2. Recognition and Enforcement of Foreign Judgments

2. Recognition and Enforcement of Foreign Judgments
   2.1. Legal Basis of Recognition and Enforcement
        2.1.1  Statutory Provisions
        2.1.2. Foreign Court
        2.1.3. Foreign Judgments
   2.2. Requirements for Recognition and Enforcement
        2.2.1. Finality
        2.2.2. Jurisdiction
        2.2.3. Notice of Appearance
        2.2.4. Public Policy
        2.2.5. Conflicting Judgments
        2.2.6. Reciprocity
        2.2.7. Proof
   2.3. Effect of a Foreign Judgment
        2.3.1. Applicable Law
        2.3.2. Res Judicata
        2.3.3. Enforcement Procedure

2.1. Legal Basis of Recognition and Enforcement

2.1.1 Statutory Provisions

Article 200 of the C.C.P. deals with the recognition of foreign judgments. Other articles of the C.C.P. used to provide for enforcement but these replaced in 1979 by a provision in the Civil Execution Law.

In relation to recognition, art. 200 of the C.C.P. stipulates: A final judgment of a foreign court shall be valid only upon the fulfillment of the following conditions:

1. That the competence of the foreign court is not denied in laws and orders or treaty;
2. That the defeated defendant, being a Japanese, has received service of summons or other necessary process to commence the proceedings otherwise than by a public notice; or, has appeared without receiving service of such summons or other process;
3. That the judgment of a foreign court is not contrary to public order or good morals in Japan;
4. That there is mutual guarantee.

The former provisions relating to the enforcement of foreign judgments were arts. 514 and 515 of the C.C.P.

Article 514 provided:

1. Execution based on the judgment of a foreign court may be carried out only when its legality is pronounced by a judgment of execution by the Japanese court.
2. An action demanding a judgment of execution shall be under the competence of the district court of the general forum of the debtor or, in the case where there is no such general forum, the court which has competence over an action against the debtor under the provision of Article 8.

Article 515 provided:

1. A judgment of execution shall be rendered without inquiring into the correctness of the adjudication.
2. An action for a judgment of execution shall be dismissed in the following cases;
   1. where the conclusiveness of the foreign judgment is not proved;
   2. where the foreign judgment does not fulfill the conditions set forth in Article 200.

As was mentioned above, arts. 514 and 515 no longer represent the law in Japan. Indeed arts. 515 to 736 of the C.C.P. were repealed in their entirety in 1979 and replaced by the newly enacted Civil Execution Law. Article 24 of the C.E.L. replaced arts. 514 and 515 of the C.C.P. The new article provides:

1. An action demanding a judgment of execution based on the judgment of a foreign court shall be under the competence of the district court of the general forum of the debtor or, in case where there is no such general forum, it shall be under the competence of the district court where the subject matter of the claim or any attachable property of the debtor is located.
2. A judgment of execution shall be rendered without inquiring into the correctness of the adjudication.
3. An action under paragraph 1. shall be dismissed where the conclusiveness of the foreign judgment is not proved, or where it does not fulfill the conditions set forth in various subparagraphs of Article 200 of the Code of Civil Procedure.
4. In a judgment of execution, it shall be declared that an execution is granted under the judgment of a foreign court.

2.1.2. Foreign Court

Article 200 of the C.C.P. and art. 24 of the C.E.L. refer to judgments of a "foreign court". The term is not defined but has been interpreted to mean a permanent judicial organization exercising civil jurisdiction in a foreign country although its organization and procedure may be different from those of Japanese court.2

The term "foreign court" is therefore not confined to civil courts but would include an administrative or criminal court which was exercising civil jurisdiction in exceptional cases.3 This largely corresponds to the situation in Anglo-Australian common law where a foreign judgment would include an award of civil damages in foreign criminal proceedings4 and an order of a foreign bankruptcy court which is equivalent to a foreign civil judgment.5 However, where enforcement is sought not at common law but under foreign judgments legislation, only the judgments of designated courts can be enforced.

In Japan the term "foreign court" is not limited to superior courts and the court's ranking in the foreign country has no bearing on the recognition and enforcement of its judgment. All or only some of the courts of a foreign country may be designated in a particular case.

