Form, Substance, and Neo-Proceduralism in Comparative Contract Law: Law in Books and Law in Action in New Zealand, England, the United States of America, and Japan

<p>Part One of this thesis develops the "form-substance" analytical framework proposed by Atiyah and Summers to contrast English and US law generally, comparing also New Zealand and especially Japanese law. From this perspective, it argues that both US and Japanese law prefer distinctly more substantive reasoning, whereas both English and New Zealand law maintain a more formal orientation. Part Two focuses on three areas of contract law, and the development of contract law theory, arguing that the framework helps explain differing approaches adopted in these jurisdictions. Closer attention to the "law in action" as well as the "law in books", however, results in refinements to their analytical framework. It also suggests that "neo-proceduralist" models of law generally, and private law in particular, may be becoming increasingly important in both explaining and justifying developments in all four legal systems. Part Three introduces several of these models, which go beyond "form-substance" dichotomies without necessarily being inconsistent with them. This thesis therefore aims to offer new perspectives in three disciplines: comparative legal studies, contract law, and general legal theory.</p>

Form, Substance, and Neo-Proceduralism in Comparative Contract Law: Law in Books and Law in Action in New Zealand, England, the United States of America, and Japan

<p>Part One of this thesis develops the "form-substance" analytical framework proposed by Atiyah and Summers to contrast English and US law generally, comparing also New Zealand and especially Japanese law. From this perspective, it argues that both US and Japanese law prefer distinctly more substantive reasoning, whereas both English and New Zealand law maintain a more formal orientation. Part Two focuses on three areas of contract law, and the development of contract law theory, arguing that the framework helps explain differing approaches adopted in these jurisdictions. Closer attention to the "law in action" as well as the "law in books", however, results in refinements to their analytical framework. It also suggests that "neo-proceduralist" models of law generally, and private law in particular, may be becoming increasingly important in both explaining and justifying developments in all four legal systems. Part Three introduces several of these models, which go beyond "form-substance" dichotomies without necessarily being inconsistent with them. This thesis therefore aims to offer new perspectives in three disciplines: comparative legal studies, contract law, and general legal theory.</p>

Interpretation of Corporate Acquisition Contracts in Japan: A Legal Transplant through Contract Drafting

This article explores Japanese transactional lawyers’ attempts to transplant American legal practice concerning corporate acquisition contracts into Japan. Despite their extensive efforts to disseminate legal concepts originating from the common law into the Japanese legal community, their transplantation attempts produced somewhat unexpected results by the promoters of the transplant. Faced with unfamiliar drafting styles and legal concepts, Japanese courts interpreted American-style corporate acquisition contracts in accordance with traditional Japanese-style contract interpretation. As a result, attempts by Japanese practitioners at transplantation was incomplete. This incompleteness is attributable to their inattention to the differences in approaches to contract interpretation between Japanese and New York courts. New York's approach is much more formalistic and literal than Japan's. If fully aware, however, they could have filled the gap by using functional substitutes for American techniques of controlling adjudicators’ contract interpretation which would effectively operate under Japanese law. Japan's experience confirms that a widely supported view in comparative law scholarship that transplanted law does not necessarily operate in the recipient jurisdiction as it did in its host jurisdiction is applicable to the transplantation of contract drafting practices.

Japan as a Source of Legal Ideas: A View from the Mekong Subregion of ASEAN

Much has been written about Japanese law within the context of Japan. Less is known about the application of Japanese legal models outside Japan. A prevailing view among some commentators is that Japanese law scholarship does not offer insights that are useful beyond Japan-based legal studies. Other scholars challenge this perception by invoking Japan’s legal development aid projects in the Mekong subregion of ASEAN—especially in Vietnam, Cambodia and Laos. These projects have been in operation for over twenty years and aim to foster the economic growth of host countries. This article aligns with the view that Japanese law exists beyond, and is influential outside, Japan. It calls for further action by legal specialists to re-examine and re-assess the corresponding influence of Japanese positive law in these countries, both in improving the transparency of those legal systems and enhancing communication among local, comparative and Japanese law experts.

