近日，日本最高法院（Japanese Supreme Court）发布判例解释日本仲裁法中的仲裁员披露规定。日本最法院认为，现行日本仲裁法第18（4）条规定的仲裁员披露所有可能导致对仲裁员的公正性和独立性产生怀疑的信息。这种总括性或是预先放弃将来潜在的冲突（blanket disclosures or advance waivers of potential future conflict）并不能满足现实需求。而披露的事实既是要仲裁员所知悉的，也是要具有合理可能性的可查明事实。（The Supreme Court held that an arbitrator must disclose both potential comflicts of which they aware and those that may be normally ascertained by an investigation that is reasonably possible.）

最高法院引入了一项新的法律标准，改变了之前的日本大阪高级法院（Osaka high court）在Sanyo Electric Co. Ltd一案中的所青睐的撤销仲裁裁决的做法。该案是Sanyo Electric公司及其附属机构与美国经销商的争议，该争议适用日本商事仲裁协会仲裁规则在日本商事仲裁协会提起仲裁（JCAA）。这个新标准对仲裁裁决的执行带来机遇和挑战，仲裁员和当事方综合利用该法律规定保护仲裁裁决的执行权利。

Sanyo（日本三洋株式会社）与美国前经销商（U.S. Distributors）达成关于Sanyo的空调经销协议，该协议中含有争议仲裁条款，约定争议在JCAA仲裁，适用JCAA仲裁规则，由三位仲裁员组成仲裁庭，仲裁地点在大阪（Osaka）。尽管双方间存在有效仲裁协议，但是美方在美国提起系列诉讼，Sanyo相应的在日本提起仲裁。

依据JCAA仲裁规则，仲裁庭中的每个仲裁员应提交公正性和独立性申明。最终仲裁庭做出了有利于Sanyo的裁决，相对方也在日本提起诉讼申请撤销仲裁裁决。

三人仲裁庭中有位仲裁员是新加坡的执业律师， 他主张仲裁员所在的律所的律师可以在于本仲裁案件无关的事项中向本仲裁案件的当事人提供咨询意见或者代理该方或者其关联公司（One of the arbitrators, a practicing attorney based in Singapore, also stated that attorneys from the arbitrator’s firm “may, in the future, advise or represent the parties to this arbitration and/or their affiliates in matters unrelated to this arbitration.”）， 该经销商诉讼中主张新加坡的仲裁员在仲裁开始后仲裁程序进行过程中又代理了松下的一家关联公司与该项争议无关但是同样是该经销商参与的一个独立的仲裁案件。

这一信息，该仲裁员未作披露。（Distributor alleged that the Singapore based arbitrator failed to disclose that, after the arbitration had been underway for some time, an unconnected attorney with the arbitrator’s firm appeared to begin representing a separate Panasonic subsidiary in connection with an unrelated matter in the U.S.）

日本地方法院驳回了经销商提起的异议，上诉后最高法院改变下级法院的裁定，撤销了仲裁裁决。最高法院裁判中认为：

JapaneseSupreme Court Issues Precedent-Setting Decision Interpreting the JapanArbitration Act

The Supreme Court of Japan recently issued a precedential decision interpreting, for the first time, the arbitrator disclosure requirements of the Japan Arbitration Act (the “Arbitration Act”).[1] The Supreme Court held that Article 18.4 of the Arbitration Act—requiring arbitrators to disclose all“facts likely to give rise to doubts as to his/her impartiality or independence”—(1) is not satisfied by blanket disclosures or advance waivers of potential future conflicts, and (2) requires disclosure of facts both known to an arbitrator or “that can be normally ascertained byan investigation that is reasonably possible . . . .”[2]

The Supreme Court’s holding introduces a new legalstandard and reverses a prior Osaka high court decision setting aside anarbitration award in favor of Sanyo Electric Co., Ltd. and certain of itssubsidiaries (“Sanyo”) in a dispute with its former U.S. distributorunder the Commercial Arbitration Rules of the Japan Commercial ArbitrationAssociation (“JCAA”). This new standard presents opportunities andchallenges for enforcing arbitration awards in Japan, and suggests measuresthat both arbitrators and parties can use to protect their awards.

Morrison & Foerster attorneys successfullyrepresented Sanyo in the initial international arbitration, withIto & Mitomi (in association with Morrison & Foerster)attorneys representing Sanyo in the related court proceedings and appeals.

Background

Although many specifics of the underlying disputeare confidential, the Supreme Court’s decision is public and describes certainfacts important to their ruling:

Sanyo entered into an agreement witha former U.S. distributor and its related companies (“Distributor”), forthe sale of Sanyo branded air conditioning equipment. That agreement containedan arbitration clause requiring any dispute between the parties to be resolvedthrough binding arbitration, in Osaka, Japan, before a three-person panel underJCAA rules.

Despite this arbitration clauseDistributor threatened to, and eventually did, file suit against Sanyo in theU.S. regarding their agreement. In response, Sanyo successfully moved to compelarbitration in Japan. Shortly before that arbitration began, as was widelyreported at the time, Sanyo became a wholly-owned subsidiary of PanasonicCorporation.

In accordance with the JCAA’s rulesall three arbitrators submitted declarations of impartiality and independence.One of the arbitrators, a practicing attorney based in Singapore, also statedthat attorneys from the arbitrator’s firm “may, in the future, advise orrepresent the parties to this arbitration and/or their affiliates in mattersunrelated to this arbitration.”

