Japan's New Product Liability ADR Centers: Bureaucratic, Industry, or Consumer Informalism?

Japan’s New Product Liability ADR Centers:
Bureaucratic, Industry, or Consumer Informalism? *
Luke Nottage** & Yoshitaka Wada***
I. Introduction
1. The New PL Law and its Impact: Comparatively Less Favourable to Consumers?
2. The Birth of PL ADR Centers: Mere “Bureaucratic Informalism”?
II. Japan’s PL ADR Centers In Action: More Than Meets the Eye?
1. Many Inquiries, but Very Few Clearly Covered by the PL Law
2. Often More Inquiries from Businesses and Public Bodies, Not “Consumers”
3. Very Few Formal Mediation Cases; Much More Direct Negotiation
(and Informal Mediation)
4. An Interim Appraisal
III. Conclusions and Directions for Further Research
Appendices
* This is a revised version of our paper presented at the Annual Meeting of the Law & Society
Association held at Snowmass Village at Aspen Colorado, June 4-7, 1998 (available at Luke
Nottage’s website at <http://www.law.kyushu-u.ac.jp/~luke/pladrfinal. html>), and which
formed the basis for Luke Nottage’s comments at the workshop on “Adaptation of Legal
Cultures [Changing Legal Cultures III]” held at the International Institute for the Sociology
of Law, Oñati, June 25-27, 1998. This article was prepared for and submitted first for Hosei
Kenkyu (Journal of Law and Politics of Kyushu University Law Faculty) and will also be
published therein in Volume 65 Issue 3 (December 1998).
We thank participants at both conference for valuable comments, including Anita Bernstein,
Erhard Blankenburg, Paul Fanning, Bryant Garth, Bai Gao, Heidi Feldman, Bob Kidder,
Setsuo Miyazawa, and Frank Upham. For comments or assistance we also thank Tom
Ginsburg, Masanobu Kato, Toshimitsu Kitagawa, Tsuneo Matsumoto, Yoichi Ohashi, Hiroo
Sono and Takao Tanase. Luke Nottage also thanks Prof. Norbert Horn and his associates for
making possible, and productive, research at the Law Center for International and European
Cooperation, associated with the University of Cologne, over July-August 1998. Yoshitaka
Wada was also supported in this research by a grant from the Matsushita Foundation in
1996-7 to investigate the operations of product-specific PL ADR centers; and Luke Nottage
(together with Toshimitsu Kitagawa and Gary Schwartz), by a grant in 1997-8 to consider
the possibility of developing Guidelines for industry to better comply with product liability
rules and improve product safety activities. Yoshitaka Wada also served on an Economic
Planning Agency initiated research group, under the auspices of the National Institute for
Research Advancement (“NIRA”), which in 1993 undertook a “Study on Establishing an
Out-of-Court System for Product Liability Dispute Resolution”.
Naturally we are strictly liable for any remaining defects in this work. The manuscript was
submitted in late June, and some revisions completed on 1 September 1998. As we hope to
continue researching and publishing in this area, both in English and Japanese, however, we
particularly welcome further comments (to <[email protected]> or <wyos-lw1@
mbox.nc.kyushu-u.ac.jp>).
** Associate Professor of Transnational Law, Kyushu University; Barrister and Solicitor of the
High Court of New Zealand.
*** Professor of Legal Sociology, Kyushu University.
Nr. 6 (1998) JAPAN’S NEW PRODUCT LIABILITY ADR CENTERS 41
I. INTRODUCTION
Boy dies suffocating on “konnyaku jelly”, settlement for 50,000,000 yen: manu-
facturer admits product liability (ASAHI SHIMBUN, November 4, 1997).
Long-term Smoking Caused My Cancer: Seven Patients Sue the Government and
Japan Tobacco Corporation –- Each Seeking 10,000,000 Yen (ASAHI SHIMBUN,
May 16, 1998).
These newspaper headlines symbolise the ongoing importance of product liability
(“PL”) law and dispute resolution in Japan today.
The first records just one example of a major and well publicised out of court
settlement.1 Konnyaku is a common viscous root vegetable in Japan, which food proc-
essing companies began turning into bite-sized jelly-type sweets, only to discover their
distressing tendency to get caught in the throats of small children. Following claims by
victims or their families and considerable media publicity, the number of manufacturers
has dropped from around 200 to around 50 firms over the last three years.2 Manufactur-
ers have developed “softer” jelly and placed warnings on the outer packet which the
sweets are retailed in, but they now sell very cheaply in Japanese supermarkets. More
manufacturers may go out of business, or simply stop manufacturing these sweets al-
together. In the product liability debate in the United States and elsewhere, similar
instances of the potential impact of product liability rules on product innovation and
product safety have been bemoaned by industry,3 and welcomed by consumer advo-
cates.4 Japan in the 1990s is not insulated from such questions.
Rather, developments overseas are increasingly important. News travels fast in
today’s world. The second newspaper headline follows in the wake of a media cam-
paign led by a citizens’ group to attract plaintiffs for PL litigation against the govern-
ment and tobacco companies.5 This campaign was initiated shortly after an article
appeared in Japan’s leading commercially published law journal,6 reporting on the
1 For a full account by the parents’ lawyer, see Taishi Sato, Konnyaku Zeri Shibo Jiken
Hokoku [Report on the Konnyaku Jelly Fatality Case], 26 PLHO-HODOKOKAI NYUSU 2
(1997).
2 ASAHI SHIMBUN, September 13, 1997.
3 See, e.g., PETER HUBER, LIABILITY: THE LEGAL REVOLUTION AND ITS CONSEQUENCES
153-164 (1988); cf. THE LIABILITY MAZE: THE IMPACT OF LIABILITY LAW ON SAFETY AND
INNOVATION (Peter Huber & Robert Litan, eds., 1991). See also the examples listed in Anita
Bernstein, How Can a Product Be Liable?, 25 DUKE L.J. 1, at 47-48 (1995), and Victor
Schwartz & Mark Behrens, Federal Product Liability Reform in 1997: History and Public
Policy Support its Enactment Now, 64 TENN. L. REV. 595, at 596-597 (1997).
4 RALPH NADER ET AL., NO CONTEST: CORPORATE LAWYERS AND THE PERVERSION OF
JUSTICE (1997).
5 ASAHI SHIMBUN, October 18, 1998.
6 Koichiro Fujikura, Amerika ni okeru Tabako Sosho no Tenkai to Zenmen Wakai
[Developments in U.S. Tobacco Litigation and Comprehensive Settlements], 1118 JURISTO
60 (1997).
42 LUKE NOTTAGE / YOSHITAKA WADA ZJapanR
major tobacco litigation settlements in the United States. As a result of the latter,
tobacco companies are finding themselves under increasing pressure in many other
countries; but the problem is potentially particularly acute in Japan, where government
regulation has been comparatively lax.7 In the suit brought on 15 May 1998, the
plaintiffs have made it clear that while they are keen to obtain compensation for harm
to their health from smoking, they want to bring about a major change in the govern-
ment’s policies with respect to tobacco and to preserve younger generations from
similar harm. Already, there have been calls for the government to at least require much
stricter health warnings on cigarette packs. In April this year, the tobacco industry
finally agreed to completely stop advertising on television and radio, having agreed last
year to stop sales from vending machines late at night.8 Again, there are interesting
parallels with “public interest” tobacco litigation in the United States.9
In this article, we first locate such striking developments in the context of emerging
empirical support for the proposition that PL is playing an increasingly important—if
not necessarily revolutionary—role in Japan today. This leads us to ask why earlier
commentators appear to have seriously underestimated the significance of the enact-
ment of new product liability in Japan. This seems to result from inappropriate
comparisons of substantive law, but especially from strong pre-conceived views as to
the lack to consumer consciousness and indeed legal consciousness in Japan even in the
late 1990s (Part I.1). These pre-conceptions also appear to underpin broad-brush
criticism of industry-association (product-specific) PL ADR Centers which have been
established in the wake of the enactment of the new legislation. A closer analysis of
their establishment, in the context of broader changes in Japan over the last two
decades, suggests that they are certainly more than just bureaucracy-driven attempts to
divert consumers into opaque forums to prevent them from asserting their rights to
resolve product accident problems, “bureaucratic informalism”, nor mere “industry
7 Mark Levin, Smoke Around the Rising Sun: An American Look at Tobacco Regulation in
Japan, 8 STAN. L. & POL'Y. J. 99 (1997).
8 Editorial, ASAHI SHIMBUN, May 16, 1998; see also YOMIURI SHIMBUN, May 17, 1998.
9 See, e.g., Robert Rabin, A Sociolegal History of the Tobacco Tort Litigation, 44 STAN. L.
REV. 853 (1992). There are also interesting contrasts, of course, such as the scale, timing,
and results of litigation in the U.S., determined in part by a different legal profession. Cf.,
e.g., Marc Galanter, Sometimes the Dragon Wins! The Tobacco Settlement and the Legal
Profession, in PROCEEDINGS OF THE CONFERENCE ON THE SO-CALLED GLOBAL TOBACCO
SETTLEMENT: ITS IMPLICATIONS FOR PUBLIC HEALTH AND PUBLIC POLICY, held at the
University of Wisconsin-Madison Law School, October 15-17 1997 (Institute for Legal
Studies, ed., 2nd reprint March 1998). An international conference on tobacco litigation will
take place at Kyoto University Law Faculty in autumn 1998; enquiries can be directed to
Prof. Takao Tanase (<[email protected]>).
informalism” to the same end, nor even a combination of both (Part I.2). We think this
view provides a more balanced starting point for our analysis of how the Centers have
actually begun to operate, our major interest. Even in these more informal processes, we
begin to perceive a quite different type of Japanese consumer, actively engaging with
legal norms—“consumer informalism” (Part II). Also, of more general theoretical
interest, is the tensions—but sometimes the complementarities—between formal and
informal norms in an evolving institutional setting. These and other insights for general
legal and social theory, then, must also be added to the equation in considering dispute
resolution in Japan into the 21st century. To this end we conclude with some directions
for future research (Part III).
1. The New PL Law and its Impact: Comparatively Less Favourable to Consumers?
Behind the trend in Japan towards more claims against manufacturers, epitomised by
the konnyaku jelly case and renewed tobacco litigation, lies the enactment of a new
strict liability Product Liability Law in June 1994.10 The PL Law draws on the 1985
E.C. Directive,11 but with some significant differences. One criticism of the PL Law
from commentators outside Japan, particularly from those in the U.S., is that it is
comparatively less consumer oriented.12 In fact, comparisons with the E.C. Directive,
and the Australian amendments to the Trade Practices Act in 1992 which also drew on
the Directive, reveal this not to be so.13 Certainly, the PL Law does allow claims for
consequential damage for all types of property, including property intended for or used
more in business, and lost profits, and a number of cases filed under the PL Law have
involved such claims by businesses. The E.C. Directive limits consequential property
damage claims to private or personal property (art. 4(b)). In this respect, the PL Law is
less focused purely on the goal of “consumer” protection. Yet while some of the
claimants so far have been small businesses in Japan (see, e.g., Appendix B), some of
them may deserve “protection” along with purely private individuals—an argument
given partial legislative recognition in other jurisdictions (e.g. in Australia under the
exception to the exclusion in section 4(2) of the Contracts Review Act 1980 (NSW)).
10 Law No. 85, 1994. Compare the translation by the Ministry of International Trade and
Industry at <http://www.jef.or.jp:80/news/guidepll.html> with that by Nottage in Appendix
A and at <http://www.law.kyushu-u.ac.jp/~luke/pllaw.html>.
11 Council Directive 85/375.
12 Andrew Marcuse, Why Japan’s New Products Liability Law Isn’t, 5 PAC. RIM L. & POL’Y.
J. 365, at 382-394 (1996).
13 Luke Nottage, “Global Harmony and Disharmony in Accident Compensation: Japan’s New
Product Liability Legislation compared to the E.C. Directive and Part V.A. of the Australian
Trade Practices Act” (unpublished manuscript, November 1997, on file with the authors and
editors of this journal).
And in other respects the PL Law is more favourable to victims of accidents, both
private and business. These include:14
• a possibly more extensive definition of liable “manufacturer” (art. 3(2));
• claims allowed for the defective product itself, as long as there is some conse-
quential damage to other property (art. 3);
• extended limitation period for “toxic tort” situations (art. 5(2);
• no minimum claim amount (cf. art. 9 of the Directive); and
• no total liability cap for manufacturers (cf. art. 16(1) thereof).
Such ill-conceived criticism of the PL Law, then, may have arisen from adding—to a
comparison of E.C., and especially U.S. law, with the final PL Law finally enacted in
Japan in 1994—a comparison with law reform proposals mooted mainly by scholars in
Japan back in the early 1970s. Those proposals were based on overseas developments at
the time, such as European initiatives before a decade of debate and compromise
resulting in the 1985 Directive. Criticism may also stem from a rosy view of U.S.
product liability law, one already outdated in the light of indications that the tide turned
there too since the early to mid-1980s: a “quiet revolution”—or counter-revolution—in
the sense of fewer PL suits and more decisions favouring manufacturers.15 Since the
1970s, state products liability has also become much more favorable to defendants.16
Somewhat paradoxically,17 this now underpins strident calls for federal PL legislation
14 See also Tsuneo Matsumoto, “Recent Developments in the Law of Product Liability in
Japan” (Paper presented at the Fifth Annual Conference on Consumer Law, 25-27 May
1995, Osgoode Hall Law School, York University), and <http://www.law.kyushu-
u.ac.jp/~luke/comppl.html>. Cf., comparing an earlier draft of the PL Law, Hiroshi
Kodama, Der aktuelle Stand der Produkthaftunggesetzgebung in Japan [The Present State
of Product Liability Law Enactment in Japan], in VOM NATIONALEN ZUM TRANS-
NATIONALEM RECHT [FROM NATIONAL TO TRANSNATIONAL LAW] 53 (Karl Kroeschell &
Albrecht Cordes, eds., 1995). And see now the debate, admittedly precipitated by the
political salience of the Mad Cow Disease outbreak, about amending the EC Directive to
cover also unprocessed primary agricultural products: Note, La responsabilité du fait des
produits défectueux [Responsibility for Defective Products], 1998/1 Revue du Marché
Unique Européen 132 (1998).
15 James Henderson & Theodore Eisenberg, The Quiet Revolution in Products Liability: An
Empirical Study of Legal Change, 37 UCLA L. REV. 479 (1990); Terence Dunworth & Joel
Rogers, Corporations in Court: Big Business Litigation in U.S. Federal Courts, 1971-1991,
21 L. & SOC. INQUIRY 497, 537-540 (1996). See also Michael Rustad, In Defense of
Punitive Damages in Products Liability: Testing Tort Anecdotes with Empirical Data, 78
IOWA L. REV. 1 (1992) (on the consistency which has emerged even in punitive damages
awards); and more generally Stephen DANIELS & JOANNE MARTIN, CIVIL JURIES AND THE
POLITICS OF REFORM (1995), and [1998/1] WISC. L. REV. (special issue on punitive
damages).
16 Ellen Wertheimer, Unknowable Danger and the Death of Strict Liability, 60 U. CINN. L.
REV. 1183 (1992)
17 Ellen Wertheimer, The Products Liability Shell Game: A Reponse to Victor E. Schwartz and
Mark A. Behrens, 64 TENN. L. REV. 627 (1997).
in the same direction,18 or at least more detailed rules in a new Restatement from the
American Law Institute.19
Explicitly, or more often implicitly, critics thus appear to be holding the actual
Japanese law to an idealised view of U.S. product liability law. Amongst U.S. and other
foreign commentators on Japanese contracting, there has been a similar tendency to
Japanese contract practices and law with an idealised perception of foreign law.20
Of most concern, such criticism of the PL Law appears to follow from strong pre-
conceived views as to a purported lack of consumer consciousness in Japan. This is
usually linked to broader assertions as to limited “legal consciousness”, in turn said to
be derived from a traditional cultural adversion rooted in Confucian deference to
superiors and promotion of harmony.21 Starting from such premisses, it is all too easy
to end up analysing the PL Law as comparatively anti-consumer in orientation, and
unlikely to hold any lasting significance.
Such preconceptions began to take hold among foreign commentators in the late
1960s and early 1970s. Important works by Japanese scholars were translated in foreign
languages and often misread, in line with the turn to cultural relativism.22 Their persis-
tence in the 1990s demonstrates engrained and broad-brush “legal orientalism”.23 In
fact, the notion of limited legal consciousness because of deeprooted “cultural” traits
has long been criticised as contrary to such facts as litigation rates which were higher
before than after World War II. Instead, Haley and others have stressed that institutional
barriers to litigation are major important determinants of low litigation rates.24
18 Schwartz & Behrens, supra note 3.