When the law is silent: stigma and challenges faced by male sex workers in Japan

This study considers how invisibility under the law can lead to stigmatisation. It examines how legal silence affects the stigmatisation process and the identity of male sex workers in Japan. Since male sex work is currently not recognised under Japanese law, male sex workers are not subject to control, regulation, punishment or protection. However, the number of male sex workers in Japan is increasing. Many studies have noted that male sex workers may experience double stigmatisation – referring to the stigma associated with homosexuality and the stigma associated with commercial sex. Male sex workers in Japan, however, may face an additional stigma caused by the fact that the law essentially ignores their existence. This paper draws on fieldwork interviews to show how the silence of the law can exacerbate the marginalisation and disempowerment of a vulnerable social group.

Protecting IP Licenses and Jointly Owned IP in the Age of COVID-19: Insolvency and Force Majeure Events under Japanese Law

This article provides an overview and discussion of a multitude of issues that are relevant for IP licensing under Japanese law. The authors recap the results of the legislative process that predominantly addressed the IP licensee’s position in the case of a licensor's insolvency, including the 2020 amendment to the Japanese Copyright Act, and examine whether a comprehensive reform of IP licensing regulations in Japan would be preferable to also offering better protection to trademarks, trade secrets and data licensees. Given that Japanese companies often agree on jointly owning IP generated in the process of software development and other co-development projects, we analyze the risks of joint ownership compared to non-exclusive licenses. To further illustrate such risks that may be even more significant in cross-border constellations, we conduct a comparative study on the actions that a party commissioning the development of new software can take without obtaining the software developer’s consent under Japanese, US and German patent and copyright law. Furthermore, we examine certain unresolved issues that may arise in the case of a party’s insolvency or the impact of force majeure events, and provide suggestions on how to address these when drafting and negotiating IP license agreements.

THE ROLE OF ZAIBATSU IN THE PROCESS OF JAPANESE LAW AND STATE TRANSFORMATION DURING THE MEIJI ERA (1868–1912)

The article discusses the main prerequisites for the emergence and development of zaibatsu as participants in civil traffic, the causes and conditions that have defined the characteristics of zaibatsu, which in some form have persisted until the present time in the Keiretsu. As part of this study, the author analyses changes in regulation of legal relationships arising from the need to develop zaibatsu. The author makes conclusions considering the role of zaibatsu in the industrialization of Japan, the influence of zaibatsu on the development of Japanese law in 1868–1912. Purpose: to determine the extent, nature and prerequisites of the impact of zaibatsu on the development of Japanese State and law in 1868–1912. Methods: the author uses the methods of analysis, synthesis, induction, deduction as well as a historical method. Results: the extent of the impact of dzaibatsu on the development of Japanese State and law in 1868–1912 is determined; the prerequisites for their emergence are identified.

The History of Modern Japanese Law

Japan built its modern legal system on the basis of the codes imported from Europe, namely Germany and France. After the Second World War, there was some influence of US law, e.g. the Constitution and the Code of Criminal Procedure. The new Constitution, which remained unchanged until today, has introduced significant changes in the political and social system of Japan. It was proclaimed that sovereignty rested with the people and not the emperor. The Diet elected by universal election became the supreme body of the state. Another major reform was triggered by the US-Japan Structural Impediments Talks in 1989–1990.

Introduction

Japanese law is part of the Civil law (Franco-German) legal system. There have been discussions on the ‘Japanese legal consciousness’, but now, it is agreed that there is no such ‘uniqueness’ of Japanese law. On the other hand, the approach of the courts in interpreting statutes and their role in interpreting contracts may represent some unique aspects of Japanese law.

Japanese Law

This book analyses the current state of Japanese law after a series of reforms since 1990. In that year, the US–Japan Structural Impediments Initiatives Talk necessitating fundamental changes to the conventional system in Japan was completed. At the same time, the ‘bubble economy’ came to an end and Japan embarked on a long path to economic recovery. As a result, the Japanese legal system has undergone significant changes. Depending on the area of law, not all the reforms were successful, but it is beyond doubt that major changes took place across the board. The core of the book is commercial and business-related laws such as corporate law, securities law, contract law, and competition law. There was a fundamental change in corporate law over past three decades, not the least because of the new Company Law of 2004. The entire system of corporate governance now is very different from the previous insider-dominated system. Major changes took place in securities law after the Japanese ‘Big Bang’. Competition law in Japan, which had once been regarded as ‘dormant’, is now in full operation. The book also considers contract law, which, as part of the Civil Code, has undergone a major change in 2020. In order to understand commercial and business law, accurate understanding of the dispute settlement mechanism and the procedure is needed and this is duly covered. The book addresses these issues by studying the case law as well as legislative history and business practice.