2.1.3. Foreign Judgments

Under the C.C.P. Japanese courts can grant three forms of relief--an order for the payment of a certain sum of money or the delivery up of property or the performance or non-performance of a certain act; an order confirming the existence or non-existence of certain rights or legal relationships; and an order declaring the creation or change of certain rights or legal relationships.

With regard to foreign judgments the Japanese courts recognize and enforce not only money judgments but also foreign judgments awarding their forms of relief. However, the relief must be of a type that can be awarded by a Japanese court and must therefore fall within one of the three categories mentioned above.6.

In Japan, foreign judgments ordering the payment of taxes or penalties are not recognized under the C.C.P. since the foreign court which rendered the judgment is not considered to be a court exercising civil jurisdiction.

2.2. Requirements for Recognition and Enforcement

As noted above art. 200 of the C.C.P. sets out various conditions which must be fulfilled before a foreign judgment will be recognized in Japan. These same conditions also apply to the enforcement of foreign judgments by virtue of art. 24(3) of the C.E.L

2.2.1. Finality

Article 200 of the C.C.P. only provides for the recognition of foreign judgments that are final. In Japan a foreign judgment is considered final when an ordinary appeal can no longer be brought; that is, when the time for appealing has expired under the laws of the foreign country.38 Thus foreign interlocutory judgments-those that require further procedural steps before becoming final and judgments that are subject to reversal or modification, either in the court of first instance or on direct appeal, are not recognized or enforced in Japan.

An enforceable but not final judgment such as a Massachusetts State Court's provisional judgment designating which person is to exercise parental power and ordering a change of custody of children is not recognized.39

2.2.2. Jurisdiction

Art. 200(1) of the C.C.P. enunciates a jurisdictional qualification for recognition and enforcement of foreign judgments in Japan namely "[t]hat the competence of the foreign court is not denied in laws and orders or treaty". But this requirement has not been subject to much judicial scrutiny.

Most Japanese commentators are of the view that the jurisdiction of a foreign court (whose judgment is sought to be recognized or enforced) must be examined by the Japanese court under Japanese law and orders or treaty.48 On this view a Japanese court would not recognize a judgment of a foreign court if the latter court assumed jurisdiction that was not recognized under Japanese laws and orders or treaty.

Japan does not at present have any relevant treaty and there is therefore no room for denying the jurisdiction of a foreign court pursuant to treaty. The matter is thus solely determined by Japanese laws and orders. The majority opinion of commentators is that if the foreign court has adjudicatory jurisdiction to hear the case under Japanese laws and orders,49 then its jurisdiction is recognized in Japan for the purpose of giving effect to its judgments.50 Thus the Japanese rules on international competence are applied mutatis mutandis to foreign courts.

If the foreign court is competent under Japanese concepts then its jurisdiction is recognized even if the Japanese courts possess concurrent adjudicatory competence over the case. However, the jurisdiction of foreign courts will be denied if the Japanese courts, or those of a third country, possess exclusive jurisdiction under Japanese laws and orders.51

The Tokyo District Court in its decision of 2 May, 1972(52) examined the meaning of the jurisdictional requirement for the recognition and enforcement of foreign judgments. The case involved a French company which had brought an action for damages for breach of contract against the defendant, a Japanese company, in the Commercial Court of Paris. The French court rendered judgment on 12 March, 1968 and ordered the defendant to pay damages in the amount of F.Fr. 252,598.90. In 1970 the plaintiff brought an action in the Tokyo District Court for execution of the French judgment.

The plaintiff argued that the French court had adjudicatory jurisdiction because the place of performance of the defendant's obligation was in the French Republic and art. 5 of C.C.P. provided that a court being located in the place of performance of the obligation had competence over the case.

However, the District Court held that art. 5 of C.C.P. should not be applied to a case relating to international transactions and that a court located at the place of performance of the obligation did not have jurisdiction over the case under reasonable rules regarding the Japanese court's international competence.

The decision was based on the following grounds:

1. Article 5 of C.C.P. only provided for domestic competence and the application of art. 5 to international transactions brought unreasonable results in that the obligor would always be forced to appear in the court located in the obligee's domicile because the obligee's domicile is the place of performance of the obligation under Japanese laws.
2. The Hague Convention on the Recognition and Enforcement of Foreign Judgments of 1966 did not recognize the place of performance of the obligation.