19 James Henderson & Aaron Twerski, What Europe, Japan and Other Countries Can Learn
from the New American Restatement of Products Liability, TEXAS INT’L. L.J. (forthcoming
1998; Paper presented at the Symposium on “Products Liability: Comparative Approaches
and Transnational Litigation”, February 19-20, 1998, University of Texas).
20 Cf. Takashi Uchida, The New Development of Contract Law and General Clauses:
A Japanese Perspective, in JAPANESE AND DUTCH LAWS COMPARED 119, at 122-124 (The
Organising Committee of the Symposium, ed., 1992); and the more general criticism of such
idealism compared to U.S. contract law “in action”, in Stewart Macaulay, The Reliance
Interest and the World Outside the Law Schools’ Doors, [1991] WISC. L. REV. 247.
21 Mark A. Behrens & Daniel H. Raddock, Japan’s New Product Liability Law, 16 U. PA. J.
INT'L. BUS. L. 669, at 671-672 (1995); Anita Bernstein & Paul Fanning, ‘Weightier than a
Mountain’: Duty, Hierarchy and the Consumer in Japan, 45 VAND. J. TRANS. L. 45, at
60-67 (1996).
22 Luke Nottage, Contract Theory and Practice in Japan: An Antipodean Perspective, in
JAPAN: ECONOMIC SUCCESS AND LEGAL SYSTEM 197 (Harald Baum, ed., 1997); also in
substantially revised, updated form in 31 HIKAKUHO ZASSHI [JOURNAL OF THE INSTITUTE OF
COMPARATIVE LAW IN JAPAN] 55-113 (1998).
23 Veronica Taylor, Beyond Legal Orientalism, in ASIAN LAW THROUGH AUSTRALIAN EYES 47
(Veronica Taylor, ed., 1997). See also Veronica Taylor & Michael Pryles, The Cultures of
Dispute Resolution in Asia, in DISPUTE RESOLUTION IN ASIA 1 (Michael Pryles, ed.).
24 John O. Haley, The Myth of the Reluctant Litigant, [1978] J. JAP. STUD. 359; John O.
Haley, The Politics of Informal Justice–The Japanese Experience 1922-1941, in 2 THE
POLITICS OF INFORMAL JUSTICE: COMPARATIVE STUDIES, 125 (Richard Abel, ed., 1982);
Ramseyer has added that nonetheless the greater predictability of the Japanese legal
system may allow for and encourage more settlement out of court.25 He showed how
Japanese victims of traffic accident disputes do assert claims (disrupting harmony), and
reach settlements consistent with legal standards (overcoming institutional barriers).26
Common to both is an image of Japanese as rational decision-makers, not cultural
automatons brainwashed by Confucian ideas. As Foote has pointed out, the emergence
of a predictable and efficient system of compensation may nonetheless reflect some
value judgments as to the primacy of this rather than individualised justice.27 But this
does not necessarily equate with the usual cultural stereotypes, and the weight of this
preference is debatable. Tanase has also pointed out major latent instabilities in the
current automobile dispute resolution system,28 building in part on his pathbreaking
study on pro se litigation in Japan,29 and revealing a more complex model of human
agency than that of homo economicus. Some preliminary work by Wada in this area,30
and in areas such as tenancy disputes,31 supports this more “embedded”, yet still pro-
active model of human agency, despite continued structural barriers in the legal system
in Japan—as indeed in many other modern industrialised societies. This is also consis-
restated in JOHN O. HALEY, AUTHORITY WITHOUT POWER: LAW AND THE JAPANESE
PARADOX (1991). See also Luke Nottage & Christian Wollschläger, What Do Courts Do?,
[1996] N.Z.L.J. 369 (comparing civil litigations in Japan from 1875-1994). For other recent
reinterpretations of Japanese legal history, see, e.g., Dimitri Vanoverbeke, Tradition and
Law in Conflict—Farm Tenancy Conciliation and Social Change in Interwar Japan, 64
HOSEI KENKYU F11-F85 (1998) (revisiting the Taisho era: showing how landowners tried to
invoke Civil Code provisions in their favour through the court process, and how
institutioning mediation may have exacerbated the weakness of tenant farmers but also
allowed for norms to develop which sometimes worked in their favour); HERMANN OOMS,
TOKUGAWA VILLAGE PRACTICE: CLASS, STATUS, POWER, LAW (1996) (revisiting the
Tokugawa era: showing active invocation of legal norms despite structural barriers); and
Charles Holcolme, Ritsuryo Confucianism, HARV. J. OF ASIATIC STUD. 543-573 (1997)
(revisting the Heian era: reconceptualising the “administrative state”).
25 J. Mark Ramseyer, Reluctant Litigant Revisited: Rationality and Disputes in Japan, [1988]
J. JAPANESE STUD. 111.
26 J. Mark Ramseyer & Minoru Nakazoto, The Rational Litigant: Settlement Amounts and
Verdict Rates in Japan, 18 J. LEG. STUD. 262 (1989).
27 Dan Foote, Resolution of Traffic Accident Disputes and Judicial Activism in Japan, 25 L. IN
JAPAN 19 (1995). See also Robert Leflar, Personal Injury Compensation Schemes in Japan:
Values Advanced and Values Undermined, 15 U. HAW. L. REV. 743, 751-753 (1993).
28 Takao Tanase, The Management of Disputes: Automobile Accident Compensation in Japan,
24 L. & SOC’Y. REV. 621, 679-687 (1990).
29 Takao Tanase, HONNIN SOSHO NO SHINRI KOZO [THE TRIAL STRUCTURE IN PRO SE
LITIGATION] (1989).
30 Yoshitaka Wada, Merging Formality and Informality in Dispute Resolution, 27 VICTORIA
U. WELLINGTON L. REV. 45 (1997).
31 Reproduced in Yoshitaka Wada, MINJI FUNSO KOSHO KATEI RON [CIVIL DISPUTE
NEGOTIATION PROCESS THEORY] 178-198 (1991).
tent with recent comparative empirical studies of Japanese contract law and practice.32
Thus, although stereotypes about Japanese law and society dating back to the early
1970s may have had some basis at the time, they are increasingly belied by recent
research and new theoretical perspectives in the late 1990s.
Preconceptions as to both limited legal consciousness and, in particular, weak
consumerism in Japan are also belied by events since the PL Law came into force. In
addition to cases like the konnyaku jelly settlement mentioned at the outset where
manufacturers have settled without the plaintiffs even having to file suit, a steady
stream of claims has been filed in courts around the country.33 While no court has yet
rendered judgment under the new law on claims filed, this is not surprising given that
the PL Law only applies to defined “products” causing personal injury or consequential
property loss, delivered by specified “manufacturers” (including importers) after the
law came into effect on July 1, 1995. In European countries, which incorporated the
1985 E.C. Directive into their domestic law in the late 1980s and early 1990s, the first
reported and even unreported court decisions applying the new legislation are only just
beginning to surface.34 In Australia as well, no cases have yet been reported since the
1992 amendments.35 Yet manufacturers there have become much more aware of—and
careful in—quality control techniques, warnings and so on, and product recalls.35a This
reinforces how the much more extensive product liability litigation in the US is
crucially determined by a number of deep-rooted institutional features there (especially
the comparative availability of punitive damages, contingency fees (for a large and
32 Luke Nottage, Economic Dislocation and Contract Renegotiation in New Zealand and
Japan: A Preliminary Empirical Study, 27 VICTORIA U. WELLINGTON L. REV. 59 (1997);
Luke Nottage, Planning and Renegotiating Long-Term Contracts in New Zealand and
Japan: An Interim Report on an Empirical Research Project, [1997] N.Z. L. REV. 482;
Luke Nottage, Bargaining in the Shadow of the Law, and the Law in the Light of
Bargaining: Contract Planning and Renegotiation in New Zealand, Japan and the U.S., in
INTERACTION OF LEGAL CULTURES [CHANGING LEGAL CULTURES II] (Johannes Feest &
Volkmar Gessner, eds., 1998).
33 See Appendix B.
34 See, e.g., Jane Stapleton, Products Liability in the United Kingdom: The Myths of Reform,
TEXAS INT’L. L.J. (forthcoming 1998; Paper presented at the Symposium on “Products
Liability: Comparative Approaches and Transnational Litigation”, February 19-20, 1998,
University of Texas); and Gerhard Hohloch, Produkthaftung in Europa [Product Liability in
Europe], 2 ZEUP 408 (1994), 439 (citing only two court decisions of German superior
courts).
35 Martin Vranken, The First Decennium of the European Product Liability Directive: A
Cause for Celebration?, 4 TORT L.J. 225 (1996).
35a See, e.g., Patrick Kelly & Rebecca Attree, Practical Steps To Be Taken by Producers and
Suppliers to Manage Product Liability and Safety Risks, in EUROPEAN PRODUCT
LIABILITIES 517 (Patrick Kelly & Rebecca Attree, eds., 2nd ed. 1997); JOCELYN KELLAM, A
PRACTICAL GUIDE TO AUSTRALIAN PRODUCT LIABILITY 52-72 (1996); Michael Pryles,
Product Recalls in Australia, 69 AUST. L.J. 211 (1995).
vigorous body of trial lawyers), and multi-party action).35b But also that such extensive
litigation is not in itself an absolutely essential—or even completely desirable—means
to promote optimal product safety, while consumers are not necessarily significantly
disadvantaged by less litigation-friendly regimes.35c
In Japan, claims can also still be brought—and are being brought—under other
legislation for goods delivered before July 1, 1995, or otherwise outside the scope of the
PL Law. The main cause of action is in negligence under the general tort (fuhokoi)
provision of Article 709 of the Japanese Civil Code, enacted almost a century ago. But
claims under other provisions of the Code, both in tort and contract, have also seen
some success. Including 33 appeals, around 250 major reported decisions on product
liability under various legal theories have been identified, with an accelerating number
(about 50 of this total) reported since 1991.36 Recent examples of courts finding in
favour of plaintiffs include well-publicised cases involving television sets catching
fire.37 Filing of claims under the old law appears to have grown apace. Settlement,
particularly in favour of plaintiffs, also seems to be increasing.38 These trends are likely
35b On these comparative institutional differences, see, e.g., Christopher Hodges, Product
Liability in Europe: The Reality, [February 1998] INT’L. BUS. LAWYER 55 (1998); George
Menzies, Variations in Damages, [February 1998] INT’L. BUS. LAWYER 75 (1998); Colin
Loveday, Multi-Party Rules: U.S., Canada, Australia, and the U.K., [February 1998] INT’L.
BUS. LAWYER 77 (1998). Such factors, of course, have long been welcomed also by “forum-
shopping” litigants from abroad preferring to bring their product liability suits before U.S.
courts. See, e.g., Russell Weintraub, The United States as a Magnet Forum and What, If
Anything, To Do About It, in INTERNATIONAL DISPUTE RESOLUTION 213, 216-219 (Jack
Goldsmith, ed., 1997).
35c As Hodges points out (id.), it is not just a problem of limited access to justice: “... European
consumers are vocal and not stupid. Consumer organisations have considerable vigour and
the media is always on the lookout for a good story. If there was widespread dissatisfaction
over the level of safety of consumer products generally, or even of particular types, you
would expect to see more headlines about unsafe washing machines or electric keyboards or
cars than the actual headlines which usually relate to other aspects of health—such as
whether chocolate, beef and acohol are bad for you.”
36 See Masanobu Kato, Japanese Product Liability Law, TEXAS INT'L. L.J. (forthcoming 1998;
Paper presented at the Symposium on “Products Liability: Comparative Approaches and
Transnational Litigation”, February 19-20, 1998, University of Texas).
37 See e.g. Judgment of the Osaka District Court, 29 March 1994 (translated at
<http://www.law.kyushu-u.ac.jp/~luke/tvcase.html>) and Judgment of the Osaka District
Court, 18 September 1997 (noted by Toshiaki Hasegawa, Terebi Shukka Songai Baisho
Seikyu Jiken Hanketsu no Kento [An Analysis of the Judgment in the Case Claiming
Damages from a TV Catching Fire], 628 N.B.L. 27 (1997)).
38 See Appendix C. See also Masato Nakamura, Seizobutsusekinin Ho Shiko 1-nen to sono
Jittai–Kekkan Shohin 110-ban no Gaiyo [The PL Law In Effect for One Year and its Actual
Impact: An Outline of the Defective Products Free-Dial Service] 596 N.B.L. 23 (1996);
Mie Asaoka, Seizobutsu Sekinin Ho to Kekkan [The PL Law and Defects], in SEIZOBUTSU
SEKININ HO O UKASU TAME NI–HIGAI NO BOSHI, KYUSAI TO ANZEN JOHO NO KOKAI [TO GIVE
LIFE TO THE PL LAW: AVOIDING AND COMPENSATING FOR HARM, AND MAKING PUBLIC
to continue as amendments to the Code of Civil Procedure, in effect from 1 January

