The Inaugural ANJeL-in-Europe symposium, organised by the new ANJeL-in-Europe convenor A/Prof Giorgio Colombo from Nagoya University, will be hosted by the University of Pavia on 23 September 2019. This workshop-style symposium will share current (or planned) research comparing Japanese law. Presenters will explain not only their (expected) findings but also whether and how their choice of topic or research method may be influenced by their home jurisdiction’s legal tradition or approach towards comparative law. The symposium will then consider scope for productive research collaboration, as well as potential joint teaching and community outreach initiatives, across national borders within and beyond Europe. ANJeL co-directors and other key members will share their experiences of such cross-institutional cooperation since 2002. A broader aim of this symposium is to explore establishing a similar network of scholars and legal professionals across Europe, interested in engaging with Japanese law.
[For the final list of Participants and presentation topics, see Program_Pavia_23Sept2019.]
Participants (originally):
1. A/Prof Giorgio F. Colombo (Nagoya University, Japan) [primary convenor]
2. Prof Luke Nottage (USydney, ANJeL Co-director, Australia) [co-convenor]
3. A/Prof Leon Wolff (QUT, ANJeL Co-director, Australia)
4. Dr Heather Roberts (ANU, ANJeL Co-director, Australia)
5. Prof Moritz Baelz (Goethe University, Frankfurt, Germany)
6. Prof Harald Baum (MPI Hamburg, JJL general editor, Germany)
7. Prof Beatrice Jazulot (Sciences-Po and ENS Lyon, France)
8. Dr Luca Siliquini-Cinelli (Dundee University, UK)
9. Dr Andrea Ortolani (Keio University, Japan)
10. Prof Dimitri Vanoverbeke (KU Leuven, Belgium)
11. Dr Kay-Wah Chan (Macquarie University, Australia)
12. Prof Souichirou Kozuka (Gakushuin University, Japan)
13. Prof Giulia Rossolillo (University of Pavia, Italy) [local host]
14. A/Prof Renzo Cavalieri (“Ca’ Foscari” University, Venice, Italy)
15. Prof Francisco Barberán (University of Zaragoza, Spain)
16. Prof Roger Greatrex (Lund University, Sweden)
17. Prof Mark Levin (University of Hawai’i, USA)
18. Prof. Masako Kamiya (Gakushuin University, Japan)
19. Dr Elisa Bertolini (Bocconi University, Italy)
20. Adj/Prof Michela Riminucci (Kobe University, Japan)
21. Dr Matteo Dragoni (Pavia University, Italy)
Program (original draft)
9:30am-10:30am
Welcome and 1st roundtable discussion – The State of Japanese Law Studies in Europe
Moderator: Renzo CAVALIERI
Short reports by:
Dimitri VANOVERBEKE – Benelux
Béatrice JALUZOT – France
Moritz BAELZ/Harald BAUM – Germany
Giorgio F. COLOMBO – Italy
Roger GREATREX – Scandinavia
Francisco BARBERAN – Spain
Luca SILIQUINI-CINELLI – UK
10:30am-11.00 Coffee break and networking
11.00-12:40 First session: Japanese law, Comparative law, Historical Perspectives
Moderator: Elisa BERTOLINI
Legal Orientalism – A Concept and its Implications for the Understanding of East Asian Law – Moritz BAELZ
Comparison of Law, Legal Transplants and International Legal Fashion: Experiences from Japan and Germany – Harald BAUM
Unequal Treaties and Japanese Law in the XIX Century – Béatrice JALUZOT
The (not so much) changing role of law in Japan? A decade of participation of civilians in the criminal procedure in a historical perspective (1938 & 2019) – Dimitri VANOVERBEKE
12:40-2pm Lunch break (catered by ANJeL)
2-3:40pm Second session: Current Issues and Criticalities of Japanese Law: Ethics, Gender.
Moderator: Michela RIMINUCCI
Current Issues in the Legal Ethics Regulatory System in Japan – Kay-Wah CHAN
Legal Ethics: a Disciplinary Actions in Practice – Masako KAMIYA
Gender and Legal Education in Japan – Mark LEVIN
How Japanese Women Experience the Legal System: A Multi-Faceted, Mixed-Methods Study – Leon WOLFF
3:40-4pm Coffee break
4-5:40pm Third session: Dispute resolution, adjudication, private law.