In this connection, there should be noted the Supreme Court's decision of 16 October, 1981.53 The Supreme Court was not concerned with the jurisdiction of foreign courts and the recognition and enforcement of foreign judgments. However, the courts recognized the application of art. 5 of the C.C.P. for international transactions. Thus the Tokyo District Court's decision is inconsistent with the Supreme Court's decision and probably would not be followed on the art. 5 point. It is therefore expected that judgments rendered in circumstances such as that of the French judgment will not be denied recognition by the Japanese courts on the ground of lack of jurisdictional competence.

The relevant time for determining the existence of a foreign court's jurisdiction in connection with the recognition of its judgment, is when the foreign judgment is examined in Japan and not when the case was brought to the foreign court or when the judgment became final in the foreign country.54 This interpretation is advocated to cover the possibility of a change in Japanese laws prior to the recognition of the foreign judgment and establishing a new exclusive competence of the Japanese courts or abolishing an old exclusive competence or giving effect to a treaty. There is, however, no reported court decision on this point.

The above discussion can be summarized as follows:

1. The majority view of commentators and lower court decisions suggest that the jurisdiction of a foreign court as a requirement of the recognition and enforcement of its judgment (indirect jurisdiction) should be examined by the Japanese court and determined in accordance with Japanese laws and orders on adjudicating competence (direct jurisdiction).
2. Regarding the Japanese laws and orders which are applicable for the above examination of jurisdiction of the foreign court, both the majority opinion of commentators and lower court decisions are of the view that the provisions of the C.C.P. are not directly applicable. Rather reasonable rules ascertained by interpretation of the relevant provisions of C.C.P. and the consideration of impartiality between the parties and the ends of fair and speedy hearing should be applied.
3. Although the majority opinion of commentators does not recognize the jurisdiction of the foreign court based on the place of performance of the obligation, the Supreme Court recognized it under the above reasonable rules.
4. It is therefore submitted that the abovementioned decision of the Tokyo District Court is no longer persuasive authority and the Japanese courts will follow the Supreme Court's decision of 16 October, 1981 and will apply art. 5 and other articles of the C.C.P. relating to domestic adjudicatory jurisdiction for the purposes of determining the jurisdiction of a foreign court in connection with the recognition and enforcement of its judgment.

2.2.3. Notice of Appearance

Article 200(2) of the C.C.P. stipulates as a condition for the recognition of foreign judgments "[t]hat the defeated defendant, being a Japanese, has received service of summons or other necessary process to commence the proceedings otherwise than by a public notice; or, has appeared without receiving service of such summons or other process". There has been so judicial decision examining this requirement however there is the opinion of commentators.

Most commentators take the view that the term "a Japanese" refers to a Japanese individual though some contend that the requirement in art. 200(2) should be applied mutatis mutandis to Japanese juridical persons.71 It is considered that this provision requires that the service of the summons or other initiating process should be effective in accordance with the rules of the foreign country.72 However, it is unlikely that the requirement extends beyond the initiation of the litigation and therefore it probably does not require that the defendant be given an opportunity to be heard after the commencement of the litigation provided that the procedure is effective under the law of the foreign country.73

There is a diversity of commentators' opinion as to whether a special appearance meets the requirement74 but there has been no judicial decision on the point. If the defendant does not appear but the court appoints an agent on his behalf the requirements of the article are not satisfied .75

There is an agreement between the Japanese Government and the Australian Government concerning service abroad of judicial documents. Under this agreement Australian judicial process for commencing litigation can be delivered to a Japanese defendant by a competent Japanese court on the request of the Australian court through diplomatic channels. Such service would meet the requirements of notice under art. 200(2) of the C.C.P. However the Tokyo District Court held in its decision of 21 December, 1976(76) that service of summons of a French court made directly by post from France to Japan, and not through the governmental agreement concluded between Japan and France, did not meet the requirements of art. 200(2). It is therefore submitted that service of summons or other initiating process which does not comply with the procedure prescribed by governmental agreements between Japan and any other foreign country is contrary to art. 200(2) of the C.C.P.

