The "Appropriate" Role for Foreign Trainees in Japan

Abstract

THE APPROPRIATE ROLE FOR FOREIGN TRAINEES IN JAPAN Jason Comrie-Taylor t 1. INTRODUCTION There has been an ongoing debate for the last twenty years over whether Japan's perceived non-litigiousness' is a result of the Japanese culture, or a combination of rubbery statistics and institutional factors relating to the Japanese legal system. 2 One t LLB (Wales), LLM (Washington): is a candidate on the International Busi- ness Law LLM Program at Kyushu University. The author would like to thank Steve Lewis of Denton Hall, Tokyo and H. Haruki of Braun Moriya Kubota & Hoashi, Tokyo for allowing me to work as a foreign trainee in Japan. Furthermore the author would like to thank the following: Professor John Haley, David Baker of Lovell White Durrant, Tokyo, Alex Pease of Allen & Overy, Tokyo, Peter Gray of Linklaters & Paines, Tokyo, Mr. Ojima of the Japanese Embassy, London, Mr. K. Nijjima, and L. Ciano, without whose support and comments this would not have been possible. 1. Many commentators explain the lack of Japanese Lawyers solely upon the non-litigious nature of the people. This unwillingness to litigate was based primarily on a cultural proclivity towards maintaining harmony (wa) towards society. See Lansig & Wesenblatt, Doing Business in Japan: The Importance of Unwritten Law, 17 INr'L LAW 647 (1983). For how shame affects litigation, see also, Haley, Myth of the Reluctant Litigant, 4 J. JAPANESE STUD., 359-389 (1978); Haig Oghigian, Law and Commerce in Japan, 46 ADVOC. 699, 703-704 (1988); Richard B. Parker, Law, Lan- guage and the Individual in Japan and the United States, 7 Wis. INT'L L.J. 179 (1988); Frank K. Upham, Litigation and Moral Consciousness in Japan: An Interpretative Analysis of Four Major Pollution Suits, 10 L. & Soc'y REv. 579 (1976); Tsubota, Myth and Truth on Non-litigiousness in Japan, U. CHIX. L. SCH. REc. 8 (1984). Fur- ther commentators give an 'institutional factor analysis' to explain the non-litigious nature of the Japanese. The Japanese as rational litigants will pursue an action in the courts only in circumstances where he estimates the probability of success to exceed the likelihood of failure, J. Mark Ramseyer & Minoru Nakazato, The Ra- tional Litigant: Settlement Amounts and Verdict Rates in Japan, 18 J. LEGAL STUD. 263, 266 (1989). Despite these theories it is evident in the U.S. courts that the Japa- nese make excellent defendants and plaintiffs, Steven Dickinson, Partner, Garvey, Schubert & Barer, Seattle, lecture at the U. of Washington (Dec. 6, 1996). 2. YUKIO YANAGIDA, et. al., LAW AND INVESTMENT IN JAPAN: CASES AND MATERIALS 66 (1995). See also Dan Fenno Henderson, The Role of Lawyers in Japan published in HARALD BAUM, JAPAN's ECONOMIC SUCCESS AND LEGAL SYS- TEM (1997) (Henderson states that when the providers of legal services are recalcu- lated to take into account quasi legal services, this would raise the Japanese to about the U.K. or the French level).