1998, reduce—or at least formalise lower—barriers to bringing and pursuing claims in
court.39
A number of empirical studies also offers some sense of what is happening further
down the “dispute resolution pyramid”.39a An annual survey of households in Tokyo in
1996 showed that 69% knew of the PL Law and its contents, compared to 39% the
previous year. Similarly, even a nation-wide survey showed that households that had
not heard of the PL Law had dropped from 32% in 1995 to 16% in 1996.40 Between
July and December 1996, the number of product quality complaints brought to govern-
ment sponsored Consumer Living Centers (“CLCs”, shohi seikatsu senta) increased to
1596 cases, about 2.5 times more than in the same period in 1995. Of these, 1014 com-
plaints involved consequential damages, and 155 involved products actually put into
circulation after July 1, 1995.41
In addition, a survey of consumer complaints officers in 360 companies and organi-
sations in the food, chemical, petroleum and electric machinery industries was con-
ducted in June 1996. 154 of 217 respondents (71%) said that they had received “more”
complaints than in 1994, before the PL Law came into effect, with 84 saying the
number of consumer complaints filed with them had increased more than 30 percent.42
This trend seems to be accelerating, since only 45% of respondents in a 1995 survey
had reported more complaints. The number of companies facing consumer compensa-
tion claims for defective products increased from 24 out of 217 in 1995 to 76 in 1996,
with 27 percent of these having PL insurance and either having paid out compensation
or reportedly planning to do so. 23 percent of respondents considered that consumers’
understanding of the PL law had improved; but a similar proportion thought that there
was instead more misunderstanding, some adding that consumers were claiming under
the PL Law for all sorts of alleged problems.43
SAFETY INFORMATION] 5, at 9-10 (Nihon Bengoshi Rengokai Shohisha Mondai Taisaku

Iinkai, ed., 1995).
39 See generally Yasuhei Taniguchi, The 1996 Code of Civil Procedure of Japan: A Procedure
for the Coming Century?, 45 A.J.C.L . 767 (1997).
39a See generally William Felstiner, Richard Abel & Austin Sarat, The Emergence and
Transformation of Disputes: Naming, Blaming, Claiming, 14 L. & SOC’Y REV. 631 (1980-
81).
40 Chie Mori, PL Ho Shiko kara 1-nen–Jiko Boshi no tame ni Do Kawatta ka [A Year after the
PL Law Came into Effect: How Have Things Changed to Prevent Accidents?], 120
TASHIKA NA ME 18 (1996).
41 Motoyoshi Shizui, Keizai Kikakucho ni okeru Seizobutsu Sekinin Seido kanren Shisaku e no
Saikin no Torikomi Jotai [The Economic Planning Agency’s Recent Involvement in
Measures Related to the PL System], 596 N.B.L. 18 (1996).
42 JAPAN TIMES, December 25, 1997.
43 ASAHI SHIMBUN, November 24, 1997.
This has had an impact on manufacturers, which have responded with a range of
measures.44 There are efforts to improve product safety at the level of the individual
firm; new committees and guidelines on improving labelling and instructions instituted
by industrial associations; more monitoring of accidents by associations; and, albeit to a
much lesser extent, issuance of new guidelines on recalls and customer “after care”.45
Individual firms are expanding their legal section personnel to deal with PL issues.46 In
a survey of 1320 listed and unlisted companies surveyed in July 1995, about 80% had
set up new posts to respond to PL issues. Around 75% of these had taken out PL
insurance, reviewed instruction booklets etc., and/or generally improved product quality
management.47
In 1996, Fukaya and his students conducted a random mail survey of 500 listed
companies in Japan, receiving 115 valid responses (mainly from companies in the
primary sector, food products, textiles, chemical, medical, lacquerware/wood products,
machinery, electrical appliances, and transport industries).48 They found that many
companies had initiated new measures from the early 1990s, but particularly in 1994
(when the law was enacted) and 1995 (when it came into force). New positions dealing
with PL issues had been established in 25% of companies in 1994 and 43% in 1995. PL
education programmes had been initiated, respectively, in 18% and 53%, albeit not
necessarily very comprehensively (only 22% provided such education to all employees).
In 1994, 7%; in 1995, 56%; and in 1995, a further 7.8% companies, amended instruc-
tion booklets etc. provided with their products, particularly as to how to assemble
(28%) and use (74%) them and in respect of warnings (87%), after the new legislation
and almost all commentaries highlighted potential liability for inadequate information
supplied with a company’s products. By 1996, 68% of companies were industries which
had industry safety standards and 70% had their own specific standards (70%). 14% in
total noted that one set or the other had been established after enactment of the PL law;
and 44%, that these had been made stricter (although 9% did not respond, and
33% thought there was no relation between the Law and the standards). Only a total of
12% considered that they stopped producing goods (1-4 cases per annum) due to the
44 For an earlier study of Japanese firms’ product safety activities, see generally Hiroshi
Sarumida, Comparative Institutional Analysis of Product Safety Systems in the United
States and Japan, CORNELL INT’L. L.J. 79 (1996).
45 Ryuichi Ito, Tsusho Sangyosho ni okeru Seizobutsu Sekinin Ho Shiko 1-nen to Shoshisaku
[The PL Law In Effect for One Year and Measures in MITI], 596 N.B.L. 12 (1996).
46 NIKKEI WEEKLY, November 17, 1997.
47 Mori, supra note 40, at 19. But cf. YOMIURI SHIMBUN, February 20, 1997 (reporting that a
director of a major Japanese insurance company estimates that about 40% of large com-
panies currently take out PL insurance, while only about 10% of small to medium sized
firms do so). See also JETRO 1995.
48 Itaru Fukaya, Seizogyosha ni yoru Seizobutsu Sekinin Taisaku ni kansuru Jittai Chosa
[An Empirical Study of Measures taken by Manufacturers in relation to Product Liability],
29 SEINAN GAKUIN DAIGAKU HOGAKU RONSHU 43 (1997).
risk of accidents, while 43% reported no cases of this (and 46% said that this whole
issue was unrelated to enactment of the PL Law); but 42% said the number of
suspended product lines per annum was unclear, probably implying that a significant
proportion of products are being at least redesigned in the light of risks of accidents.
Almost 90% of companies had taken out private PL insurance, mostly in 1994 (8%) and
in 1995 (52%), as well as joining various industry based insurance schemes. By 1996,
64% of companies had specific consumer advice or complaints sections, dealing mainly
problems with the goods themselves (76%) and how to use them (52%), but also more
obviously with PL Law matters: consequential property damage (16%), minor physical
harm not involving medical services (14%), minor physical harm involving medical
services (11%), and major physical harm (5%: multiple responses possible). 58% of
respondents claims involved less than Yen 1,000,000 (U.S.$8000), but 39% did not
respond, suggesting perhaps that the quantum may also have been difficult determinate
(and possibly quite large). 60% had a company manual setting out how to resolve
disputes (51% dealing specifically with product “accidents”), and 50% referred claims
to a specific lawyer when a “dispute” arose (presumably going beyond that).
Of course, all these indications of considerable claiming by consumers, and signifi-
cant responses by manufacturers in the context of the PL Law enactment, do not neces-
sarily add up to a revolution in products liability of the scale experienced—or at least
perceived—in the U.S. in the 1960s and 1970s. But compared to the minimal impact of
the E.C. Directive, for instance,49 the PL Law continues to play a significant role in
maintaining the considerable momentum in consumer consciousness which became
apparent from the early 1990s, and in strengthening product safety activities in Japanese
corporations.
2. The Birth of PL ADR Centers: Mere “Bureaucratic Informalism”?