2.2.4. Public Policy

Article 200(3) of the C.C.P. precludes the recognition of a foreign judgment that is contrary to "public order or good morals in Japan" but does not define the exclusionary phrase. There are two lower court decisions relating to this issue. One is considered below in relation to local conflicting judgments.81

The first decision is that of the Tokyo District Court of 6 September, 1969.82 The plaintiff was an American who was the agent of National Telefilm Associates, Inc. of California and the defendant was the Japanese licensee of the same company. The action was for the recognition and enforcement of a California judgment confirming an award of the American Arbitration Association which required the defendant to pay a principal sum as well as costs (fees for the attorneys and arbitration procedure). The defendant alleged as follows:

1. It was necessary under the Foreign Exchange and Foreign Trade Control Law of Japan to obtain the prior approval of the Japanese Government to pay the plaintiff the royalty due under the licensing agreement between National Telefilm Associates, Inc. and the defendant. However, since the Japanese government's approval had not been obtained for paying the royalty, the payment was against the Foreign Exchange and Foreign Trade Control Law of Japan.
2. If the California judgment were recognized and enforced in Japan, the Foreign Exchange and Foreign Trade Control Law would be violated and, therefore, the recognition of this judgment was contrary to the public order of Japan.

The court found that payment by the defendant under the licensing agreement would violate the exchange control law of Japan, but the court held that, since the restriction of exchange payment under this law was provisional in nature for the purpose of the recovery and development of Japan's national economy the payment under the licensing agreement was not contrary to public order and good morals even though it might entail criminal liability.

The majority opinion of commentators agrees with the above court's decision.

In examining the art. 200(3) qualification, some commentators take the view that the court is confined to looking at the text of the foreign judgment and cannot go behind the face of the judgment and enquire into the nature of the underlying transaction or the procedure followed.83 Others are of the opinion that the court can look not only at the text of the foreign judgment but also at the reasoning and the findings of fact.84 However, if a foreign judgment is obtained by a fraudulent act of the parties, its recognition will be denied because it is against the public order even under the former opinion.85

The Tokyo District Court held in its decisions of 6 September, 1969(86) and 24 October, 1970(87) that the court could look not only at the text of the foreign judgment but also at the facts on which the judgment was reasoned.

The Tokyo High Court's decision of 31 March, 1982(88) upholding the Tokyo District Court's decision of 17 September, 1979,89 however, held that the court could look not only at the text of the foreign judgment but also at the facts on which the judgment was reasoned and at the procedure followed as well.

2.2.5. Conflicting Judgments

A foreign judgment that is sought to be recognized or enforced may conflict with a prior judgment of a domestic or foreign court. It might, also, deal with a matter that is currently the subject of litigation in the forum. The Japanese courts have considered this question in the context of the public policy requirement of art. 200(3) of the C.C.P.

The Japanese case in point is the Osaka District Court's decision of 22 October, 1977.99 The plaintiff, Marubeni America Corporation, an American subsidiary of a Japanese trading corporation, brought an action for the recognition and enforcement of a judgment rendered in the State of Washington, United States, ordering the defendant, Kansai, a Japanese machinery manufacturer, to pay indemnity for damage caused in the United States by defective machinery which the defendant had manufactured in Japan.

The machinery itself was first sold in Japan in 1966 by Kansai to Marubeni, a Japanese trading corporation, which in turn sold it to Marubeni America Corporation. Marubeni America sold it to West Coast Machinery Co. who sold it to the Boeing corporation in the United States. An employee of Boeing was injured while operating the machinery and brought a product liability action against West Coast and Marubeni America in the State of Washington. Marubeni America in turn filed a cross-claim for indemnification against Kansai with the same court. On 17 September, 1974 the King County Superior Court of Washington rendered judgment for Marubeni America ordering Kansai to pay $75,000 damages.1

In the meantime Kansai commenced an action against Marubeni America in the Osaka District Court for a declaration that Kansai had no obligation to indemnify Marubeni America in relation to the product liability action. On 14 October, 1974 the Osaka District Court gave judgment confirming that Kansai had no obligation to indemnify the Marubeni America Corporation.

In course both judgments became final. Marubeni America Corporation then brought an action in the Osaka District Court for the recognition and enforcement of the Washington judgment against Kansai. Kansai argued that since the Washington judgment in question was contradictory to the Osaka judgment, the recognition of such conflicting foreign judgment violated public order under art. 200(3) of the C.C.P. The Osaka District Court adopted the defendant's argument and held that the recognition of a foreign judgment which was in conflict with a judgment of the Japanese court rendered over a case involving the same parties and the same facts was contrary to the public order of Japan under art, 200(3).

