Monday, April 15, 2013

Amicus Curiae in Japan

Amicus Curiae, or a friend of court, submits a brief as a third party. An amicus brief is especially important in a case where a non-sympathetic figure is involved. A judge may focus on the fact of the particular case and forget the implication the opinion has to other cases. An amicus brief can let the judge know the broader concerns around a case.

In Japan, however, there is no Amicus Curiae, although there are arguments for its introduction. For example, the Japanese Civil Liberties Union (JCLU) proposed the introduction of the Amicus system in 2009. Last year, the Amicus Brief Committee of Japan Patent Attorneys Association (JPAA) published an opinion explaining the concept, importance and challenges of the Amicus Curiae.

I believe that the Amicus Curiae can play a very important role even in Japan. One example is the Google Streetview case. In this case, as I described previously, the plaintiff was not represented by an attorney in the district court and the appellate court also dismissed her claim although attorneys represented her in appellate level. I believe that as a privacy issue of Streetview can involve significant policy considerations, the case would be very appropriate for submitting an Amicus Brief. Therefore, I agree that the Amicus Curiae System should be introduced to the Japanese legal system.

However, JPAA's opinion has some problems. For example, the opinion indicated that the Amicus Brief in Japan would be prepared without reviewing the briefs of the parties. It is true that briefs are not uploaded onto databases in Japan. (Note that briefs can be viewed at a Japanese court.) But amici in the USA sometimes ask the parties to disclose their briefs and obtain their cooperation (especially in state court cases). Even in Japan, reputable institutions can obtain briefs from the parties if the parties understand the importance of the Amicus Curiae.

Another challenge not focused on in the JPAA is who will write the Amicus Brief. The Japan Federation of Bar Associations which frequently opines on civil liberties case, and some other NGOs such as JCLU (note, however, that JCLU members are only around 600) or MIAU (Movements for the Internet Active Users) could be possible amici.

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog. 

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