Moderator: Matteo DRAGONI
Developing Japan as a Regional Hub for International Dispute Resolution: Dream Come True or Daydream? – Luke NOTTAGE
The Style of Judgments by Japanese Courts: How They (Judges) Write Them, and How We (Academics) Read Them – Soichiro KOZUKA
Andrea ORTOLANI – Receptions and Rejections in the Reform of the Law of Obligations
Luca SILIQUINI-CINELLI – Japanese Contract Law Reform: Reflections on the Theory and Practice of Comparative Law
5.50-6.20 2nd Roundtable: intra- and extra-EU collaboration on (a) research, (b) teaching, (c) outreach (facilitated by Wolff and Roberts)
6.20-6:30pm Closing remarks – Giorgio F. COLOMBO
PRESENTATION ABSTRACTS
Comparison of Law, Legal Transplants and International Legal Fashion: Experiences from Japan and Germany – Harald BAUM
Somewhat belatedly, or, perhaps, much too early (?), Japan had recently jumped on the international bandwagon of “good” corporate governance. Against much political resistance from the domestic industry, two key international fashionable corporate governance tools originating in the UK and US respectively were introduced: a corporate governance code and the concept of the independent director as a monitoring device. Both legal instruments are designed for improving the corporate governance of listed stock companies. Each of the two originates from a different institutional environment and a different regulatory tradition. At first sight at least, both seem not to fit well in Japan’s specific institutional setting. Furthermore, it appears to be somewhat puzzling, that the number of listed companies has been growing in Japan for the last 25 years (although the economy has been weak) in the absence of a corporate governance code or independent directors whereas, in sharp contrast, the number of listed companies in the UK and the US has been declining since 25 years – an abundance of independent directors and the existence of a corporate governance code (or principles in the US) notwithstanding.
This raises a couple of questions, most prominently the policy question about the motives and intentions of the Japanese rulemaker(s). Are the regulatory efforts primarily aimed at finding the best solution for an unsolved national legal problem or is their agenda rather to address the international arena, i.e. in this case international investors, by following an international “legal fashion“? Also, questions about the methodology of comparative law come into play. As all regulation comes with a price tag, often a heavy one, a careful analysis about costs and benefits seems appropriate when it comes to the adoption of legal transplants. As early as 1748, Montesquieu cautioned that it might be “un grand hazard” to try to implement foreign legal rules elsewhere.
Legal Orientalism – A Concept and its Implications for the Understanding of East Asian Law – Moritz BAELZ
Teemu Ruskola’s theory on ‘legal orientalism’ has drawn significant attention in recent years (see, id., Legal Orientalism. China, the United States, and Modern Law (Harvard University Press 2013)). Developing on Edward W. Said’s famous critique of Western discourses on the Orient, Ruskola examines how American discourses on Chinese law tend to construct Chinese law as the counterpart of Western law. Often this has resulted in a negative image of Chinese law as static, collectivistic, despotic if not even as `non-law`, but at times Chinese law also has been portrayed as an ideal to be emulated by the West. In both cases, constructing Chinese law has simultaneously helped to define the Western observers’ own legal identity. Of course, constructing one-self by constructing the other is by no means limited to Western observers. Even `self-orientalism` as it is a familiar concept in cultural studies, finds its equivalent in legal discourses.
While Ruskola’s focus is on China, not only the broad term of ‘legal orientalism’ suggests that his concept may well enhance our understanding of Western perceptions of East Asian law more generally. As Ruskola pointedly states, legal orientalism tells the Western observer more about Western notions of law than about Chinese law in China. This presentation, rather than confirming or refuting American notions of Chinese law, explores to what extent the concept of ‘legal orientalism’ is useful for improving our understanding of Japanese law. Are we facing similar heuristic problems? To what extent is the historic legacy of the confrontation between East and West in the 19th century shaping our understanding of Japanese law in a similar manner as, in Ruskola’s view, it still matters of American notions of Chinese law? If so, what are the possible conclusions which we should draw for how we study Japanese law in the Europe today?