Although many commentators agree with the conclusion of the Osaka District Court, they question the reasonableness of the Japanese preceding decision confirming that Kansai had no obligation to indemnify Marubeni America Corporation notwithstanding that the case had already been brought to an American court.2 The case is also an illustration of the difficulties that can arise when a matter is litigated in two or more countries. From an Australian viewpoint the Japanese court was perhaps unwise in exercising jurisdiction when the same issue was being litigated in the United States. However, there is apparently no prohibition on the institution of proceedings in Japan in relation to matters that are pending before foreign courts.3 It was the lack of a Japanese doctrine of lis alibi pendens applicable to international litigation which created the resulting difficulty. A Japanese commentator, Sawaki, argues that since a foreign judgment is recognizable in Japan there is no reason to deny the lis pendens effect of proceedings in a foreign court.4

The Osaka District Court's decision involved a situation where a Japanese judgment was delivered and became final after the foreign judgment had been rendered. The same result, therefore, is inferred as a matter of course where a Japanese judgment has already been delivered and becomes final before the foreign judgment.

A third situation would occur where a Japanese action was pending but a foreign judgment had already been rendered and had become final. It is an open question both as regards academic opinion and judicial decision whether such a case would come within art. 200(3) of the C.C.P. so as to preclude the recognition and enforcement of the foreign judgment.5 However some commentators are of the opinion that such a situation would not violate "public order or good morals" within art. 200(3) and that the foreign judgment would be recognized if it met the other requirements.6

2.2.6. Reciprocity

In Japan reciprocity is a requirement for the recognition and enforcement of foreign judgments by virtue of art. 200(4) of the C.C.P. which requires "[t]hat there is mutual guarantee". There is no statutory definition of this reciprocity requirement but various aspects of it have been discussed in decisions of lower courts.

The decision of the Tokyo District Court of 20 July, 1960(17) held that the requirement of mutual guarantee did not have to be expressly provided for in a treaty or international agreement between the countries concerned and it was sufficient if the guarantee was secured under the statutory law or the case law of the foreign country or was found in the judicial practice of the foreign country. The majority of commentators not only support this view but are also of the opinion that an actual record evincing that a Japanese judgment had been recognized in the relevant foreign country is not required.18

In the Great Court of Cassation's of 5 December, 1933(19) the court held that it was sufficient if the foreign country recognized Japanese judgments on conditions which were equal to or more lenient than those of Japan provided that the merits of the Japanese judgments were not investigated. This decision is supported by a majority of commentators.20

There has been no judicial decision in which a Japanese court has found that the foreign judgment requirements of a foreign country were equal to those of Japan. But there are cases holding that foreign judgment rules of certain foreign countries are more lenient than the Japanese rules. In the Great Court of Cassation's decision of 5 December, 1933(21) and the Tokyo District decisions of 19 March, 1957,22 13 October, 1965(23) and 6 September, 1969(24) it was found that the requirements for recognizing foreign judgments under s. 1915 of the Code of Civil Procedure of California were more lenient than those under the C.C.P. of Japan. Section 1915 of the California Code of Civil Procedure simply provided that "[a] final judgment ... of a foreign country, having jurisdiction according to the laws of such country to pronounce the judgment, shall have the same effect as in the country where rendered and also the same effect as a final judgment rendered in this State". The Japanese holding was made despite the fact that the extraordinarily liberal California statute, which has since been replaced, was in large measure ignored by the California courts.25

The Osaka District Court found in its decision of 4 April, 1967(26) that the following requirements of the State of New York were more lenient than those under art. 200 of the C.C.P. of Japan:

1. that the foreign court which rendered the judgment in question had jurisdiction over the case;
2. that the defendant was duly served with a notice and given an opportunity to be heard by a fair court;
3. that the judgment in question was not obtained by fraud; and
4. that the judgment is not against public policy.

Similarly the Tokyo District Court in its decision of 24 October, 1970(27) granted a judgment of execution on a judgment of the State of Hawaii upon a finding that in the United States a foreign judgment is recognized when:

1. it was rendered by a competent court;
2. the defendant was duly served with a notice and given an opportunity to answer; and
3. it was not fraudulently obtained and is in conformity with public policy, in the light of Hilton v, Guyot,28 and the principle of international comity.

