As Japan becomes the latest major Asian economy to digitalise its court systems, critics say the changes aren’t happening quickly enough. While more tech-savvy business hubs Singapore and Hong Kong have adapted to digitalised disputes during the pandemic, Japan is still playing catch up.
Japanese businesses are famously paper-reliant, with fax machines still in regular use across the country, despite attempts to stamp them out. While the government has announced technology initiatives and programmes over the years, it was only in 2021 that Japan’s Supreme Court launched a division tasked with promoting digital reform. But some business leaders remain hesitant.
Considering the developments, Akihiro Hironaka, a partner at Nishimura & Asahi says that Japanese practitioners generally take a conservative approach, and are slow to implement drastic changes to the existing systems to which they are accustomed.
“Digitalisation and modernisation of the litigation process will force practitioners to change their old-fashioned practices: filing paper documents, sending them via facsimile, and attending court hearings physically - even if only for five minutes, to schedule the next hearing,” Hironaka says.
Hironaka says the “digitalisation and modernisation movement” will send a message that practitioners must adapt to new technology, “surrender their long-standing faith in paper documents, and familiarise themselves with information and communication technology, regard-less of their age or generation.”
Compared to the digitalisation progress seen in Hong Kong and Singapore, Hironaka says that Japan is unique in part because the population is “litigation-averse, and most people do not have the opportunity to experience the inefficiency of the old-fashioned litigation process in Japan.”
“Furthermore, Japanese judges and lawyers have not been motivated to change their working practices from those with which they are familiar. For these reasons, until recently, the Japanese government has prioritised budgeting and using resources in areas other than modernising the Japanese litigation system,” he says.
There remains, Hironaka says, a sense of trust in physical paperwork, “and less in electronically stored information.”
“While remote hearings have become common in international arbitration, some Japanese practitioners still cling to the strong belief that judges may not be able to discern the truth in witness testimony delivered through a screen. Such beliefs cannot be changed easily,” he says.
Additionally, Hironaka says the digitalisation process faces practical hurdles — including concerns around transparency.
“Compared with some advanced non-Japanese court systems, the Japanese court process may be seen as lacking transparency, in terms of both the process and the resulting judgments,” Hironaka says, noting that third parties are unable to read court records without visiting the court, and “can learn about hearings only thorough summaries written by court clerks, except in the case of witness examinations.”
“In addition, not all judgments are published and available to third parties. Digitalisation of the litigation process using ICT will enable the general public to access the litigation process and judgements much more easily in the long run; however, judges, lawyers, and parties to litigation may fear exces-sive transparency, and try to prevent attempts to increase it. While business secrets and privacy must be preserved, it is important to achieve transparency in the litigation process, and in judgments, to provide more predictability and fairness in the Japanese judicial system,” he adds.
Still, regardless of challenges, COVID-19 has provided a strong motivation for firms to embrace greater connectivity — particularly where international work is concerned.
“It is desirable to improve international cooperation in judicial processes involving multiple jurisdictions to expedite cross-border litigation. It is well known that service of process in cross-border litigation takes significant time,” Hironaka says.
“Furthermore, it is common to encounter significant difficulties when attempting to take and obtain the testimony of witnesses who reside outside Japan, due to recent restrictions on cross-border travel arising from the COVID-19 pandemic. The same is true for Japanese witnesses attempting to attend proceedings outside Japan,” he adds.