Despite this, pre-conceptions of weak consumerism and legal consciousness persist in
the commentary on PL in Japan, particularly from commentators outside Japan.50 It is
also related to a second criticism of the PL Law, again particularly by U.S. commenta-
tors, which we will focus on in this paper: the emergence of industry-based PL ADR
centers in the wake of the enactment of the PL Law. Bernstein and Fanning,51 for
instance, have suggested that these Centers are another good example of “bureaucratic
informalism” in Japan. They assert that the pattern is similar to the government’s
response to environmental pollution in the 1960s and early 1970s, and in a number of
49 Stapleton, supra note 34.

50 But see Jason Cohen, The Japanese Product Liability Law: Sending a Pro-Consumer
Tsunami through Japan’s Corporate and Judicial Worlds, 21 FORDHAM INT’L. L.J. 108
(1997) (although the title of his work, at least, overstates the case in the other direction).
51 Supra note 21, at 70-72.
other areas vividly portrayed by Frank Upham.52 That is, a powerful pro-business
bureaucratic machine swinging into action to minimise social disruption, by diverting
grievances “into an official response center designed to ameliorate and conciliate, rather
than set precedents related to rights”.53
Behind this view, as well, we can sense an idealised standard of comparison, namely
the U.S. court process ignoring all the problems it has developed in actually resolving
accident disputes to the satisfaction of all involved.54 This idealisation of the formal
court process can generate a particularly strong aversion to alternative dispute resolu-
tion procedures, and a focus on substantive law rather than procedure and the process of
resolving disputes. This tendency can be seen readily in the products liability arena in
the United States. The vast literature generated since the 1970s has focused almost
exclusively on substantive law issues, with only mass tort dispute resolution focusing
mainly on procedure and process, and only one article—to our knowledge—carefully
analysing possible interaction between PL law and ADR.55 Although some serious
discussion about ADR emerged in the mid-1980s as part of proposals for federal PL
legislation,56 ADR is only included in a very weak form in the latest proposals, raising
criticisms that it is “utterly trivial” and simply a “meaningless sop to consumer
groups”.57 Such a focus on substantive law and the formal court process is not unique
to the U.S.; “modern” legal systems rooted in 19th century ideals tend to lead to this
focus even today, and Japan is no exception.58 Yet it seems comparatively strong in the
U.S., where court process has long been awarded equal status with legislative process,
compared to parliamentary democracies like Japan or the United Kingdom.59
We believe that the view of Japanese PL ADR Centers as mere “bureaucratic infor-
malism” is inconsistent with the process by which the PL Law was enacted, and the
52 FRANK UPHAM, LAW AND SOCIAL CHANGE IN POSTWAR JAPAN (1987).

53 Bernstein & Fanning, supra note 21 at 70; see also Marcuse, supra note 12, at 367, 397.
54 See e.g., PETER BELL & JEFFREY O’CONNELL, ACCIDENTAL JUSTICE: THE DILEMMAS OF
TORT LAW (1997) (especially chs 1-2 and 7, portraying vividly the U.S. system “in action”,
with extensive further references). More generally on the stultifying forms of legal analysis
that tends to emerge from the court process, and academic commentary based thereon, see
ROBERTO UNGER, WHAT SHOULD LEGAL ANALYSIS BECOME? (1996).
55 Frances Zollers, Alternative Dispute Resolution and Product Liability Reform, (1988) 26
AMERICAN BUS. L.J. 479. For a much shorter and less sophisticated analysis, see Malcolm
Wheeler, Comparative Aspects of Dispute Resolution in Particular Areas: Product
Liability, 17 CANADA-U.S. L.J. 359 (1991).
56 Zollers, supra note 55, at 493-499.
57 Wertheimer, supra note 17, at 643.
58 Wada, supra note 30, at 53.
59 See generally PATRICK ATIYAH & ROBERT SUMMERS, FORM AND SUBSTANCE IN ANGLO-
AMERICAN LAW 298-315 (1987). For a call for more weight to be awarded to more
democratic institutions, see e.g. Jeremy Waldron, Dirty Little Secret, 98 COLUM. L. REV.
510 (1998).
path leading to the establishment of the various Centers.60 If it were accurate, one
would have expected the Ministry of International Trade and Industry (“MITI”) to have
developed, promulgated, and implemented quite detailed ideas on how to establish and
run industry-based ADR centers, early on during the debate over enactment of the Law.
One would also have expected MITI’s views to have strongly encouraged diversion of
disputes into opaque private forums. In fact, this did not happen. In December 1992 the
Seihin Anzen Kyokai (Product Safety Association) under the auspices of MITI did
initiate a study into the possibility of PL ADR in general, which reported in March
1993.61 The media quickly reported that the idea of industry association based Centers
was being mooted.62 Pro-consumer groups, such as one formed in May 1991 to push for
enactment of the PL Law, repeatedly made known their concerns that these maintain
minimum standards so as not to serve only industry interests.63 The more pro-consumer
Economic Planning Agency (“EPA”, in charge of consumer policy) also entered the
scene by organising another study group which reported in March 1994,64 providing a
counterweight (or threat thereof) to excessive intervention by MITI.
Skeptics might see this as a minor turf war, in fact underlining the continued impor-
tance of the bureaucracy as a whole, with a significant commonality of interest in
diverting social pressures into informal fora, thereby expanding each department’s
sphere of influence. But neither study group came up with detailed proposals which
might have furthered any such objective, and pressure from consumer interests was
ongoing. MITI publicised its views formally, in a circular (tsutatsu) to industry asso-
ciations, only in late October 1994.65 These contained very little further detail, and the
tsutatsu was issued four months after the PL Law had been enacted. Moreover, the first
PL ADR Center (for Housing Products) had already been established almost two
months’ previously, on September 1, 1994. Thus, the MITI tsutatsu might be interpreted
rather as ex post affirmation of an industry initiative, emerging in a bureaucractic
deadlock underpinned by significant pro-consumer sentiment. Further complicating the
simplistic view that MITI was the major player in establishing PL ADR Centers, is the
60 The following is only an outline of some key events and determinants; we plan to tell the full
story elsewhere. See generally Catherine Dauvergne, The Enactment of Japan’s Product
Liability Law, 28 UBC L. REV. 403 (1994); Susumu Hirano, Drafts of the Japanese Strict
Liability Code: Shall Japanese Manufacturers Also Become Insurers of their Products?, 25
CORNELL INT’L. L.J. 643, 648-655 (1992).
61 See Tsusho Sangyosho Sangyo Seisakukyoku, Shohikeizaika, ed., PL TAISAKU HANBUKKU–
KIGYO TAIO NO JISSAI [PL MEASURES HANDBOOK: THE REALITY OF COMPANIES’ REPONSES]
187-203 (1994).
62 See, e.g., NIKKEI SHIMBUN, March 4, 1993.
63 See 1 PL HO NYUSU (1991) at 1; 8 PL HO NYUSU (1993) at 1; 15 PL HO NYUSU(1995) at 2;
17 PL HO/JOHO KOKAI NYUSU (1995) at 1.
64 See NIRA, ed., SAIBANGAI FUNSO SHORI KIKAN NO ARIKATA NI KANSURU KENKYU [STUDY ON
ESTABLISHING AN OUT-OF-COURT SYSTEM FOR PRODUCT LIABILITY DISPUTE RESOLUTION]
(NIRA Research Report No 930033, 1994).
65 See Tsusho Sangyosho Sangyo Seisakukyoku, Shohikeizaika, ed., supra note 61, at 84-97.
fact that a number of associations with which these are affiliated come under the juris-
diction of other ministries. Also acting against bureaucratic capture, the PL Law was
enacted in the context of calls by the U.S. in the early 1990s, under the Structural
Impediments Initiative, for a more level playing field in terms of liability regimes, and
greater transparency.66 It should also not be forgotten that MITI’s tsutatsu was issued
only after two Diet committees had publicised resolutions, as the PL Law itself was
being enacted, which included urging creation of ADR institutions to better achieve the
objectives of the new legislation.67 The legislature therefore provided a green light on
this point to both industry and many branches of the bureaucracy, with considerable
involvement of legislators in all aspects of PL reform from the early 1990s.
Moreover, after the Centers were established, at least some of them (like the Gas
Appliances PL Center) quickly and pro-actively developed various ways to manage
their schemes. There is little evidence of much guidance from MITI or other agencies.
Rather, a number of leading Centers (like the Housing Products PL Center68) have been
able to draw on decades of experience in managing industry-based, quasi-strict liability
optional insurance and dispute resolution schemes.69
The fact that funding for these Centers comes almost exclusively from the industry
associations themselves, rather than MITI, gives the former potentially more clout than
the latter in their operation. MITI’s role may be largely limited to standing on the side-
lines, holding a red flag which the Centers know it might wave—suspending their
operations or requiring improvements—if they become too self-serving. With the EPA
on the other sideline, and media and other consumer interests in the spectator box, this
may constitute a realistic safeguard. A second role actually being played by MITI now,
though, is to promote information flows between the different Centers. This role is quite
limited too, however, and much of this information is or increasingly can be made
available to those outside industry circles, directly or via the EPA and its satellite
organisations like the CLCs. Rather than “bureaucratic informalism”, then, this may
66 Parallels can be drawn with the enactment of the PL Law, and the Administrative Procedure
Act the year before. For the latter and a theoretical framework, see Masaki Abe, Foreign
Pressure and Legal Innovation in Contemporary Japan: The Case of the Administrative
Procedure Act, in THE PROCEEDINGS OF THE 1995 ANNUAL MEETING OF THE RESEARCH
COMMITTEE ON SOCIOLOGY OF LAW (INTERNATIONAL SOCIOLOGICAL ASSOCIATION) “LEGAL
CUTLURE: ENCOUNTERS AND TRANSFORMATIONS”, PAPERS SECTION MEETINGS II (Japan
Committee for the RCLS95, ed., 1995).
67 See Keizai Kikakucho Kokumin Seikatsu Kyoku Shohisha Gyosei Daiikka, ed., TSUIJO
KAISETSU SEIZOBUTSU SEKININ HO [ARTICLE-BY-ARTICLE COMMENTARY ON THE PL LAW]
143-145 (1994).
68 See, e.g., Manabu Hayashida, PL Mondai no Saibangai Funso Shori—Jutaku Buhin PL
Senta o Rei to shite [Settling PL Problems Out of Court: The Housing Products PL Center
as a Case Study], 107 HO NO SHIHAI 21 (1997).
69 In the case of this Center, the “Better Living” scheme: see generally J. Mark Ramseyer,
Products Liability through Private Ordering: Notes on a Japanese Experiment, 144 U. PA.
L. REV. 1823 (1996).
represent “industry informalism”. Certainly, it seems wrong to view these Centers as

“official response centers”.70
Those still wedded to pre-conceptions of weak legal consciousness and consumerism
in Japan, premissed on limited scope for human agency following the Confucian
tradition, may retort that it does not really matter if the Centers are an instance of
bureaucratic informalism and/or industry informalism with perhaps some last minute
confirmation by legislative bodies. After all, when Frank Upham first comprehensively
propounded his thesis that an elite in Japan diverted disputes away from the courts, he
did not spell out whether this was driven by bureaucrats, business interests, or even the
long dominant Liberal Democractic Party (the other side of the “iron triangle” often
said to have governed post-World War II Japan).71 Those following Upham’s primary
thesis, however, have tended not to be so careful. Also, his influential work published in
the late 1980s can be read as suggesting that the bureaucracy does have the upper
hand,72 although his most recent studies reveal a more restricted role.73
We do not propose to resolve here the perennial question of “who governs” Japan.74
We do suggest, however, that the emergence of the PL ADR Centers may represent a
good example of a pluralistic process of bargaining among a range of government
agencies, industry itself, the legislature, and pro-consumer interests. This accords with
recent reinterpretations of contemporary Japanese democracy,75 as well as the declining
role of MITI since the mid-1970s and perhaps even earlier.76 At least there is enough
evidence in the establishment of the Centers to suggest that they do not represent either
mere “bureaucratic informalism”, or some combination of industry and bureacractic
informalism which overwhelms Japanese consumers with an engrained weak conscious-
ness of rights and the rule of law.77
70 Bernstein & Fanning, supra note 53.