The court concluded that above requirements in the State of Hawaii were more lenient than those of art. 200 of the C.C.P.

The Tokyo District Court decided on 13 November, 1967(29) that the requirements under arts. 377 and 107 of the Code of Civil Procedure of the Canton of Zurich, Switzerland were more lenient than those under art. 200 of the C.C.P. Article 377 of the Zurich Code provided that:

Judgments of foreign courts are enforceable if they are final (s.107). Enforcement however can be refused if reciprocity is not granted by the foreign country....

Article 107 stipulated:

Judgments of foreign courts have the same final force as judgments of Zurich courts if they have also become final according to the procedure law of the competent court and jurisdiction pursuant to both foreign and local procedure legislation is established. No force of final judgment can be assumed if the judgment is contrary to public laws of the Canton of Zurich.30

There is, however, an alternative interpretation of the meaning of mutual guarantee in art. 200(4) of the C.C.P. Some commentators argue that it is unrealistic to expect that the foreign judgment requirements of another country will be equal to those of Japan. Nor, they argue, can it be easy to determine whether the foreign judgment requirements of another country are more lenient than those of Japan. Consequently they contend that the reciprocity requirement will be satisfied not only when the Japanese court finds that the foreign judgment requirements of another country are equal to or more lenient than those of Japan but also when the Japanese court finds that there is no substantial difference between the requirements of both countries.31 This reasoning was adopted by the Tokyo District Court in its decision of 17 September, 1979.32 The court discussed the legislative purpose and meaning of the reciprocity requirement in art. 200(4) of the C.C.P. and said:

The requirement of mutual guarantee under art. 200(4) of C.C.P. is designed to achieve equity in international relations. Since Japan and foreign countries have legal systems different from each other, the requirements for the recognition of a foreign judgment should not be construed to require that the criteria of the foreign country be equal to or more lenient than the Japanese criteria in all respects, because such a construction unnecessarily narrows the avenue of recognizing the foreign judgment and is improper in view of the situation of today's international society in which transnational relationships have developed and expanded greatly.

The requirement of mutual guarantee under art. 200(4) should not be so strictly interpreted since it was relaxed from the rigid requirement under the old Code of Civil Procedure in order to attain the legal stability in transnational relations. The requirement of mutual guarantee under art. 200(4) should be regarded to have been met if the respective requirements in Japan and the foreign country for recognition of foreign judgments do not materially differ so as to lose balance and both requirements are identical with each other in important respects.

The court recognized an American judgment rendered in Washington D.C. upon finding that the requirements in the United States did not materially differ so as to lose balance and that the requirements in both countries were identical with each other in important respects.

A prior decision of 20 July, q960(33) espoused much the same principles. The case is significant in that it is the only one in which a foreign judgment was denied recognition on the ground of lack of reciprocity. The Tokyo District Court noted that the requirement of reciprocity was met only when the foreign country which rendered the judgment in question imposed equal or more lenient requirements for the recognition of Japanese judgments or when there was no significant difference between the requirements of both countries.

In this case, the plaintiff, a Belgian company, sued the defendant, a Japanese company, in the Commercial Court of Brussels, Belgium, for the recovery of damages caused by the defendant's non-performance of obligations under a contract to sell cameras. The Belgian court rendered a judgment ordering the defendant to pay damages to the plaintiff. Thereafter the plaintiff brought an action in the Tokyo District Court for the recognition and enforcement of the Belgian judgment. The court found that in Belgium the courts could examine the merits or substance of a foreign judgment whereas Japanese law only permitted a formal examination of foreign judgments. Therefore the court dismissed the action for lack of reciprocity. The court said:

In Japan, under art. 514, 515 and 200 of the C.C.P., the judgment of a foreign country which has no treaty of mutual guarantee with Japan is entitled to a judgment of execution without examining the correctness of the foreign judgment. Only a few related matters are examined in this connection. On the other hand, under article 10 of the Belgian Code of Civil Procedure, the Belgian court may grant a judgment of execution to the judgment of a foreign country which has a treaty of mutual guarantee with Belgium. There is no provision in the Belgian code which provides the procedure to grant a judgment of execution on the judgment of a foreign country which has no such treaty with Belgium. A judgment of such country is not refused recognition and enforcement in Belgium, but is subject to examination as to the correctness of its content although it is assumed by virtue of international comity that the finding of facts properly served the basis of judgment. Upon such examination, the Belgian court will then decide whether or not a judgment of execution shall be granted to the foreign judgment in question.

