Beyond the challenge, any party may request a court (under the JAA) or the JCAA (under the JCAA rules) to remove an arbitrator: (a) where the arbitrator is unable, de jure or de facto, to perform his or her function; or (b) for reasons other than those contained in the proceedings, where the arbitrator acts inappropriately (Article 20 of the AGREEMENT, Article 35 of the AJCA Trade Rules and Article 35 of the JCAA Interactive Rules). In addition, after the JAA, an arbitrator`s term of office ends on the date of: (a) his or her death; (b) his resignation; (c) its withdrawal with the agreement of the parties; (d) its decision, which confirms that there are grounds for challenging it; or (e) the adoption of a decision by the competent arbitral institution to withdraw it on the basis of the applicable arbitration rules. Within three months of receipt of the copy of the arbitral award and before an enforcement order of a Japanese court (see below) has become final and binding, the losing party may file an application for annulment of the arbitral award (Articles 44.1 and 44.2 JAA). Japan has an arbitration institution, the Japan Commercial Arbitration Association (“JCAA”). The JCAA was established in 1950 as part of the Japan Chamber of Commerce and Industry, with the support of six other economic organizations, including the Japan Federation of Economic Organisation, the Japan Foreign Trade Council and the Federation of Banking Associations of Japan, to resolve trade disputes and promote international trade. As a recent precedent, the Japanese Supreme Court adopted, on December 12, 2017, a decision was rendered on the issue of overturning an arbitral award due to a conflict of interest of an arbitrator (Supreme Court of Japan, December 12, 2017, Hei 28 (Kyo) No. 43). In this case, the presiding arbitrator was a lawyer in the office of an international law firm in Singapore. A new attorney, who entered the office of the same law firm in San Francisco after the arbitration began, represented a sister company of one of the parties in an independent dispute in California, but the arbitrator`s president did not disclose this fact. Although the President of the Arbitrator had made a prior statement prior to the commencement of the proceedings and waived any future conflicts of interest, the Supreme Court held that such an abstract statement did not constitute a correct disclosure and that another finding of fact was necessary to determine whether the Presiding Arbitrator was indeed aware of the conflict and whether he was aware of it, if he had made reasonable efforts.
Under these rules, a third party may join (or be associated at the initiative of the parties) if: (a) all parties and the third party agree to the membership in writing; or (b) all claims are asserted under the same arbitration agreement. The third party`s written consent to membership is required if the third party is invited to present itself as a defendant after the closure of the arbitral tribunal. An arbitral award (whether or not the place of arbitration is in Japan) has the same effect as a final and binding judgment of a Japanese court if it meets the requirements of Article 45 of the JAA. The requirements for the enforcement of an arbitral award set out in article 45 of the JAA are essentially consistent with those of the New York CONVENTION and the UNCSD Model Law. In particular, where an arbitral award is set aside or suspended by a court in the place of arbitration, that award may not be enforced (Article 45(2)(vii) JAA). . . . .