71 UPHAM, supra note 53, at 14-15.
72 See, e.g., id. at 26; and Yoshiharu Matsuura, Law and Bureaucracy in Modern Japan, STAN.
L. REV. 1627 (1989).
73 Frank Upham, Privatizing Regulation, 20 FORDHAM INT'L. L.J. 396 (1996).
74 See also CHALMERS JOHNSON, JAPAN: WHO GOVERNS? THE RISE OF THE DEVELOPMENTAL
STATE (1995); J. MARK RAMSEYER & FRANCES ROSENBLUTH, JAPAN’S POLITICAL MARKET-
PLACE (1993).
75 See, e.g., BRADLEY RICHARDSON, JAPANESE DEMOCRACY: POWER, COORDINATION, AND
PERFORMANCE (1997).
76 SCOTT CALLON, DIVIDED SUN: MITI AND THE BREAKDOWN OF JAPANESE HIGH-TECH
INDUSTRIAL POLICY, 1975-1993 (1995); see e.g. Takamichi Mito, Business-Government
Relations in Japan: MITI and the Petroleum Industry during the High Economic Growth
Era, 9 RESEARCH BULLETIN OF THE INTERNATIONAL STUDENT CENTER OF KYUSHU
UNIVERSITY 147 (1998). Cf. CHALMERS JOHNSON, MITI AND THE JAPANESE MIRACLE
(1982).
77 Cf. Yoichi Ohashi, Jigyosha Dantai no Katsudo [Activities of Industry Associations], 1139
Juristo (forthcoming, 1998) (discussing contemporary interrelationships between industry
and regulators, primarily in a consumer context, although perceiving more possibility of
bureaucratic influence in the establishment of PL ADR Centers). For a discussion of
Accordingly, in the rest of this article, we investigate instead the suggestion that the
PL ADR Centers “never empower” consumers,77a by looking at how they are already
operating in practice. We draw on interviews conducted at nine major Centers between
August 1995 and August 1997, and data released by them then and subsequently. We
briefly sketch three main features of their operations overall; but in developing our
interpretation of some of this data we focus mainly on the activities of one Center, the
Gas and Petroleum Appliance PL Center. The latter was one of the first to be
established, which may indicate this industry’s relatively genuine commitment to access
to justice and autonomy from MITI. This Center is also quite uncharacteristic in
regularly making public very useful information. However it is representative of the
three aggregate trends. Moreover, data from other Centers and interviews there suggest
that it reveals important mechanisms and processes at work in other Centers too,
although we are continuing to analyse this burgeoning amount of data and a definitive
view will first require us to systematically survey and interview the actual claimants at
these various Centers. We must also bear in mind, of course, that claimants even to such
Centers may be unrepresentative of the general population in Japan; but the total
number of claimants is significant. More importantly, there do remain structural con-
straints and other problems for those interacting these Centers, including the Gas and
Petroleum Appliance PL Centers. In a concluding section (III.), we address some of
these.
Nonetheless, we think our preliminary analysis amounts to a quite vivid picture of
Japanese actively engaging with legal norms, in quite sharp contrast to the above-
mentioned stereotype; a picture instead closer to that painted by Tanase, Wada and
Nottage in other areas. We also believe that Japan’s industry-based PL ADR Centers
can continue to play a valuable role in supporting this important dimension of human
agency. Indeed, we hope it may inspire scholars and policy makers outside Japan to
consider the potential of such ADR mechanisms in their legal systems and ongoing
debates about PL law.
II. JAPAN’S PL ADR CENTERS IN ACTION: MORE THAN MEETS THE EYE?
The PL Centers we visited, mostly in December 1996, had been operational for more
than a year. A distinctive pattern had begun to emerge. It was consistent with patterns
noted in late 1997,78 and mid-1996,79 and already starting to emerge in a study by the
contemporary rights-consciousness in Japan, see, e.g., Eric Feldman, Patients’ Rights,

Citizens’ Moevements and Japanese Legal Culture, in COMPARING LEGAL CULTURES
215-236 (David Nelken, ed., 1997).
77a Bernstein & Fanning, supra note 53.
78 See Hayashida, supra note 68 (including summary data for 13 Centers).
79 See Ito, supra note 45 (reporting on 6 Centers).
Japan Federation of Bar Associations in mid-late 1995.80 The pattern seems quite
stable, and likely to persist over the next few years. However, three important features
readily apparent from published data require closer examination. While these features
remain significant after closer scrutiny, this points the way to some more positive
aspects in the operations of the PL Centers, and especially towards a more vibrant
image of consumerism and legal consciousness in Japan today.
1. Many Inquiries, but Very Few Clearly Covered by the PL Law