The foregoing discussion can be summarized as follows:

1. There is a diversity of lower court decisions and commentators' opinions regarding the definition of the reciprocity requirement under art. 200(4) of the C.C.P.
2. One view is that it suffices if the foreign country recognizes the Japanese judgment under such requirements as are equal to or more lenient than those of Japan under art. 200(4) of the C.C.P.
3. The other view is that it suffices not only if the criteria of the foreign country are equal to or more lenient than the Japanese criteria, but also if the respective requirements in Japan and the foreign country for the recognition of foreign judgments do not materially differ so as to lose balance and that both requirements are identical with each other in important respects.
4. A judgment of a foreign country such as Belgium where the recognition of Japanese judgments is subject to examination as to the correctness of their content is not recognized in Japan because of lack of reciprocity.
5. The criteria of California, Hawaii and Washington, D.C., in the United States, and the Canton of Zurich, Switzerland, have been held by the lower courts to be similar to or more lenient than those of Japan.

2.2.7. Proof

Under the C.C.P. it is for the court to determine whether the requirements for the recognition of a foreign judgment are fulfilled. This is shown in the Tokyo District Court's decision of 27 May, 1965.51 However, in practice the court's investigation is usually based on the claim and evidence submitted by the party who seeks the recognition of the foreign judgment. If the court thinks that the party's submitted evidence is not enough to enable it to determine the question it can order the party to submit further evidence.

2.3. Effect of a Foreign Judgment

2.3.1. Applicable Law

When a foreign judgment is recognized under Japanese law the question of what effect it should be given then arises.

Although there is no statutory provision on this issue, the majority opinion of commentators is that the foreign judgment should be given in Japan such effect as that which it has under the law of the foreign country where the judgment was rendered.52

It is therefore thought that a Japanese court should look to the law of the foreign country where the judgment was rendered to determine various issues relating to the effect of the foreign judgment in Japanese litigation.

Among these are the question of the res judicata effect of the judgment53 and the question of which persons are bound by the judgment (where only the parties to the judgment are bound or whether it affects a third party and whether it binds successors of the plaintiff's rights or the defendant's obligations).

2.3.2. Res Judicata

The majority opinion of commentators is that the res judicata effect of a foreign judgment is to be determined in accordance with the law of the foreign country where the judgment was obtained. On the other hand it is pointed our that if the law of the foreign country gives a broader effect than Japanese law, the recognition of such broader effect is questionable.54

Another question is whether it is legally possible under Japanese law for a plaintiff to bring an action in Japan on the original cause of the prior action in the foreign court after having obtained a foreign judgment in which all or a part of his claim was accepted by the foreign court.

The prevailing opinion of commentators is that such an action is not permitted under Japanese law since there is no substantial need for such action.55 The commentators point out that it is more convenient for the plaintiff to request the Japanese courts to recognize and to enforce his already existing foreign judgment and that such re-litigation based on the original cause should be avoided. However there has been no judicial decision on these points.

2.3.3. Enforcement Procedure

A foreign judgment is not directly enforceable in Japan even if the foreign judgment meets the requirements for its recognition under art. 200 of the C.C.P. A foreign judgment which is recognizable under art. 200 of the C.C.P. must first be reduced to a judgment of execution under art. 24 of the Civil Execution Law (C.E.L.) and then may be enforced by all means available under C.E.L. Therefore a foreign judgment requiring methods of enforcement which are not permitted in Japan is not enforceable under the C.E.L. For example, specific enforcement by putting the debtor in jail is not available in Japan.

Under art.24(2) of the C.E.L. a Japanese court can not review the facts which were found by the foreign court and the parties can not allege any new fact which had existed but was not raised before the foreign judgment was rendered. However, some commentators contend that the parties can allege facts which occurred after the judgment was rendered, such as the modification or discharge of obligation by the mutual consent of the parties, during the enforcement procedure in Japanese court.56