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| 5th Report of Market Access Ombudsman Council (March 17, 1998) |
1. Complainant: U.S. Chamber of Commerce in Japan
2. Ministry concerned: Ministry of Justice
3. Complaint:
In Japan's legal services market, both foreign and Japanese lawyers are prevented from providing customers with comprehensive global services. Because Japan's advances in market access have rapidly heightened the necessity of such international legal services here as well, access in Japan to the international legal services that can easily be accessed in other business and financial centers throughout the world should be possible.
Measures should thus be to achieve the following.
(1) Approve the free formation of partnerships between domestic lawyers and gaikokuho-jimu-bengoshi ("foreign lawyers").
(2) Approve foreign lawyers' hiring of domestic lawyers, in the same way that domestic lawyers' hiring of foreign lawyers is approved
(3) Approve foreign lawyers' provision of counsel on the laws of third powers to the same extent as domestic lawyers'.
(4) Reduce the work experience requirement from five years to two, and no matter if experience was obtained in the offices of foreign or native lawyers, include the number of years of work experience in international law offices in all legal areas, including Japan, in the calculation of this requirement.
(5) Substantially increase the number of lawyers by increasing the number of judicial trainees to be accepted by the Judicial Training Center of the Supreme Court in Japan to at least 1,500 a year.
(6) For business organizations widely recognized as effective business organizations in nearly all countries that are centers of advanced business, approve the specialist corporations used as legal specialist organizations. However, make sure that doing so will not result in a distinct disadvantage compared with forming partnerships with international legal offices already conducting business in Japan.
(7) Relax excessively strict regulations on lawyer advertising and make it possible for lawyers to have the general public rationally informed of their services.
4. Corresponding Policy of the Ministries concerned:
(1) Concerning the partnerships of bengoshi ("bengoshi", domestic lawyer, hereinafter) and gaikokuho-jimu-bengoshi (foreign lawyers qualified by Japanese law, "GJB" hereinafter), revision of the law which came into effect in January 1995 has opened the way for bengoshi and GJB to run a joint enterprise, and on October 30, 1997, the Study Commission on the Issue of Foreign Lawyers (jointly held by the Ministry of Justice, "MOJ" hereinafter, and Japan Federation of Bar Associations), which was composed of knowledgeable members, submitted its report on the system of accepting foreign lawyers ("this report," hereinafter). Based on this report, MOJ submitted to this session of the Diet a bill that abolish the restriction regarding the objectives which the joint enterprise could pursue in cases involving foreign legal matters, and thus bengoshi and GJB can offer in each sphere legal services up to the stage of ultimate solution of legal cases, which is litigation stage and so on, based on a comprehensive and integrated cooperation.
(2) Concerning the employment of bengoshi by GJB, the report indicated that it brings about very serious problem in connection with the qualification system in Japan, etc., (the employment of GJB by bengoshi brings no such problem), while above (1)-mentioned revision of the law which assure systematically the form of enterprise in which bengoshi and GJB cooperate together comprehensively and integratedly, it will substantially meet the needs regarding to the employment. Based on the report, MOJ submitted above (1)-mentioned bill to solve the problem regarding to the employment.
(3) Concerning the third country law, GJB is prohibited from handling such legal business from the point of view of protection of clients and so on. However, based on the report, MOJ submitted to this session of the Diet a bill which enable GJB to handle legal business concerning the third country law on the condition that he or she has to receive written advice from foreign lawyer qualified in that third country and engaged in legal business concerning the third country law based on his or her qualification.
(4) Concerning the practicing experience requirement, based on the report, MOJ submitted to this session of the Diet a bill that practicing experience period is shortened to three years or more from five years or more currently required. Besides, as for a place where foreign lawyer has the experience of having engaged in legal business, currently he or she has to have the experience in the country of primary qualification, additionally the period during which he or she, on certain conditions, engaged in legal business concerning the law of the country of primary qualification in other foreign countries outside the country of primary qualification can be included to the above period.
(In the U.S., only about 20 states have a system of accepting foreign lawyer, besides two of them impose the practicing experience requirement of three years or more, and the rest impose that requirement of four or five years or more. In addition, only two states permit the period during which foreign lawyer engaged in legal business in other foreign countries outside the country of primary qualification can be included.)
Moreover, based on the report, MOJ submitted to this session of the Diet a bill that up to the one year the period of the provision of assistant services to the bengoshi and so on as employee, as an exception, can be included to the above period.
(5) On October 1997, the three branches of the legal profession ("MOJ", Supreme Court and Japan Federation of Bar Association) agreed to reform the present system of the training of legal apprentices, and to increase the number of successful applicants for the National Bar Examination from 700 to 800 in 1998, to 1,000 in and after 1999, in round figures. Required measures based on this agreement will be devised and the increase in the number of people who pass National Bar Examination is expected to lead to an increase in the number of lawyers. In addition, it has been agreed to deliberate upon the matter of increasing the number of people passing National Bar Examination to about 1,500, after making continuous investigation and consideration of the results of the above reform, trends in social needs for legal professionals and so on.
(6) Concerning the incorporations of law firms, MOJ has been studying and surveying the actual conditions, as the "Further revision to the Deregulation Action Program" of the Government in March 1997 decided. The result of the study will be concluded within fiscal 1998, and necessary measures will be taken based on the conclusion as soon as possible.
(7) Concerning the restrictions on advertisement by bengoshi, MOJ has been studying and surveying the actual condition, as the "Further revision to the Deregulation Action Program" of the Government in March 1997 decided. The result of the study will be concluded within fiscal 1998, and necessary measures will be taken based on the conclusion as soon as possible.