The first feature apparent from the data made available from the Centers, and often
mentioned in interviews, was that the Centers have been quite active, dealing with
between 1000 and 2000 inquiries per year. All the Centers are situated in metropolitan
Tokyo, sometimes in out of the way neighbourhoods, so almost of all enquiries are dealt
with over the telephone—almost all offer a free dial service. Considering that so far all
are open only on weekdays and many individual inquiries can require follow-up, this
keeps the Centers quite busy. Although almost all services are free, this level of activity
may surprise skeptics, since whether and to what extent to use the Centers is a voluntary
decision.
An important related aspect, however, is that only a tiny minority of these inquiries
relate to product liability cases in the strict sense: involving damage to other property or
personal injury caused by a defective product. Another small proportion relate instead
to damage only to the defective product itself (excluded by the proviso to art. 3 of the
PL Law), or otherwise not covered by the new legislation, particularly where a service
provided is involved (art. 2). The large majority of inquiries, however, are just that:
general inquiries about the PL Law itself or safety standards from consumers and
businesses, requests for general information (e.g. from researchers like ourselves!), and
so on.
For instance, in its first full fiscal year of operation (April 1996-March 1997) since
opening in June 1995, the Daily Necessities (Seikatsu Yohin) PL Center dealt with only
23 cases involving “accidents” within the scope of the PL Law, representing 3.1% of all
inquiries received; 68 cases involving “product claims” not covered (8.1%); and 744
cases of “general discussion and inquiries” (88.7%). In fiscal 1997, this tendency
became even more pronounced: 11 (1.5%), 39 (5.2%), and 693 cases (93.3%) respec-
80 See Nihon Bengoshi Rengokai Shohisha Mondai Taisaku Iinkai, ed., SEIZOBUTSU SEKININ
HO O UKASU TAME NI–HIGAI NO BOSHI, KYUSAI TO ANZEN JOHO NO KOKAI–SHIRYO HEN
[TO GIVE LIFE TO THE PL LAW: AVOIDING AND COMPENSATING FOR HARM, AND MAKING
PUBLIC SAFETY INFORMATION–REFERENCE MATERIAL VOLUME] 120-180 (1995) (reporting
on 10 Centers) [hereinafter cited as Nichibenren, ed.]. See also Toshihiro Mitsui & Hideo
Aizawa, Product Liability in Japan, [February 1998] INT’L BUS. LAWYER 59 (1998), at 62,
68. For a list of the PL ADR Centers, with further background details, see
<http://www.law.kyushu-u.ac.jp/~luke/pladrlist.html>.
tively.81 For the Consumer Life Products (Shohi Seikatsu Yo Seihin) PL Center,82
dealing mainly with products in the SG Mark optional insurance system run by the
industry association in question (Seihin Anzen Kyokai), the corresponding figures for
fiscal 1996 were 16 (1.6%), 22 (2.2%), and 962 (96.2%). The Gas and Petroleum
Appliances PL Center, inaugurated in January 1995, recorded cases for fiscal 1997 as
follows: (a) “accident claims” 41 (out of 2338 = 1.7%), (b) “quality claims” 56 (2.4%),
(c) “general advice” 863 (36.9%), and (d) “inquiries” 1378 (58.9%). Like this Center,
most Centers have recorded a steady increase in the absolute number of cases dealt
with, yet only a still very small percentage of cases clearly covered by the PL Law.
Most expect this to slowly increase in absolute terms and in particular in relative terms,
as the number of general inquiries decreases along with growing familiarity with the PL
Law itself.
The way in which Centers categorise cases, however, can be somewhat misleading.
Responding to some critiques, the Daily Necessities PL Center has recently clarified the
basis of their categorisation. In particular, “quality complaints” include not only cases
where damage has occurred solely to the product itself, with no consequential damage,
hence outside the scope of the PL law (article 3). They are also defined as including
cases of damage (including consequential damage) “thought to be due solely to misuse
or negligent use” or where “the cause is unclear”.83 As the former sub-category shows,
in particular, this means that the Center exercises a value judgment in deciding whether
to categorise a case as an “accident” claim under the PL Law or not. This may be a
problem in the light of their comment recently that many disputes arise because
claimants “have no knowledge of the ways in which the product is used”:84 they may be
passing judgment on the basis of their own, unrepresentative experience. Skeptics may
indeed interpret this as an indication of industry and/or bureaucratic informalism
designed to suppress valid consumer complaints altogether. However the fact that it the
comment is made published makes some such deliberate strategy, at least, less likely.
Further, even if there is such a strategy, or at least some prima facie psychological
barriers on the part of staff in this Center which are revealed by this sort of comment,
we must examine how extensive they are, the extent to which they are then mobilised to
actually prevent consumers from obtaining something of valuable from their interaction
with the Center, and the degree to which the latter can nonetheless override or sidetrack
all this. From this perspective, developed more fully as we turn to the broader needs
which consumers bring to the Gas and Petroleum Appliances PL Center, in particular,
81 See Seikatsuyohin PL Senta, ed., HEISEI 9-NENDO SEIKATSU YOHIN PL CENTER JIGYO
HOKOKUSHO [DAILY NECESSITIES PL CENTER REPORT OF ACTIVITIES FOR FISCAL 1997]
(1998).
82 See Naoaki Deguchi, Shohi Seikatsu Yo Seihin PL Center ni Tsuite [On the PL Consumer
Life Products PL Center], 108 HO NO SHIHAI 15 (1998)
83 Seikatsuyohin PL Senta, ed., supra note 81, at 2.
84 Id.
a second reason advanced by Daily Necessities PL Center staff, to explain why disputes
arise, is of interest: “people may want to obtain some emotional security through
finding the cause elsewhere rather than criticising themselves”.85 While this in itself
may again not convince skeptics, sensibility to this factor may be easier to interpret as
having a positive side. More generally, we and others86 have been impressed by the
genuine attempts of the “veterans” in this Center to assist consumers in raising and
resolving problems with the products it deals with.
Similarly, some cases categorised by the Gas and Petroleum Appliances PL Center
under category (b) or category (c) supra are arguably PL Law cases, but have not been
categorised under category (a). Although not spelled out, perhaps this is because they
involve low value damage,87 or the claim seem spurious from the outset,88 or some
investigations reveal that liability will not arise under the PL Law.89 A court, of course,
might disagree with such assessments. Thus, if we are interested in how many accidents
giving rise to potential PL Law claims are being dealt with by these and other Centers,
we may have to look beyond claims listed by them as “accidents”, and include at least
some of those listed instead as “quality” claims. Even so, the combined total may still
seem low, both in absolute and relative terms.
Again, however, we can take the analysis further. Some cases listed under (c) may in
fact have involved an accident, but the inquiries are framed in general terms.90 More-
over, cases listed under categories (b), (c), and even sometimes (d), can involve general
enquiries (e.g. as to how long the usable life is of for the product in question), but these
quite frequently are precipitated by particular problems with the product. These may, or
more often may not, amount to a defect under the PL Law at the stage of the initial or
even a subsequent inquiry. But the risk of accidents may often then have been identi-
fied, while the Gas and Petroleum Appliance PL Center’s responses help to prevent
them arising. At that stage, claims under the PL may also be much more probable, and
85 Id.
86 Even, e.g., Nichibenren, ed., supra note 80, at 80-81.
87 See, e.g., 97/11-B.1 (old cooker, burned rice), 98/2-C.1 (gas grill sensor failed, frypan
deformed). “97/11-B.1” refers to the first case reported under category (b) in the Gas and
Petroleum Appliances PL Center newsletter for the month of November 1997; cases
mentioned below are coded similarly. All these newsletters are available from or through us
on request; or directly from the Center, c/o Gasu Sekiyu Kiki Kaikan, Kandatacho 2-11,
Chiyoda-ku, Tokyo 101.
88 See, e.g., 98/2-C.2 (neighbour’s bathtub alleged to be emitting low frequency sounds
affecting claimant’s health).
89 See, e.g., 98/2-C.6 (user misuse = no causation, or at least comparative negligence: portable
grill left in front of kerosene heater, grill gas cylinder exploded).
90 See, e.g., 94/4-C.1 (company asking for information about cases of accidents involving gas
appliances arising from using wrong gas type and how to respond to this, especially the
basic concepts and standards for paying solatia [presumably this is with a view to settlement
of an actual accident, rather than just e.g. adding appropriate warnings to future products in
the light of possible risks as indicated by Center information]).
perhaps more likely to succeed. Other Centers we visited also found much of their
work, and their raison d’etre, to consist of such accident prevention activities.
Many cases dealt with by the Gas and Petroleum Appliance PL Center, furthermore,
involve claims of arguably defective services provided, not covered by the PL Law.
Such services include (i) installation;91 (ii) servicing;92 and (iii) repair.93 Most obvious-
ly in the case of repairs, but also in some cases of servicing, these cases could stem
from defects in the product which might give rise to PL Law claims. Until the Center
has investigated, it cannot be sure. But anyway, like other PL Centers, it sees its role as
providing a forum for consumers to air their complaints and raise questions even in
cases where the only issue is the quality of the service provided, not the product itself.
Even where this is apparent, the Center continues to provide information to consumers
and/or mediate between consumers and manufacturers. They become aware of service
providers as another potential source of liability, but more generally as participants in
an overall dispute resolution process. Thus, as well as active consumer consciousness in
a PL context, we begin to sense this in the broader context of consumer services. That is
important in Japan today, since complaints have been increasing.94 That trend has led to
proposals to enact legislation regulating both certain contract terms, drawing on the
E.C. Directive on Unfair Terms in Consumer Contracts (93/13/ECC of April 5, 1993),
and the process leading up to conclusion of consumer contracts.95 To parallel possible
changes in the substantive law, a range of possible consumer contract dispute resolution
procedures—in and out of “court”—is being investigated,96 more systematically than
91 See, e.g., 98/3-B.6, 98/4-B.2 (new gas water heater and bath unit installed; claim for dis-
coloured water; possibly water pipe problem), 98/4-B.3 (gas leak when rebuilding carport;
told natural gas leak from pipes but possibly the result of carport rebuilding, gas bathtub unit
checked and ok).
92 See, e.g., 98/3-B.3 (Aco gas air conditioner, serviceman said “these often leak CO2”
mistakenly thinking it was one of Bco’s), 98/4-B.1 (7-year-old gas water heater checked,
woman told “lots of CO emitted and poor burning, you should change it”; while former was
true, visit was not check-up but instead “general business service” including sales pro-
motion!).
93 See, e.g., 97/12-B.1 (pilot lamp on gas water heater cleaned), 98/3-B.5 (7 servicemen
responded to reported gas grill leak, no explanation to woman living on her own), 98/4-B.4
(gas water heater cleaned after “water dirty”, then cleaned again, total Yen 60,000).
94 Veronica Taylor, Consumer Contract Governance in a Deregulating Japan, 27 VICTORIA
U. WELLINGTON L. REV. 99 (1997).
95 See INTERIM REPORT BY THE CONSUMER POLICY COMMITTEE OF THE SOCIAL POLICY
COUNCIL (SUMMARY) (Economic Planning Agency, ed., January 1998); Tsuneo Matsumoto,
“The Development and Future Challenges of Self-Regulation in Japan, with Special Regard
to Electronic Commerce” (Paper presented at the 25th Anniversary Conference of the
Advertising Standards Authority of New Zealand, April 1998).
96 See Keikicho, Shohisha Torihiki o Meguru Funso Shori Kaiketsu no Chosa Kekka o Happyo
[EPA Publishes Results of Study into Resolving Disputes involving Consumer Trans-
actions], 641 N.B.L. 4 (1998).
for PL in the early 1990s. The role of industry associations in resolving consumer
service problems, then, may continue to expand.
Another way in which PL Centers play an expanded role is by bringing retailers into
the dispute resolution process. Retailers are only liable under the PL Law in limited
circumstances (see art. 2(3)). But, as is often also the case in other jurisdictions with
special PL legislation, they can still be liable under other legislation. PL Centers some-
times actively advance the possibility of retailer liability.97 From other records, such as
general requests for information on how many accidents occur with a particular
product,98 and from our interviews, we sense that the Center’s role is often more
restricted, but still provides important information which consumers use, often in
conjunction with information from other sources (e.g. CLCs), to pursue claims against
retailers. Of course, retailers who pay out under such claims can initiate a chain of
claims leading back to the manufacturers, so it makes some sense for industry associa-
tions (almost completely associations of manufacturers, not retailers or intermediaries)
to get involved in interactions between consumers and retailers. But the chain may often
be broken, e.g. by exemption or limitation clauses protecting manufacturers or their
greater commercial clout.99 Rather than just by immediate industry/manufacturer self-
interest, then, the Centers’ involvement appears driven more by a genuine concern for
access to justice, although the overall image for the product (including the distribution
process – like the servicing process) is probably also an important influence.
2. Often More Inquiries from Businesses and Public Bodies, Not “Consumers”
A second feature that stands out from published data for most Centers is that many
inquiries are from “businesses” and “public bodies”, rather than “consumers”. Excep-
tionally, the Automobile PL Advice Center received 68.8% of enquiries in 1996 from
consumers, with only 8.8% from businesses. More representative is the Daily Neces-
sities PL Center, with only 31% of inquiries recorded as from consumers; 40% came
from businesses, and 22% from public bodies. In 1997, the Gas Appliances PL Center
recorded the following proportions: 28%, compared to 24% and 34%, respectively. The
differing proportions of business enquiries probably reflect differences in industry
structure. The Auto Center was established by a donation from an industry association
consisting only of Japan’s 13 major auto manufacturers, each of which has Legal and
97 See, e.g., 98/2-A.3 & Comment (singer used together Aco portable cooker and Bco gas
cylinder bought from same shop; latter’s possible liability being investigated by Center’s
lawyer).
98 See, e.g., 97/9-D.6.
99 See generally Akio Morishima, Product Liability and Contract Between Corporations: The
Japanese Situation, in JAPANESE AND DUTCH LAWS COMPARED 169, at 177-178 (The
Organizing Committee of the Symposium, ed., 1992).
Technical Departments priding themselves on their knowledge of the law (including the
PL Law) and relevant technological issues. The Daily Necessities PL Center deals
everyday household use products, typically manufactured by much smaller companies,
which may not even have any legally qualified personnel, and may merely be licensing
technology or otherwise have a quite weak technological base. The Gas and Petroleum
Appliances PL Center lies in between, with some large manufacturers (gas utility
companies, with departments or subsidiaries producing gas appliances for retail and
industrial use) but also some smaller manufacturers.
Before concluding from the generally high proportion of business and public body
inquiries, however, that the Centers are primarily there for the benefit of businesses
themselves and/or the government bureaucracy, the published data must be analysed
more carefully. From the Gas and Petroleum Appliance PL Center data, for instance, it
seems on the one hand that some of the cases recorded as from “consumers” are in fact
raised by “businesses”.100 As mentioned in Part I, the PL Law does allow claims for
consequential damage to “business” property, so arguably these can be characterised as
involving “consumers”, in a broad sense consistent with the PL Law. But then one
should perhaps distinguish between “business consumers” and “individual consumers”.
We suspect that such instances of miscategorisation may arise because the claimant in
the case, even if a business, is in a relatively weaker position vis-à-vis the manufacturer,
similar to an individual consumer. Again, this may be consistent with a possible under-
lying reason for the expanded scope of damages claimable under the PL Law. But if this
is so, this should be disclosed more clearly in the published data. Clear instances of
such miscategorisation do seem quite rare even now, however.
On the other hand, at least some cases raised by a “business” arise in the context of
an actual dispute.101 If left to fester, there is a good chance that harmed “consumers” in
such cases will eventually bring a claim to the Center anyway, provided consumers
know that the Center actively gets involved in an open and fair manner. Under such
circumstances, it becomes wrong to conclude simply from the proportion of cases
recorded as (initially) brought by “businesses” that consumers are marginalised.
Skeptics may question that realism of the assumptions as to information about, and fair
operation of, PL Centers. But emerging evidence of results favourable to consumers
even recorded as brought by “businesses”, at least at the Gas and Petroleum Appliances
PL Center,102 suggests that such blanket criticism would be misplaced.
One reason why the assumptions seem more probable, and such results can emerge,
is precisely the involvement of other public bodies, particularly CLCs. They are actively
100 See, e.g., 97/9-A.2 (“industrial-use” gas dryer fire, damaged a rest home and harmed two
employees).
101 See, e.g., 97/11-A.2, 98/4-C.3 (probably).
102 See, e.g., the resolution of the former case, id. (97/11-A.2).
informing consumers of relevant industry based PL Centers, and often approach the
Centers with particular disputes on behalf of the person concerned.103 In fact, CLCs’
strong advocacy in particular cases may explain some instances of rather arguable
categorisation, where e.g. the Gas and Petroleum Appliances PL Center has recorded a
case as coming from a “consumer” despite mentioning “strong CLC urging” (which
suggests that it should or could have been categorised as a “government” initiated
inquiry).104 More generally, there is considerable synergy between CLCs, which have
advisors familiar with how disputes typically emerge and how best to resolve them,
quite familiar with legal principles (or with or offering preferential access to expert
advice), but often less familiar with technological issues—a major strength of the
industry based PL Centers. Of course, there is a risk that this becomes just one-way
traffic, with CLCs getting information but “losing” complainants to PL Centers.
However the CLCs can themselves begin to build up industry- specific knowledge, and
the fact that they introduced complainants or forwarded requests to PL Centers is
almost invariably recorded (with manic Japanese bureaucratic efficiency) and so can be
followed up.105 Thus, similar to the way MITI seems to have developed its ideas on
how to encourage the development of PL Centers “in the shadow” of the EPA and
possibly other public bodies (like the Construction Ministry), the PL Centers must
operate “in the shadow” of the CLCs and other public bodies.
Yet, for this to occur in fact and this synergy not to turn into self-seeking supra-
bureaucratic informalism, consumers must be active participants in the process. We
think they are indeed fulfilling this role, in the ways they seek information,106 and
pursue possible liability of service providers and retailers,107 as well as claiming in
recorded “accident” cases clearly covered by the PL Law and possibly some “quality”
claims (supra Part II.1.). Involving CLCs,108 often at different stages in the life (and
rebirth) of a dispute,109 can be seen as another aspect of this. While some may interpret
claimants’ approaches to agencies like CLCs for information, and as advocates, as a
good example of “Confucian” deference to a superior (the government), this also can be
103 See, e.g., 98/2-A.4 (gas oven, “burn” marks on floor).

