What Should Foreign Corporations Know About Representation and Qualification Certificates When Involved in a Japanese Suit to Rescind a Trial Decision?

As business and intellectual property (IP) disputes increasingly transcend national borders, foreign corporations often find themselves as parties—either plaintiffs or defendants—in Japanese IP litigation. This includes the specialized "Suit to Rescind a Trial Decision" (審決取消訴訟 - shinketsu torikeshi soshō) before the Intellectual Property (IP) High Court, which challenges decisions made by the Japan Patent Office (JPO). When a foreign entity is involved in such proceedings, understanding and complying with Japanese procedural rules concerning legal representation and the formal proof of corporate status and authority is paramount. This article addresses these key requirements.

Q: When a foreign corporation is a party to a Suit to Rescind a JPO Trial Decision in Japan, which country's procedural laws apply?

A: Application of Japanese Procedural Law (Lex Fori)

A fundamental principle in private international law is that procedural matters are governed by the law of the forum where the legal action is taking place (lex fori processualis). Consequently, when a foreign corporation participates as a plaintiff or a defendant in a Suit to Rescind a JPO Trial Decision before the Japanese IP High Court, the court proceedings are governed by Japanese procedural law. The primary statutes dictating these procedures are the Japanese Administrative Case Litigation Act (ACLA) and, by way of supplementation for matters not covered therein (as per ACLA Article 7), the Japanese Code of Civil Procedure (CCP). This means that foreign corporations must navigate these Japanese rules regardless of their country of incorporation or principal place of business.

Q: What are the requirements for identifying a foreign corporation and its representative in court documents like the complaint?

A: Identifying the Corporation and its Legal Representative (外国法人の代表者記載 - gaikoku hōjin no daihyōsha kisai)

The initial court filing, known as the "complaint" (訴状 - sojō), must precisely identify the parties to the lawsuit.

• Mandatory Information: Article 133, Paragraph 2 of the CCP mandates that the complaint must state the "parties and their legal representatives".
• Identifying the Corporate Party: For a corporate party, this means its official legal name and its registered head office address must be accurately stated.
• Identifying the Legal Representative: The provisions in the CCP concerning statutory agents (hōtei dairi-nin) for individuals are applied mutatis mutandis to the representatives of corporations (CCP Article 37). Therefore, the complaint must also name the specific individual who is legally authorized to represent the foreign corporation in judicial proceedings. This individual is typically the corporation's President, Chief Executive Officer, Managing Director, or another officer who is vested with such representative authority under the laws of the corporation's place of incorporation (its lex incorporationis).
• Consequences of Non-Compliance: Failure to properly identify the legal representative in the complaint can lead to significant procedural complications. For example, if the representative is not clearly named, it can create difficulties with the formal service of court documents by the court (which are typically served on the representative for a corporation, as per CCP Articles 102, Paragraph 1, and 103, Paragraph 1). More seriously, such a defect could lead to an order from the presiding judge to rectify the omission within a specified period, or potentially even to the dismissal of the complaint by a judicial order if the defect is not cured (CCP Article 137, Paragraph 2).

Q: How must a foreign corporation prove the authority of its named legal representative to the Japanese court?

A: Proving Representative Authority: The Certificate of Qualification (資格証明書 - shikaku shōmei-sho)

It is not enough to simply name a representative; their authority to act on behalf of the foreign corporation must be formally proven to the Japanese court.

