Page 17 - ดุลพาห เล่ม3.indd

ดุลพาห

Japanese courts are presumed to have international jurisdiction over the action if the
requirements establishing domestic territorial jurisdiction provided by the Japanese

Code of Civil Procedure (“JCCP”) are met, such as when the defendant has domicile
in Japan or when the place of performance or tort is in Japan. In contrast to this

approach, the “allocating jurisdiction theory” believes that the rules on international
jurisdiction should be determined from the viewpoint of the allocation of judicial

functions to national courts in international society . Japanese courts have recognized
15
the special characteristics of international jurisdiction as being distinct from purely

domestic jurisdiction and introduced guidelines concerning the establishment
of international jurisdiction in the landmark Malaysian Airlines case. The Supreme

Court held in this case that “the determination of international jurisdiction should be
made in accordance with the principles of justice and reason, which require that

fairness be maintained between the parties, and a proper and prompt trial
be secured ”, which was in line with the allocating jurisdiction theory. On the other
16
hand, the Court went on to state that, when the requirements establishing domestic
territorial jurisdiction provided by the JCCP were met, it was in accordance with the

principles of justice to assert jurisdiction over such a case. The subsequent case law
followed Malaysian Airlines’s holding, but also added a corrective rule in

transnational disputes, which empowered Japanese courts to decline international
jurisdiction under certain “special circumstances” if a trial in Japan would contradict

fairness between the parties and inhibit equitable and expeditious administration of
justice . This corrective rule aimed to prevent Japanese courts from asserting
17
exorbitant jurisdiction. Following a series of decisions by the Supreme Court ,
18
jurisprudence regarding the international jurisdiction of Japan was generally

understood as, if the requirements for the domestic territorial jurisdiction were met,

15. See Dai Yokomizo, “The New Act on International Jurisdiction in Japan: Significance and Remaining
Problems,” Zeitschrift fuer Japanisches Recht [Journal of Japanese Law] 34, (2012): 97.
16. Supreme Court, October 16, 1981, 50 Minshu 7, 1451.
17. Yuko Nishitani. “International Jurisdiction of Japanese Courts in a Comparative Perspective,” Netherlands
International Law Review 60, no. 2 (2013): 253.
18. Supreme Court, November 11, 1997, 51 Minshu 10, 4055.

6 เล่มที่ ๓ ปีที่ ๖๕