What Happens if We're Sued in the Wrong Japanese Court? Understanding "Jurisdiction by Appearance"

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

Being served with a lawsuit is a serious matter for any business. When that lawsuit is filed in a foreign jurisdiction like Japan, an immediate concern, beyond the merits of the claim itself, is whether the chosen court actually has the authority – the jurisdiction – to hear the case. Generally, if a lawsuit is filed in a Japanese court that lacks proper territorial or international jurisdiction, the defendant has the right to object. However, Japanese law also recognizes a concept where a court can acquire jurisdiction based on the defendant's conduct in the lawsuit. This is known as "Jurisdiction by Appearance," or Ōso kankatsu (応訴管轄). Understanding this principle is crucial, as a defendant's actions, or inactions, can inadvertently confer jurisdiction on a court that might otherwise not have it.

I. Understanding "Jurisdiction by Appearance" (Ōso kankatsu) in Japanese Law

A. Definition and Rationale (Code of Civil Procedure, Art. 12)

Jurisdiction by Appearance is primarily governed by Article 12 of Japan's Code of Civil Procedure (Minji Soshō Hō 民事訴訟法). It states:
"A court shall have jurisdiction if the defendant, without submitting a plea that the court has no jurisdiction over the action, makes oral arguments on the merits or makes statements in preliminary proceedings in the court of first instance."
(原文：「被告が第一審裁判所において管轄違いの抗弁を提出しないで本案について弁論をし、又は弁論準備手続において申述をしたときは、その裁判所は、管轄権を有する。」)

The rationale behind this rule includes:

  • Defendant's Implied Consent/Waiver: By actively participating in the merits of the case without challenging jurisdiction, the defendant is deemed to have implicitly consented to that court's authority or waived their objection.
  • Procedural Economy and Stability: It prevents a defendant from participating in substantive proceedings and then, only if the case seems to be going unfavorably, raising a late jurisdictional challenge. This promotes the efficient use of judicial resources and stabilizes the proceedings.
  • Respect for Party Autonomy (to a degree): It allows a defendant, if they so choose, to litigate in a forum that might not otherwise have jurisdiction, perhaps for reasons of convenience or perceived neutrality.

B. How It Differs from Other Bases of Jurisdiction

Ōso kankatsu is distinct from other grounds of jurisdiction like:

  • Statutory Jurisdiction (法定管轄 - hōtei kankatsu): Jurisdiction based on general rules like the defendant's domicile, the place of contract performance, etc.
  • Jurisdiction by Agreement (Gōi kankatsu 合意管轄): Jurisdiction established by a prior agreement between the parties.

Jurisdiction by Appearance arises after the lawsuit has been filed, based on the defendant's procedural actions (or omissions) in response to that lawsuit in a court that initially lacks proper territorial jurisdiction (or, in some international cases, international jurisdiction).

II. Requirements for Establishing Jurisdiction by Appearance

For Ōso kankatsu to be established, several conditions must typically be met:

A. Lawsuit Filed in a Court Lacking Proper (Usually Territorial) Jurisdiction
The premise is that the plaintiff has initiated the action in a court that does not have statutory territorial jurisdiction over the defendant or the subject matter under the standard rules. (The application to international jurisdiction will be discussed later).

B. Defendant's Appearance and Engagement on the Merits

This is the crucial element and involves two aspects:

  1. No Prior or Contemporaneous Objection to Jurisdiction (管轄違いの抗弁を提出しないで - kankatsu chigai no kōben o teishutsu shinaide):
    The defendant must engage with the substance of the case before or without formally pleading that the court lacks jurisdiction. If a defendant properly and timely submits a plea challenging the court's jurisdiction as their first or primary response, jurisdiction by appearance will not arise.
  2. "Makes Oral Arguments on the Merits or Makes Statements in Preliminary Proceedings" (本案について弁論をし、又は弁論準備手続において申述したとき - hon'an ni tsuite benron o shi, matawa benron jumbi tetsuzuki ni oite shinshutsu shita toki):
    • "Oral arguments on the merits" (hon'an ni tsuite benron o shi): This refers to the defendant substantively addressing the plaintiff's claims or presenting their defenses in open court during an oral hearing. Merely appearing in court is not enough.
    • "Makes statements in preliminary proceedings" (benron jumbi tetsuzuki ni oite shinshutsu shita toki): This covers situations where the defendant substantively engages with the case during formal preparatory proceedings, which are common in Japanese litigation to clarify issues and evidence before full oral arguments.
    • Content of Pleadings: Filing a written answer (tōbensho 答弁書) that solely objects to jurisdiction would not create Ōso kankatsu. However, if the answer, without reserving a jurisdictional objection, delves into denying the plaintiff's factual allegations or asserting affirmative defenses, this could be construed as engaging on the merits.

C. Plaintiff's Invocation Not Required
Jurisdiction by appearance is established objectively by the defendant's actions. The plaintiff does not need to explicitly "invoke" it. Once the conditions are met, the court acquires jurisdiction.

III. Effects of Establishing Jurisdiction by Appearance

  • Conferral of Jurisdiction on the Court: The court where the action was filed, even if it initially lacked territorial jurisdiction, becomes a competent court to hear and decide the case. The lawsuit is then considered to be validly pending.
  • Preclusion of Later Jurisdictional Challenges by the Defendant: Once jurisdiction by appearance is established, the defendant generally cannot later raise an objection based on the original lack of territorial jurisdiction. They are, in effect, estopped from doing so.

IV. When Jurisdiction by Appearance Does NOT Arise

There are important limitations to the doctrine of Ōso kankatsu:

A. Cases of Exclusive Jurisdiction (Senzoku kankatsu 専属管轄)
Article 13, Paragraph 1 of the Code of Civil Procedure states that the provisions concerning jurisdiction by agreement (Article 11) and jurisdiction by appearance (Article 12) do not apply when exclusive jurisdiction is prescribed by law for a particular type of action.
If a law mandates that only a specific court or type of court can hear a certain case (e.g., certain company law actions, some IP matters exclusively before the IP High Court), then even if a defendant appears and argues the merits in a different court, that different court cannot acquire jurisdiction by appearance. The lack of exclusive jurisdiction is a non-waivable defect.

B. Timely and Proper Objection to Jurisdiction by the Defendant
If the defendant, as their first order of business in the lawsuit, files a formal plea challenging the court's jurisdiction (kankatsu chigai no kōben 管轄違いの抗弁) before engaging with the merits, jurisdiction by appearance will not be established. The court will then rule on the jurisdictional objection. If the objection is upheld, the court may dismiss the case or transfer it to a competent court.

V. Jurisdiction by Appearance in International Cases (Code of Civil Procedure, Art. 3-8)

The principle of jurisdiction by appearance also extends to cases with international elements, governed by Article 3-8 of the Code of Civil Procedure. This is particularly relevant for foreign companies sued in Japan.

A. Application of the Principle to International Jurisdiction
Even if Japanese courts might not otherwise have international jurisdiction over a foreign defendant based on statutory grounds (e.g., defendant's domicile abroad, contract performed abroad), jurisdiction can be established if the foreign defendant appears and litigates on the merits in a Japanese court without objecting to jurisdiction.

B. Conditions under Article 3-8
Article 3-8 provides that if a defendant makes oral arguments on the merits or makes statements in preliminary proceedings in the court of first instance, the court shall have jurisdiction, unless:

  1. The defendant submitted a plea of lack of jurisdiction prior to or simultaneously with such arguments/statements.
  2. For cases where Japanese courts would only have jurisdiction based on an agreement (Art. 3-7), if the plaintiff failed to prove the existence of such an agreement. (This part is more nuanced, ensuring that if jurisdiction is solely based on an alleged agreement, the defendant's appearance doesn't automatically cure a failure to prove that agreement).