104 See, e.g., 97/9-B.2 (gas oven installation problem, dispute “resolved” in April 1997, but now
re-emerging since victim claims a resultant ongoing “sensitivity to chemicals syndrome”; see
also Comment (para 2) of 97/9 Center newsletter).
105 Especially when disputes “re-surface”, as in supra note 104 (97/9-B.2).
106 See, e.g., 98/4-B.4 (dropped portable gas grill because scalded hand when trying to remove
canister; queries about recalls, etc.).
107 See also 98/3-A.1 (gas burner about to explode, burned hand; claimed inadequate
instructions from shop).
108 See, e.g., 98/4-C.1 (petroleum heater reignited after switch being turned off, first checked
with CLC what accidents/complaints there had been e.g. with respect to poor quality
petroleum).
109 Like supra note 104 (97/9-B.2).
appraised more positively as active—if not necessarily always “rational”—use of all

available resources in a protracted negotiation game.110
3. Very Few Formal Mediation Cases; Much More Direct Negotiation

(and Informal Mediation)
Adopting the latter interpretation casts new light on a third feature of all PL Centers’
operations so far. Very few number of cases have actually moved to the stage of formal
mediation procedures (various termed chotei, assen, saitei), involving some or all of a
pre-selected panel of experts (lawyers, scholars, engineers, etc..). In 1996, the Auto-
mobile PL Advice Center had only six cases which proceeded to that stage, of which
four settled. Most other Centers had fewer, constituting an even lower proportion of
cases dealt with. Instead, the vast majority of cases are resolved by less formal negotia-
tions between consumers and manufacturers. A first step is often to help the claimant
identify the manufacturer of the product in question. At this or some later stage, the
Centers may also provide some information in response to requests, or venture some of
its own and/or some advice. All, however, see the preferred goal as consumers resolving
their disputes to their satisfaction in negotiations with manufacturers, and this process is
the most common. The Automobile PL Advice Center, for instance, received 348 com-
plaints in 1996, and reports 323 as having been resolved satisfactorily by negotiations
between complainants and the manufacturers.
Here too, however, it is important to look more closely at the various roles which PL
Centers do or can play both in advancing negotiations through providing information,
and in more actively mediating between the parties, albeit informally i.e. outside the
abovementioned mediation procedures.111 From Gas and Petroleum Appliance PL
Center cases, it is apparent that its role can be extensive, but also vary considerably. In
some cases,112 the Center may respond to a request for information,113 and then pursue
negotiations with the manufacturer – almost as advocate for the consumer.114 In other
cases, it may still pursue negotiations with the manufacturer, but seeking some tempo-
rary solution.115 This can allow both parties to reassess options, sometimes still assisted
by the Center, for instance meeting with the claimant to investigate the possibility of
claiming under its fire insurance policy.116 In yet other cases, the Center may limit
110 For other instances of this, see, e.g., Tanase, supra note 28, at 661-665.
111 See also Seikatsu Yohin PL Senta, ed., supra note 112 at 2.
112 See, e.g., 97/9-A.1 (outdoor gas grill leaked [on three occasions!] when changing canister).
113 In this case (id.), prompted more by manufacturer misinformation after the complaint: see
para. 1 of Comment in 97/7 Newsletter.
114 Often, as in this case (id.), seemingly having formed a view as to the consumer’s right to
obtain redress.
115 See, e.g., 97/9-A.2 (rest home drier fire, got new drier installed).
116 As in this case (id.).
itself to supplying information, but make it clear to one or both sides that it is prepared
to become actively involved in mediating the case if called upon. As a result of these
various approaches, informal settlements of “accident” claims,117 and even “quality”
claims are quite frequent,118 particularly when insurance is involved119 or the claimant
is also in business.120 As such settlements are publicised, particularly among industry
association members, and the Center’s reputation as a vigilant and diligent participant—
actual or potential—in claim settlement, negotiations begin to be conducted in its
shadow as well. As mentioned above, consumers in Japan seem to be motivated to
undertake such negotiations, and pursue them intelligently.
Another salient aspect of dispute resolution involving PL claims suggests the appro-
priateness of this palette of more informal mediation possibilities, along with supply of
information, to advance negotiations between the parties. Monetary compensation is
clearly an important factor.121 But many claimants quite clearly want more.122
First, they seek information, partly to help pursue their claims, but partly because
they think they are entitled to know. This is particularly important in cases where a
service has also been properly supplied. The claim is often that the service was too
expensive, especially when the product has broken down again subsequently;123 but a
parallel or latent concern is that the product itself may be unrepairable and unsafe (see
also II.1. supra). Either sense of being wronged by is exacerbated when insufficient
information is forthcoming. It lies at the root of many recorded disputes, and is one
form of redress sought.124
Secondly, claimants often are motivated by a concern that the accident they have
suffered, or the problem they have with their product which they think might lead to an
accident, does not happen to others as well. So some strongly urge the supplier of the
product to stop carrying that product line.125 This sense of responsibility for others is
strong among those involved in local communities, like the president of an apartment
117 See, e.g., 98/4-C.1 (possibly).

118 See, e.g., 98/2-B.2; 98/2-B.3 (carport rebuilder and claimant split costs of repairing old gas
pipes).
119 Cf., e.g., 98/3-A.2 (used portable grill, caught fire after put away, burned down half of small
house rented for work, not yet insured).
120 See, e.g., 98/2-A.7 (industrial fryer unit, safety cut-off feature not put “on” but anyway
powered by dry cell batteries in contravention of JIS standards, settlement by replacing with
another company’s fryer unit but no payment of consequential damages).
121 See, e.g., 97/12-A.2 (kerosene leaked into bathtub's water pipe, killing carp [perhaps for
resale?], U.S.$0.25m claimed).
122 See, e.g., 98/3-B.6 (new gas oven installed, drilling hole for pipe without explanation,
resulting in 10cm crack; after CLC intervened, claimant offered full repair, special discounts
and solatium; but has refused).
123 See, e.g., 98/1.B-1, 98/4.B-4 (respectively, supra notes 93, 106).
124 See, e.g., 98/3-B.1, 3, 5, 6 (see also Comment to 98/3 Newsletter).
125 See, e.g., 98/3-A.1 (gas burner, was about to explode so thrown out the window, burning
hand).
block association.126 In a similar vein, we were told in interviews at a number of

Centers about cases being brought by mothers on the part of their grown children!
Sometimes claimants are motivated by personal pride, almost arrogance, like the
former university professor (with a Ph.D. in engineering) who disputed a bill for
U.S.$30 for checking and cleaning a pilot lamp on his 3-4 year old gas water heater.127
In this case, the dispute was probably brought about by poor personal skills or a lack of
convincing explanation when the servicing was carried out, but it may also have been
exacerbated by a lack of courtesy when he first made his claim. Lack of sincerity (sei-i)
appears often in records of claims brought.128 These more inchoate senses of being
wronged bring with them requests for apologies.129
The comparative importance of apology in Japan has been noted by others.130 But
we think that this, and the other abovementioned features of PL claims, will find
resonance with empirical studies elsewhere as to what really drives claimants invoking
tort law.131 It is important to stress that apology without more tangible compensation
will almost never be enough in Japan:132 that will lack “sincerity”. An example is the
konnyaku jelly case settlement mentioned at the outset (Part I), where both “profound
apology” and Yen 50m in damages were agreed on, whereas the company’s conduct,
following a director’s visit to the hospital when the child was still alive, was felt to have
been “insincere”.133 Yet such calls for moral vindication—along with other factors like
a proper hearing, a sense that the dispute is not just about one individual but involves a
network of others (other clients, local communities), prompt supply of relevant infor-
mation, and so on—make disputes more amenable to a range of more informal as well
as more formal processes. This we see emerging in valuable forms in PL Center dispute
resolution, particularly in the Gas and Petroleum Appliance PL Center.
126 See, e.g., 97/9-B.3 (many instances of bathtub heating breaking down, conducted survey,
requested information from Center).
127 See 97/12-B.1.
128 See, e.g., 98/2-A.6 (portable grill burned tablecloth etc (minimal amount?), but disturbed
“lack of sincerity” of initial response from manufacturer, asking “didn’t you put too heavy a
pot on the grill?”).
129 See, e.g., 98/3.A-1 (gas burner thrown out of window), 98/2.A.3 (singer shocked by
grill/canister catching fire, claiming solatium [meiwaku-kin] for “bothering her landlord”
[see Comment in para. 2 of 98/2 Newsletter] as well as for her own shock).
130 Hiroshi Wagatsuma & Arthur Rosett, The Implications of Apology: Law and Culture in
Japan and the United States, 20 L. & SOC’Y. REV. 461 (1986).
131 Cf. also David Engel, The Oven Bird’s Song: Insiders, Outsiders, and Personal Injuries in
an American Community, 18 L. & SOC’Y. REV. 551 (1984) (showing how claims, especially
to courts, were made more by newcomers or outsiders to a community, and resisted or
stigmatised by incumbent community members).
132 See also Tsuneo Matsumoto, Comment in “Synthesis and Prospects: Concluding Remarks
by Participants” 15 U. HAW. L. REV. 764, 774-775 (1993).
133 Sato, supra note 1.
4. An Interim Appraisal
One of the premises supporting the establishment of PL ADR institutions, including
industry-based schemes, was that various structural barriers to litigation would prevent
valid claims being brought through the formal court system, so more accessible means
of dispute resolution would need to be made available in more informal forums.134 At
least to those wedded to formal dispute resolution processes and classical (or neo-
classical) liberal rights discourse as ideals, even—or perhaps especially—in Japan,134a
at least the more formal mediation procedures provided by the PL Centers may seem
preferable. For them, the limited number of cases so far under these procedures, then,
signal the failure of these institutions. Our interviews and close analysis of the growing
amount of data from at least some of the Centers, however, suggest how these institu-
tions and the various actors involved in their activities are evolving. They are develop-
ing new roles,135 creating a rich mosaic of sometimes quite unexpected interactions
which renders problematic a prioritisation of more formal procedures or a simple
“input-output” calculus for appraising these institutions.136 In particular, we discover
consumers actively engaging a range of actors and legal as well as social norms, in a
variety of forums substantially of their own choosing. In these circumstances, the
“remote control” function of PL ADR Centers in helping consumers and other actors,
such as businesses and CLCs, to negotiate and renegotiate solutions or processes,
among themselves, seems a sensible way forward.137
More theoretically, such intermediate forums seem to be a feature of complex
industrialised societies today, which is increasingly a focus of attention of legal
theorists and policy-makers. They offer institutional frameworks to help mediate the
tension between the factual and the normative, identified by Habermas and still being
developed by others,138 or at least provide functional mechanisms for effective “system
coupling” between individual, consumer associations, business organisations, and the
134 NIRA, ed., supra note 64.