My theoretical assessment of Ruskola’s theory shall be complemented by specific examples from various fields of Japanese law such as dispute resolution and corporate governance. The result cannot be to offer an escape from legal orientalism or from the restrictions of having a Western perspective. However, for a mutual understanding between East and West raising awareness about our conditions of understanding and thus minimizing the risks of distorting essentialization seem essential even in the field of law.
Current Issues in the Legal Ethics Regulatory System in Japan – Kay-Wah CHAN
The legal system of a country includes not only its laws but also the legal institutions, an essential component of which is the profession of lawyers. The lawyer profession is usually subject to a regulatory system, which commonly includes a system to regulate legal ethics. This generally includes a system of ethical standards (which may be stipulated by legislation, ethical code, regulations or rules) and a mechanism to discipline lawyers who have committed ethical misconduct. The mechanism of such ethics regulatory systems as well as their “official” and actual objectives may vary among different countries. The regulatory power may be vested with a governmental agency, an independent body, or the profession itself. Ordinary people and/or the aggrieved parties may be involved in the process. The objectives and impact of such involvement may vary among different jurisdictions. The extent of transparency of the disciplinary process may also vary. The profession of lawyers (bengoshi) in Japan is self-regulated. Bar associations exercise disciplinary power over the profession. The process involves non-bengoshi. However, their participation may be affected by structural weaknesses in the system (Chan and Whalen-Bridge 2018). Is the current system effective in deterring ethical misconduct? Veteran bengoshi are found to be more prone than junior bengoshi to commit ethical misconduct (Chan 2017; Ishida 2017). What are the contributory factors? What are the actual objectives of the lawyer disciplinary system in Japan? Are these different from the situation in other jurisdictions? This paper explores the current issues in the legal ethics regulatory system in Japan. It will also highlight the research methodologies in analysing such issues. A study (including comparative study) of the legal ethics regulatory system in Japan will contribute to the academic discourse on the legal profession, legal ethics, lawyer disciplinary systems and legal ethics research methodology. It will also have contributions to sociological, historical, political, cultural and/or area studies as well as analysis of the value of the current legal ethics regulatory system in the Japanese society.
“The style of judgments by Japanese courts: how they (judges) write them, and how we (academics) read them” – Soichirou KOZUKA
While the Japanese law belongs to the civil (continental) legal family in the broad sense, one notices some unique features of it if he/she takes a closer look. The significance of precedents, much closer to the case law under the common law system, is one example. Another unique system is the stylised legal analysis approach for judges, known as “yoken jijitsu” method. Based on these findings, this presentation will explore into how Japanese judges write their decisions, and consider whether such a judgment style corresponds with the Japanese academics’ approach in reading the case law. Part of this presentation derives from a comparative study of “legal reasoning” with two colleagues in Singapore (an American and a Dutch by nationality). Because the framework of comparative study will require limiting the volume and issues covered for each jurisdiction, I will make a full exploration into the Japanese law here and will refer to it in the comparative study.
How Japanese Women Experience the Legal System: A Multi-Faceted, Mixed-Methods Study – Leon WOLFF
In Law in Everyday Japan: Sex, Suicide, Sumo and Statutes, Mark West argued that Japanese law scholars should focus on how Japanese engage with law in “everyday” life. It is an injunction he does not follow himself: few of his chapters — such as disputes in the professional sumo organisation — qualify as case studies of “everyday” disputes. Although West is right to criticise the preoccupation of scholars on elite legal institutions and actors or large-scale social problems, I argue that an alternative approach is necessary to provide a richer, nuanced explanation of law’s role in Japanese society: by exploring how the same social group might experience the law. In particular, I explore how Japanese women experience the Japanese legal system in different ways — as legal professionals, litigants and interested bystanders. Using mixed methods (quantitative statistical tests, qualitative interviews, doctrinal exegesis and humanities-style cultural analysis), I seek to develop a gendered experiential theory of Japanese law.
