade Practices – Resale Price Maintenance – Private Enforcement Supreme Court, 18 December 1998 –‘Shiseido Cosmetics’ with comment by Christopher Heath.

Part V Conflict of Laws, Arbitration and Civil Procedure
Case No. 61 Infringement of a US Patent – Patent Law – Applicable Law Supreme Court, 26 September 2002 –‘Card Reader’ with comment by Yuko Nishitani. Case No. 62 Claim for the Interdiction of an Arbitration Procedure: Law Applicable to the Legal Capacity of a Company – Adoption of an Arbitration Agreement – Doctrine of Separability of the Arbitration Agreement from the Main Contract Supreme Court, 15 July 1975 with comment by Eva Schwittek. Case No. 63 Law Applicable to Maritime Lien Takamatsu High Court, 30 April 1985 with comment by Yasuhiro Okuda. Case No. 64 Calculation of Lost Income of Foreign Victim because of Accident in Japan Supreme Court, 28 January 1997 –‘Bobby Maxdo’ with comment by Yasuhiro Okuda. Case No. 65 International Civil Procedure Law – State Immunity from Civil Jurisdiction – Restrictive Immunity Theory – Waiver from Immunity Supreme Court, 21 July 2006 –‘Pakistan’ with comment by Dai Yokomizo Case No. 66 International Civil Procedure Law – Jurisdiction – Place of Business of Corporations Supreme Court, 16 October 1981 –‘Malaysia Airlines’ with comment by Anja Petersen-Padberg Case No. 67 International Civil Procedure Law, Recognition of Foreign Judgments, Punitive Damages Supreme Court, 11 July 1997 –‘Northcon I’ with comment by Toshiyuki Kono. Case No. 68 Recognition – Enforcement – Foreign Judgment – Indirect Jurisdiction – Service – Public Policy – Mutual Guarantee Supreme Court, 28 April 1998 with comment by Toshiyuki Kono. Case No. 69 Arbitration Law – Governing Law – Scope of Arbitration Agreements Supreme Court, 4 September 1997 –‘Ringling’ with comment by Felix Burkei. Case No. 70 Arbitral Award – Setting Aside – Appropriateness of Arbitral Tribunal’s Reasons not Examinable by State Court – Impact of New Arbitration Law Tokyo District Court, 26 January 2004 with comment by Heike Alps. Case No. 71 Arbitration Law – Separability and Arbitrability – Terminated Contract Intellectual Property High Court, 28 February 2006 with comment by Christopher Heath & Luke Nottage Case No. 72 Disclosure of Documents for Internal Use Supreme Court, 12 November 1999 with comment by Motoko Yoshida.

Author: Luke Nottage

Prof Luke Nottage (BCA, LLB, PhD VUW, LLM LLD Kyoto) is founding co-director of the Australian Network for Japanese Law (ANJeL), Associate Director (Japan) of the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS), and Professor of Comparative and Transnational Business Law at Sydney Law School. He specialises in international dispute resolution, foreign investment law, contract and consumer (product safety) law.