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Case No. 1231 [2003]

Published online by Cambridge University Press:  27 February 2017

Daniel Bodansky  and
Colin P. A. Jones
Colin P. A. Jones
Affiliation:
Doshisha University School of Law
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Extract

Case No. 1231 [2003]. 1416 Saibansho JIHŌ 6. At <http://www.courts.go.jp>.

Saikō Saibansho (Supreme Court of Japan), July 21, 2006.

In a decision issued on July 21, 2006, a five-justice panel of the Supreme Court of Japan effectively overturned seventy-eight years of Japanese jurisprudence on foreign sovereign immunity. The holding in Case No. 1231 [2003] serves to limit the ability of foreign governmenrs to claim immunity from the civil jurisdiction of Japanese courts in cases involving commercial and other activities not of a sovereign character.

The case came before the Supreme Court as an appeal from a decision of the Tokyo High Court. The two companies bringing the appeal had sued Pakistan for the nonpayment of amounts owing under a contract entered into between appellants and another company for the purchase of computer equipment.3 Appellants argued that the company purchasing the computers was connected to the Pakistani defense ministry and was therefore an agent of the Pakstani government. Pakistan claimed that it was immune from suit under the doctrine of foreign sovereign immunity. It also denied that the contracting company was its agent.

Type
International Decisions
Information
American Journal of International Law , Volume 100 , Issue 4 , October 2006 , pp. 908 - 910
Copyright
Copyright © American Society of International Law 2006

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References

1 Case No. 1231 [2003], 1416 Saibansho Jihō 8 (Sup. Ct. Jul. 21, 2006).

2 Although the press has quoted the case as referring to “commercial activities” (shogyōteki na kōi), the language used by the court is actually more delphic, referring several times to “activities of a private law or business managerial nature” (shihōteki naishigyomu kanri tekina kōi). See Gaikoku seifu ni mo saibanken oyobu, Nihon Keizaishinbun July 21, 2006, at 1 (evening ed.) (distributed in English as Top Court Rules Foreign Gov’ts Not Exempted from Civil Lawsuits, Kyodo News Service, Japan Economic Newswire, July 21, 2006).

3 Court OKs Suits Against Nations, Asahi Shinbun, July 22-23, 2006, at 19, available at <http://www.asahi.com/english/Herald-asahi/TKY200607210638.html.

4 7 Daihan minshū 1228 (Great Ct. Judicature Dec. 28, 1928).

5 Court OKs Suits Against Nations, supra note 3.

6 GA Res. 59/38, annex (Dec. 2, 2004).

7 56 Minshū 729 (Sup. Ct. Apr. 12, 2002).

8 Id. For a good description of Yamaguchi and the related precedents and academic debate, see Mizushima, Tomonori, Case Report: Yamaguchi v. United States, 97 AJIL 406 (2003).Google Scholar Note that at the lower-court levels of Yamaguchi, the-status-of-forces agreement between Japan and the United States (Article 18(5) of which contains immunity provisions) was also dispositive but proved to be of secondary importance in the Supreme Court’s decision.

9 See Colin P. A., Jones, Kaoru Inoue’s “Shiho no Shaberisugi “ (Blabbermouth Judiciary): Moral Relief, Legal Reasoning and judicial Activism in Japan, 19 Emory Int’l L. Rev. 1565 (2005)Google Scholar (book review).

10 Id.; see Kaoru, Inoue, Shihō no Shaberisugi [Blabbermouth Judiciary] (2005).Google Scholar