More broadly, the core principle is that a foreign defendant who voluntarily litigates on the merits in Japan without challenging jurisdiction is generally deemed to have submitted to the Japanese court's authority for that case.

C. Strategic Importance for Foreign Defendants Sued in Japan
This rule highlights the critical importance of the initial response for any foreign company served with a Japanese lawsuit. A misstep – such as filing an answer that addresses the substance of the claims without first or simultaneously raising a strong jurisdictional objection – could inadvertently waive a valid defense that Japanese courts lack jurisdiction. This could force the company to litigate in a potentially inconvenient or undesirable forum.

VI. Strategic Considerations for Defendants

When sued in a Japanese court where jurisdiction seems questionable, a defendant faces a strategic choice:

A. To Challenge or Not to Challenge Jurisdiction?

  • Benefits of Challenging:
    • Potentially having the case dismissed or transferred to a more favorable or convenient forum (perhaps their home jurisdiction if it's an international case).
    • Avoiding litigation in a forum perceived as disadvantageous.
  • Risks/Costs of Challenging:
    • A jurisdictional battle itself can be time-consuming and costly.
    • If the challenge fails, the defendant has expended resources and must still defend on the merits.
  • Benefits of Consenting (Implicitly through Appearance):
    • May lead to a faster resolution of the substantive dispute if the forum is otherwise acceptable or if challenging jurisdiction is unlikely to succeed.
    • In some international cases, a party might strategically prefer the Japanese forum over alternatives.

B. The "First Opportunity" Rule for Objections
It cannot be overemphasized: jurisdictional objections must be raised at the defendant's first available opportunity to make submissions to the court. This is typically in the initial responsive pleading (the answer, or tōbensho) or at the very first oral hearing where the defendant participates. Any substantive engagement before or without a clear jurisdictional plea risks waiving the objection.

C. Consulting Local Counsel Immediately
For any defendant, but especially for foreign companies unfamiliar with Japanese procedure, it is absolutely crucial to consult with experienced Japanese legal counsel immediately upon being served with a complaint. Counsel can assess potential jurisdictional defenses and advise on the proper way and timing to raise them, thereby preserving the defendant's rights and avoiding the unintended consequences of Ōso kankatsu.

VII. Illustrative Scenarios

  • Scenario 1 (Domestic): A company in Osaka is sued in a Tokyo District Court for a breach of contract. The contract was performed in Osaka, and the defendant company's principal office is in Osaka. Tokyo District Court likely lacks territorial jurisdiction. If the Osaka company files an answer that argues why the contract was not breached (merits) without first or simultaneously objecting to Tokyo's jurisdiction, the Tokyo court will likely acquire jurisdiction by appearance.
  • Scenario 2 (International): A US company with no office or assets in Japan is sued in a Japanese District Court by a Japanese company concerning a contract performed entirely in the US. Japanese courts might lack international jurisdiction. If the US company hires Japanese lawyers who file an answer vigorously denying the breach of contract claims but fail to raise a timely objection to international jurisdiction, the Japanese court may acquire jurisdiction by appearance under Article 3-8.
  • Scenario 3 (Exclusive Jurisdiction): A shareholder action that, by law, must be filed in the District Court where the company's head office is located, is instead filed in a different District Court. Even if the defendant company appears and argues the merits, this will not create jurisdiction by appearance because the original court's jurisdiction was exclusive. The case should be dismissed or transferred.

Conclusion

Jurisdiction by Appearance (Ōso kankatsu) is a significant feature of Japanese civil procedure that underscores the importance of a defendant's initial actions in a lawsuit. While it can promote procedural efficiency, it also carries the risk that a defendant, particularly one unfamiliar with Japanese rules or acting without prompt legal advice, might unintentionally submit to the jurisdiction of a court that otherwise lacks authority. For businesses, especially foreign entities facing litigation in Japan, understanding this doctrine and the imperative of timely jurisdictional challenges is a critical aspect of effective legal defense and risk management.