• Requirement for Written Proof: Article 18 of the Japanese Rules of Civil Procedure, which applies mutatis mutandis the rules concerning statutory agents (under Article 15 of the same Rules) to corporate representatives, stipulates that the authority of a person to act as a representative of a corporation in litigation must be evidenced by a written document. This crucial document is often referred to as a "certificate of qualification" (shikaku shōmei-sho).
• Content and Purpose of the Certificate: The certificate must reliably demonstrate that the individual named in court documents as the legal representative (or the individual who has authorized the appointment of litigation counsel, such as Japanese attorneys or patent attorneys, if counsel is being used) possesses the legal authority to represent the corporation in judicial matters. This authority is determined according to the laws of the country or state under which the foreign corporation was established (its "home law" or 設立準拠法 - setsuritsu junkyo-hō).
• Consequences of Failure to Submit: If the necessary certificate of qualification cannot be submitted, or if the submitted certificate is deemed insufficient by the court, the suit may be considered improperly filed due to a lack of proper representation. This can ultimately lead to the court dismissing the suit by a judgment as being inadmissible due to these procedural flaws (as per the implications of Rule 15 of the Rules of Civil Procedure regarding proof of authority).
• Practical Approach for Timely Filing: Given that obtaining the appropriate corporate documents from abroad—which often require notarization, an apostille (under the Hague Apostille Convention) or consular legalization, and then certified Japanese translation—can be a time-consuming process, especially in light of the relatively short statutory deadlines for filing some IP-related court actions in Japan, courts may sometimes exhibit a degree of practical flexibility. It might be possible in urgent situations to file the complaint with the representative's details provisionally stated, followed very promptly by a supplementary submission (tsuikan) of the formal certificate of qualification and any necessary amendments to the representative's information. However, relying on such leniency is risky, and parties should endeavor to have these documents prepared as early as possible.

Q: What if the foreign corporation has a registered presence or representative in Japan?

A: Utilizing a Registered Representative in Japan (外国会社の商業登記簿謄本 - gaikoku kaisha no shōgyō tōkibo tōhon)

For foreign companies that conduct business continuously in Japan, there's often a simpler way to prove representative authority.

• Companies Act Registration: Under Japan's Companies Act (会社法 - Kaisha Hō), a foreign company that intends to engage in transactions on an ongoing basis in Japan must appoint and register at least one representative in Japan (Companies Act Article 817, Paragraph 1).
• Authority of the Japan Representative: Such a registered representative in Japan is vested with the authority to perform all judicial (court-related) and extra-judicial (out-of-court) acts concerning the business of the foreign company in Japan (Companies Act Articles 817, Paragraph 1 and 933, Paragraph 3).
• Proof via Japanese Commercial Registry: If the foreign corporation has duly registered such a representative in Japan, their identity and authority can be readily proven to a Japanese court by submitting an official certificate (or excerpt) from the Japanese commercial register (商業登記簿謄本 - shōgyō tōkibo tōhon). This document is issued by the Japanese Legal Affairs Bureau (法務局 - Hōmu-kyoku). The details of such registration are governed by the Commercial Registration Act (商業登記法 - Shōgyō Tōki Hō, Article 129 et seq.). Using a Japanese commercial registry certificate is often significantly more straightforward and quicker than obtaining, authenticating, and translating foreign corporate documents.

Q: Can you provide examples of how to prove representative authority for corporations from specific major jurisdictions if they don't have a registered representative in Japan?

A: Country-Specific Examples of Qualification Documents (各論 - kakuron)

If a foreign corporation does not have a registered representative in Japan whose authority can be proven via the Japanese commercial register, documentation from its country of incorporation will be necessary. The exact documents required will vary based on the corporate law of that jurisdiction. Here are some general examples for major jurisdictions:

• United States of America (アメリカ合衆国 - Amerika Gasshūkoku):
  • U.S. corporate law is primarily state-specific. Corporations are typically formed and registered with the Secretary of State (or a similar office) in their state of incorporation.
  • Documents that may serve as proof of representative authority could include:
    • A "Certificate of Good Standing" or "Certificate of Existence" issued by the Secretary of State, particularly if it lists current officers who have representative powers.
    • Certified copies of corporate resolutions (e.g., from the Board of Directors) that specifically authorize the named individual to represent the corporation in the Japanese legal proceedings.
    • A "Certificate of Incumbency" issued by the corporation itself (often by the Corporate Secretary), attesting to the identity and authority of its current officers, which should then be notarized.
    • An affidavit or declaration from a corporate officer (e.g., the Corporate Secretary), made before a Notary Public, confirming the representative's authority, potentially supported by relevant excerpts from the company's bylaws or articles of incorporation.
• United Kingdom (イギリス国 - Igirisu-koku):
  • The UK comprises England and Wales, Scotland, and Northern Ireland, collectively known as the United Kingdom (連合王国 - Rengō Ōkoku).
  • Companies are registered with the Companies Registration Office (commonly known as Companies House) under the relevant Companies Act.
  • Common corporate forms include a "company limited by shares" (often using the suffix "Co., Ltd." or "Ltd.") and a "public limited company" (using "PLC" or "p.l.c.").
  • Proof of representation can often be established through:
    • Official documents obtainable from Companies House, such as a "Current Appointments Report," which lists current directors and secretaries.
    • A certificate issued by a UK Notary Public, prepared after their independent review of the company's statutory registers and other official records to confirm the authority of the representing individual(s).
• Germany:
  • Common German corporate forms encountered in international business include the Aktiengesellschaft (AG – a stock corporation) and the Gesellschaft mit beschränkter Haftung (GmbH – a limited liability company).
  • These companies are registered in the Commercial Register (Handelsregister), which is maintained at the local court (Amtsgericht) where the company has its registered seat.
  • Suitable qualification documents include:
    • An official excerpt from the Commercial Register (Handelsregisterauszug) issued by the Amtsgericht. This document will typically list the company's managing directors (Geschäftsführer for a GmbH, or Vorstand members for an AG) and their powers of representation.
    • Alternatively, a certificate issued by a German Notary (Notar) based on their inspection of the Commercial Register and verification of the representative's authority.
• France (フランス国 - Furansu-koku):
  • Common French corporate forms include the Société Anonyme (SA – a type of stock corporation), the Société à Responsabilité Limitée (SARL – a limited liability company), and the increasingly popular Société par actions simplifiée (SAS – a simplified stock company).
  • These companies are registered with the clerk's office (greffe) of the Commercial Court (tribunal de commerce) in the jurisdiction of their registered office. Information is also centralized at the National Industrial Property Institute (INPI - Institut national de la propriété industrielle).
  • Proof of representative authority can typically be provided by:
    • An official excerpt from the Commercial and Companies Register, commonly known as an "Extrait Kbis" for commercial companies, issued by the clerk (greffier) of the relevant Commercial Court. This document identifies the company's legal representatives (e.g., Président, Directeur Général).
    • A certificate or attestation issued by a French Notary (notaire) after verifying the company's records and the authority of its representatives.
• A Note on Translations and Authentication: It is crucial to remember that for all foreign-issued documents submitted to a Japanese court, certified Japanese translations will be required. Furthermore, to ensure their authenticity and acceptance, these documents will typically need to be authenticated in their country of origin, usually by obtaining an Apostille certificate pursuant to the Hague Apostille Convention (if the country is a signatory), or through a process of consular legalization if the Apostille Convention does not apply.

Q: Is there a quick reference for common corporate designations (like "Inc." or "Ltd.") in different countries?

A: Common Corporate Designations in Various Countries (諸外国の株式会社と有限会社の表記 - shogaikoku no kabushikigaisha to yūgen-gaisha no hyōki)

While not exhaustive, the following table provides a general guide to common corporate designations for stock corporations (akin to Japanese 株式会社 - kabushiki-gaisha) and limited liability type companies (akin to Japanese 有限会社 - yūgen-gaisha, though the modern equivalent is often 合同会社 - gōdō-gaisha) in several key jurisdictions. Precise legal meanings and structures can vary significantly.

(This table is for general reference; specific legal forms and their exact equivalents can differ.)

Conclusion

For foreign corporations involved as parties in Japanese IP High Court litigation, such as Suits to Rescind JPO Trial Decisions, meticulous compliance with Japanese procedural rules regarding party identification and the formal proof of representative authority is not merely a formality but a critical necessity. Failure to meet these requirements can lead to procedural delays, orders for rectification, or even the dismissal of the suit. Therefore, proactive preparation of all necessary corporate documentation from the country of incorporation—including certified Japanese translations and the appropriate authentication (such as an apostille or consular legalization)—is crucial well in advance of any filing deadlines. Consulting early with Japanese legal counsel who are experienced in handling international litigation and the specific requirements for foreign corporate parties is highly advisable to navigate these procedural intricacies effectively and ensure the corporation's standing and representation before the Japanese court are properly established.