Page 66 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

III. Japanese parochialism and unilateralism

on international commerce

1. Possible implication of the formulation

The Supreme Court could be regarded as not completely opposed to the High
Court’s position, at least in terms of the background consideration for the general

formulation. Therefore it initially appears possible to find a certain coherent line between
the Supreme Court’s judgment and the High Court’s judgment.

However, it is remarkable that, in the Supreme Court’s judgment, it is difficult
to find any serious consideration taken of the characteristics of different kinds of

transactions. The criterion of the state ‘ready for use’ adopted by the Supreme Court
bears no direct relation whatsoever with the point as to which market the transaction
legally relies on. The latter point was taken into consideration in a very obscure and

unconscious manner by the Supreme Court.
In addition, the formulation adopted by the Supreme Court, although apparently

bilateral and neutral in terms of the equal treatment of the court’s domestic law and
foreign law, in fact hints at a unilateral and parochial attitude towards international

commerce. The crucial point is to what extent the court’s domestic law is chosen as
applicable. Verification of this point inevitably relates to the ambiguous concepts of
the state ‘ready for use’ and the place of primary use. Although uncertainty always

remains, the general formulation held by the Supreme Court possibly has a crucial
implication.

Remarkably, in most cases, the formulation might lead to the application of
Japanese law, once a car has arrived inland and/or a car is also registered in Japan,
regardless of the possible existence of foreign registration, and regardless of

the succession of good faith transactions having already been carried out abroad.

First of all, the formulation has the implication of excluding the application of

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