The (not so much) changing role of law in Japan? A decade of participation of civilians in the criminal procedure in a historical perspective (1938 & 2019) – Dimitri VANOVERBEKE
A decade has passed since civilians were allowed to participate in the criminal trials of those accused of the worst crimes. Democratization of justice and rectifying the flaws of a procedure that was under attack was aimed for by the members of the commission for the reform of the legal system in Japan who designed the lay assessor system. This is not Japan’s first time to allow citizens to participate in the criminal procedure. In the second decade of the twentieth century, concerns with participation of the people in state-affairs and issues with the existing criminal procedure triggered important judicial reforms too, ultimately resulting inter alia in the implementation in 1928 of a trial by jury. In this presentation I will focus on the tenth anniversary of both jury systems; the trial by jury (1928-1938) and the lay assessor system (2009-2019). I will do this by introducing two criminal trials involving citizens as lay judges, discuss the perception of law at the time and the reaction by the stakeholders on the system in the wake of these specific cases. By doing so I hope to contribute to the socio-legal understanding of the relation between judicial reforms and the effects of such reforms.
Japanese Contract Law Reform: Reflections on the Theory and Practice of Comparative Law – Luca SILIQUINI-CINELLI
Comparative legal scholars have long complained about their discipline’s inability to reach its long awaited “maturity” (Örücü). This argument is usually substantiated by pointing to comparative law’s “never-ending methodological self-doubts” (Zumbasen). Yet the practice of comparative law proves these laments to be misplaced: as a knowledge-exchange technique, lawyers (including legal academics themselves) have made extensive use of the comparative analysis of (legal) norms, (social) rules, modes of juridical reasoning, normative experiences, institutional structures, and regulatory dynamics broadly understood. As the theoretical import which has been shaping the development of its law of contract shows, Japan is a key-protagonist of this phenomenon. Starting from this premise, the present article asks what insights the recent reform of Japan’s contract law might offer on the discrepancy between the theory and practice of comparative law, particularly in regards to ‘transplanting’ processes (a term to be used cautiously). It does so by reflecting on the reformers’ intention to (also) create a contract law more consistent with Western standards and related methodological choices. The fact that about half of the reforming Working Group members were legal academics might indeed provide some valuable insights regarding the need for comparative law scholars to frame new analytical models capable of efficiently theorising (that is, conceptualising and operationalising) comparative encounters.
Receptions and Rejections in the Reform of the Law of Obligations – Andrea ORTOLANI
On 26 May 2017 the Japanese Parliament approved a wide reform of the provisions of the Civil Code on obligations. The bill presented to the Houses was drafted by leading legal scholars of the country, after more than 10 years of studies and discussions. This presentation will analyse what influence did foreign and comparative law have on the reform.
Developing Japan as a Regional Hub for International Dispute Resolution: Dream Come True or Daydream? – Luke NOTTAGE (et al)
The Japanese government, supported by various stakeholders, has recently been attempting to develop Japan as another regional hub for international business dispute resolution services. Tracking this development is important for both theoretical and practical reasons. How it unfolds should reveal which of various theories for explaining Japanese law-related behaviour have more traction nowadays. Assessing the new initiatives is also important for legal practitioners and others interested in the practical question of where to arbitrate or mediate cross-border business disputes. This paper therefore reports on current attempts to promote existing and new international arbitration centres in Japan as well as the recent establishment of the Japan International Mediation – Kyoto, in the context of intensifying competition from other regional venues for dispute resolution services.
Developing Japan as a Regional Hub for International Dispute Resolution: Dream Come True or Daydream? – Luke NOTTAGE (with James CLAXTON and Nobumichi TERAMURA)
The Japanese government, supported by various stakeholders, has recently been attempting to develop Japan as another regional hub for international business dispute resolution services. Tracking this development is important for both theoretical and practical reasons. How it unfolds should reveal which of various theories for explaining Japanese law-related behaviour have more traction nowadays. Assessing the new initiatives is also important for legal practitioners and others interested in the practical question of where to arbitrate or mediate cross-border business disputes. This paper therefore reports on current attempts to promote existing and new international arbitration centres in Japan as well as the recent establishment of the Japan International Mediation – Kyoto, in the context of intensifying competition from other regional venues for dispute resolution services. [Japan’s evolving engagement with international dispute resolution is also illustrated by the complex multi-level tensions that have escalated with Korea over 2019, analysed in Kluwer Arbitration Blog postings recently.]
