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9 Constr. Law. 1 (1989)

handle is hein.journals/conlaw9 and id is 1 raw text is: Th Costucio Lawye Construction Law and Practice in Japan Kaoru Kashiwagi, Robert A. Rubin and Marcy Ressler Harris* Kaoru Kashiwagi Robert A. Rubin Despite profound differ- ences in history, tradition and culture, construction law and practice in the United States and Japan are remarkably similar. Of course there are excep- tions-exceptions rooted in societal mores dating back hundreds of years. Overall, however, what is most exceptional about comparisons between con- Marcy Ressler Harris struction law and practice in the two countries is the extent of their similarity. This article begins by reviewing the areas of most pro- nounced contrast, including Japanese culture, the struc- ture and sources of the Japanese legal system, and the role of lawyers in Japan. It then shifts to an examination of Japanese contracting and construction practices, where the similarities, rather than the differences, are more *Kaoru Kashiwagi is the senior partner in Kashiwagi & Yamashita in Tokyo, Japan. He is a past vice-president of Daini Tokyo Bengoshi- kai (the Second Tokyo Bar Association), and has represented one of the largest Japanese general construction companies having worldwide interests for over 20 years. Robert A. Rubin is a partner in Postner & Rubin in New York City. In 1985 and 1986 he lectured on construction law at seminars in Tokyo sponsored by the Japan Society of Civil Engineers. Marcy Ressler Harris is an associate at Schulte Roth & Zabel in New York City. noteworthy. Although the areas of contrast will be high- lighted for comparison purposes, the extent of the com- mon practices should always be borne in mind. Cultural Differences Japanese society has traditionally placed great em- phasis on social harmony and cooperation. Strong as- sertions of individual rights have long been frowned upon, viewed as disruptive of group harmony. Although times and attitudes are changing in Japan, even today parties do not always enforce the legal rights they have. In Japan, self-settlement of disputes is still over- whelmingly preferred to third-party resolution through litigation. The reason, of course, is obvious. Where lit- igation emphasizes disputes between parties, leads to a finding that one party is right and another wrong, and is based on standards independent of the wills of the parties, settlement through private negotiation allows both sides to save face and maintain a spirit of group harmony and cooperation. While litigation is viewed as a remedy of last resort, there has been a general increase in recent years in the number of cases actually litigated in Japan, especially against the government (e.g., cases involving public nui- sance, labor, human rights, habeas corpus, etc.). Upon filing a case in court, the plaintiff must purchase revenue stamps based upon a percentage of the total amount claimed in the suit. The filing fee is inversely propor- tional to the amount claimed, e.g., the larger the claim, the proportionately smaller the filing fee. In the case of (continued on page 37) Copyright © 1989 American Bar Association Produced by the ABA Press

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