An award was eventually issued inSanyo’s favor and Distributor responded by filing suit seeking to set aside theaward. Distributor alleged that the Singapore based arbitrator failed todisclose that, after the arbitration had been underway for some time, anunconnected attorney with the arbitrator’s firm appeared to begin representinga separate Panasonic subsidiary in connection with an unrelated matter in theU.S.

While the district court dismissed Distributor’sinitial challenge, the high court reversed on appeal and set aside the arbitralaward. The high court’s decision was based on two legal holdings: First,Article 18.4 of the Arbitration Act obligates arbitrators to disclose all“facts likely to give rise to doubts” regarding an arbitrator’s impartiality,but merely stating that “a conflict of interest may arise in the future” isinsufficient. Second, arbitrators are not excused from disclosing facts they donot know. Rather, arbitrators “bear the burden of conducting an investigationin order to disclose any facts that can be learned without undue exertion.”

In reversing the high court, the Supreme Courtagreed with the first holding regarding the insufficiency of so-called “advancewaivers” but disagreed with the second holding. The Supreme Court instead heldthat an arbitrator must disclose both potential conflicts of which they areaware and those “that may be normally ascertained by an investigation that isreasonably possible.” Because, however, the appellate record was unclear as towhat investigation had been performed, the Supreme Court also remanded the matterto the high court for further fact finding.

Challenging Arbitration Awards in Japan

Although a signatory to the New York Convention onthe Enforcement of Arbitral Awards (“New York Convention”), the processof enforcing arbitration awards in Japan is not necessarily straightforward andprovides multiple opportunities for parties looking to resist enforcement. TheSupreme Court’s new legal standard for arbitrator disclosures, with an emphasison fact-based “reasonableness,” may well result in Japanese arbitral awardsfacing additional challenges.

Japanese courts, in general, use a “dual-court”system to enforce arbitral awards. Under this system, civil courts must firstissue an “execution order” to make the award judicially enforceable. Once theexecution order has been issued a separate enforcement court handlesproceedings seeking to collect on the award through a process called“compulsory execution.” For awards made in Japan, an opposing party can alsobring a separate action in civil court to have the award set side.

Parties seeking to resist enforcement in Japan canchallenge both the execution order, if one is sought, and bringa separate action to set aside the award. This may create two cases, based onessentially the same set of facts and law, where parties end up litigating thesame issues twice. Although courts will typically stay execution orderproceedings while a related set-aside case is pending, there is no requirementthat one court show deference to the other. In other words, it is possible thatone court will decline to set aside the award only to have the execution ordercourt reach an opposite conclusion and refuse enforcement. Parties may alsoappeal from a loss in either action, adding additional complexity and time.

The grounds for non-enforcement (Article 45.2) andset aside (Article 44.1) under the Arbitration Act are essentially the same asthose in Article 5.1 of the New York Convention. Distributor’s challenge herewas based on Article 44.1(vi) of the Arbitration Act, allowing courts to setaside awards when “the composition of the arbitral tribunal or the arbitralproceedings were not in accordance with the provisions of the laws of Japan.”While the Supreme Court’s decision to uphold an arbitral award is a positivedevelopment for arbitration in Japan, the newly articulated legal standard forarbitrator disclosures based on “reasonableness” appears to invite lower courtsto perform a fact-based investigation of arbitrators’ conduct. This potentialfor additional inquiry, across multiple trial and appellate courts, may furthercomplicate the arbitral enforcement process in Japan.

Key Take-Aways

The Supreme Court’s new standards for evaluatingarbitrator conflict disclosures suggest some measures that both arbitrators andparties to arbitration in Japan can take to protect the enforceability of theirawards:

Avoid blanket advance waivers. The Supreme Court has spoken clearly that so-called “advancewaivers” of potential conflicts are not effective under Japanese law. Instead,to the extent that potential conflicts arise during the course of arbitrationthey should be specifically disclosed.

Maintain factual records regardingefforts taken to check conflicts. The key factual question posed by the Supreme Court’s ruling iswhether an arbitrator’s conflicts check was “reasonable.” Maintaining recordsregarding a review of potential conflicts or any investigation provides a readysource of proof in case of a future challenge. Note that the Supreme Court hereremanded for just such as fact finding exercise.

Review arbitrator disclosures early. Nearly all arbitration procedures, including those of the JCAA,allow parties to review arbitrator disclosures as part of the appointmentprocess. Arbitrators making, or parties receiving, such disclosures shouldreview them early to ensure that they comply with the disclosure requirementsand that potential grounds for challenge are not left unresolved.

Prepare for a complicatedenforcement process. As noted above, the processfor enforcing arbitration awards in Japan is relatively complex and presentsseveral opportunities to delay or challenge enforcement. In deciding where andwhen to enforce an award, parties should take into consideration the potentialset aside risk under the Supreme Court’s new standards as well as the potentialdelays that even a non‑meritorious enforcement challenge could cause.

For now, the next step is to see how the Osaka highcourt interprets the Supreme Court’s directions on remand.

[1] A copy of the Arbitration Act,in unofficial English translation, is available at http://www.jcaa.or.jp/e/arbitration/JapaneseArbitrationAct.pdf.

[2] The Supreme Court’s decision,in Japanese only, is available at http://www.courts.go.jp/app/files/hanrei_jp/306/087306_hanrei.pdf.