134a Adopting this perspective, see, e.g., Setsuo Miyazawa, For the Liberal Transformation of
Japanese Legal Culture: A Review of the Recent Scholarship and Practice, 6 ZJAPANR 101
(1997), especially at 104-8.
135 As the Daily Necessities PL Center is well aware: see Seikatsu Yohin PL Senta, ed., supra
note 81, at 2.
136 For more theoretical criticism of these tendencies, see Wada, supra note 30.
137 Cf. Ji Weidong, On Reflexive Mechanism of Law Trial Implementation in China, in WEGE
ZUM JAPANISCHEN RECHT: FESTSCHRIFT KITAGAWA 753 (Hans Leser & Tamotsu Isomura,
eds.,1992); Ji Weidong, The Chinese Experience: A Great Treasure-House for the
Sociology of Law, in SOCIOLOGY OF LAW IN NON-WESTERN COUNTRIES, 15, 17 (Masaji
Chiba, ed., 1993).
138 Jürgen Habermas, BETWEEN FACTS AND NORMS (trans. Rehg,1996). Cf. Takao Tanase,
Fuhokoi Sekinin no Dotokuteki Kiso [The Moral Foundations of Tort Liability], in GENDAI
NO FUHOKOIHO–HO NO RINEN TO SEIKATSU SEKAI [CONTEMPORARY TORT LAW: THE IDEAL
OF LAW AND THE LIFEWORLD] (Takao Tanase, ed., 1992).
legal system.139 An important specific aspect of this, deserving more study, is how the
discourse about product “defects” often seems to be transformed by PL Center inquiry
and dispute resolution processes into a new and possibly more abstract level of
discourse, about product “safety”. In legal norm setting, such as E.C. rules as to product
safety,140 a similar trend seems to be quietly gaining momentum. Industry-based PL
Centers may prove an important part of this, not only in Japan but also in Europe and
the U.S., where the interface between private and public law norms (product liability
law and administrative regulation) seems particularly “uncoupled”.141 Such transfor-
mation processes have been highlighted as an important feature to be nurtured in
contemporary socio-legal systems, particularly on the borderline between law and
technology.142
Nonetheless, from our analysis so far, we have also begun to identify some existing
or potential problems in operationalising such processes in the context of Japan’s
industry-based PL ADR Centers, which we put forward here for further debate as well.
Firstly, and perhaps least controversially no matter what one’s theoretical perspective
and approach to the the existing data, it seems quite clear from the above discussion that
Centers should break down more information, more carefully. This should better expose
the complex interactions we have glimpsed arising among manufacturers, service
providers, retailers, PL Centers, consumers, and a range of public bodies.
All such information should be publically disclosed. This is in line with legislative
initiatives with respect to official information.143 Those initiatives, along with con-
tinued pressure from consumer interests reinforced by enactment of the PL Law, no
139 Cf. Gunther Teubner, Autopoiesis and Steering: How Politics Profit from the Normative
Surplus of Capital, in AUTOPOIESIS AND CONFIGURATION THEORY: NEW APPROACHES TO
SOCIETAL STEERING 127 (Roeland in ‘t Veld et. al, eds., 1993); see also Gunther Teubner,
Altera pars Audiatur: Law in the Collision of Discourses, in LAW, SOCIETY AND ECONOMY
149 (Richard Rawlings, ed., 1997).
140 See, e.g., Hans-Wolfgang Micklitz, Product Liability and Product Safety–Standardisation
and Certification: The European Challenge, TEXAS INT’L. L.J. (forthcoming 1998; Paper
presented at the Symposium on “Products Liability: Comparative Approaches and
Transnational Litigation”, February 19-20, 1998, University of Texas).
141 See, e.g., Timothy Zick, Reporting Substantial Product Safety Hazards Under the
Consumer Product Safety Act: The Products Liability Interface, 80 GEO. L.J. 387 (1991);
Frances Zollers & David Barry, A Regulation in Search of a Rationale: An Empirical Study
of Consumer Product Safety Act Section 6(b) and its Effect on Information Disclosure
under the Freedom of Information Act, 43 ADMIN. L. REV. 455 (1991).
142 See, e.g., Karl-Heinz Ladeur, Post-Modern Constitutional Theory: A Prospect for the Self-
Organising Society, 60 M.L.R. 691 (1997); Karl-Heinz Ladeur, The Integration of Scientific
and Technological Expertise into the Process of Standard-Setting According to German
Law, in INTEGRATING SCIENTIFIC EXPERTISE INTO REGULATORY DECISION-MAKING 77
(Christian Joerges et al., eds., 1997).
143 Lawrence Repeta & Jody Chafee, Japanese Government Information: New Rules for
Access–The Proposed Information Disclosure Law: Status and U.S. FOIA Comparison
(Japan Information Access Project Special Report, March 1998).
doubt underpinned MITI’s decision to disclose company names etc. in some cases
(256 out of 1017) beginning with its September 1997 Accident Report, which will also
henceforth be published three times rather than once annually.144 A related factor
pushing towards better disclosure is expanded discovery and interrogatory procedures
under the amendments to the Code of Civil Procedure. These influences have already
been expressly noted by some PL Centers,145 or were mentioned in interviews and
when making information available to us. As is often so in Japan, as long as a critical
mass develops, information disclosure should therefore improve. However, information
should not be collated for the benefit primarily of industry association members. We
stress that this does not necessarily mean that Centers are doing this; on the contrary,
we have no evidence indicating they are discriminating by supplier more limited
information to non-industry parties. But it is clear that much information disclosure
remains too limited; the Gas and Petroleum Appliance PL Center approach, refined in
the light of preceding comments, should form a minimum benchmark.
In addition, however, there should be more attempt at follow-up to gauge how
consumers experience their interactions with PL Centers. Random surveys of those who
initially made contact should be undertaken, as the Gas and Petroleum Appliance PL
Center has just started to do.146 We are hoping to get involved in this and other survey
research, but especially also in follow-up interviews—here we should reiterate that we
have heard only half (or maybe two-thirds) of the story, and still need to hear more
directly the voices of claimants.
Secondly, the Centers’ role in trying to advance negotiations between the parties
themselves, largely by “remote control” through advice over the telephone, needs to be
reconsidered. Particularly in claims involving more “moral” issues, face-to-face inter-
action may be more effective even than free(-dial) telephone counselling and advice. It
is important for dispute resolution agencies, particularly one with multi-faceted roles
like PL Centers, to show a human face. In this sense, developing the ability to respond
to questions through the internet—while a useful next step not yet taken, unlike e.g. in
the BBB Auto-line scheme in the U.S.147—will not be enough. One option is to
establish branches in major cities outside Tokyo, e.g. Osaka. Demarcation lines between
various industry associations have spawned perhaps too many different Centers. While
they may not be prepared to merge now that they are established in Tokyo, perhaps they
could join forces to set up branches together elsewhere. They should compare
geographical dispersion of their claimants, and the nature of such claims. The Gas
144 CHUNICHI SHIMBUN, November 5, 1997.

145 See, e.g., Seikatsu Yohin PL Senta, ed., supra note 81, at p1)
146 See 94/4 Newsletter.
147 See <http://www.bbb.org/complaints/BBBautoline.html>. On the BBB, see briefly E. John-
son, Jr., et al., Access To Justice in the United States: The Economic Barriers and Some
Promising Solutions, in 2 ACCESS TO JUSTICE 913, 973 (Mauro Cappelletti & Bryant Garth,
eds., 1978).
Appliance PL Center, which finds itself increasingly stretched when it gets a cluster of
accident claims from different parts of the country over a short period,148 could join
with the Home Electronics PL Center, for instance. This would also make it easier for
consumers to take an important step in resolving their disputes, namely sending the
alleged defective product to the Center—for gas appliances, this can be expensive
unless one is based near Tokyo.149
Thirdly, the Centers should develop structures to better insulate the financial and
personnel resources required to run the Centers. Examples of this are Banking
Ombudsman schemes run by bankers’ associations overseas, like in New Zealand.150
We have been impressed by the genuine dedication on the part of those involved in the
PL Centers, to resolving disputes in a balanced and sympathetic manner. But some
Centers are much better than others. Even for the best ones, there is a potential problem
of perception. However, this may not be the crucial problem that some pro-consumer
interests had perceived.151 To some extent we can rely on MITI or EPA to ensure the
Centers remain reasonably fair, and the marginal improvement from such reform may
turn out to be minimal if we are correct in our view that consumers are often using
Centers as just one more resource among many others in negotiations with manu-
facturers or a range of others to resolve their disputes.
A related, and perhaps more important improvement, is to nonetheless strengthen the
formal mediation procedures offered by the PL Centers. In doing so, however, the aim
should be to complement and promote the more informal processes we already see
emerging, resulting in a more fluid overall system.152 One way to strengthen the more
formal procedures is to transform the mediation procedure into (or add) an arbitration
procedure, with awards binding on the manufacturers only. There is a precedent for this
already in Japan in the occurs—interestingly, de facto ie from informal norms—with
the traffic Traffic Accident Dispute Resolution Center, established initially as a non-
profit body, financed by investment profits by compulsory insurance. Although
decisions rendered in cases before the most formal of its proceedings, before a panel of
independent persons (retired judge, lawyer, and legal academic), are not binding, the
insurance companies almost invariably abide by these decisions. But so do the
individuals, partly because the legal precedents have become so predictable in this area,
that presumably they see no benefit in taking the case to court—they will get the same
148 See 98/3 Newsletter.

149 See, e.g., 98/2-A.8 (sent from nearby Chiba); cf. 98/2-A.2 (not clear if ever in fact sent from
Osaka).
150 See Nadja Tollemache, Taking the Ombudsman Concept into the Private Sector: Notes on
the Banking Ombudsman Scheme in New Zealand, 26 VICTORIA U. WELLINGTON L. REV.
233 (1996).
151 See, e.g., Nichibenren, ed., supra note 80; supra note 63.
152 Wada, supra note 30.
or a similar judgment.153 There is a formal precedent, again in the New Zealand

Banking Ombudsman scheme, although proposals recently to adopt such a scheme for
Japanese banks have so far been met with deafening silence.154
It is also the system in the BBB Auto Line scheme for auto defect disputes, run by
the Better Business Bureau in the U.S., to which all of the main Japanese manufacturers
are party.155 This is ironic since the Automobile PL Advice Center in Japan does not
bind the same companies in its mediation procedure, which is purely voluntary, and
most of the products in question are presumably the same cars! This may indeed reflect
the power of (very) big business in Japan to adopt a double standard, in its own interest,
and the much lower threat value that disgruntled claimants have in Japan compared to
the U.S.—at least in formal court proceedings. On the other hand, it may be that only
the biggest Japanese auto manufacturers are confident enough to stand by their products
in the U.S. under this scheme—and cannot afford negative publicity in not doing so—
whereas the other smaller manufacturers in Japan were less so, and thus preferred the
completely consensual procedure in the Automobile PL Advice Center. But this
example also highlights a potential obstacle to adoption of such a one-sided arbitration
scheme in a PL context in Japan: possible lack of adequate third party institutions able
to objectively determine cause of accidents involving complex products like auto-
mobiles. It may be that the robust use of courts and experts in the U.S. creates more
such expertise, which can be used in the BBB scheme to the satisfaction of manu-
facturers there; but that this has not yet emerged in Japan. This rationale should be
explored, however, and in all relevant industries since it seems much less likely to apply
to some (e.g. “daily necessities” manufacture).
III. CONCLUSIONS AND DIRECTIONS FOR FURTHER RESEARCH

Despite such existing or potential obstacles to developing industry-based PL ADR
institutions which “fit” a complex industrialised society like Japan, both normatively
and functionally, we think such institutions can have an interesting role both in Japan
153 See Tanase, supra note 28, especially at 676-678.

154 See Tsuneo Matsumoto, Kokyaku Manzoku to Ginko Omubuzuman Seido [Client
Satisfaction and the Banking Ombudsman System], 26 GINKO JITSUMU 3 (1996); Tsuneo
Matsumoto, Futsu no Kaisha to shite no Ginko Sabisu [Banking Services as a Normal
Company], 1439 KINYU HOMU JIHO 32 (1996). However, as those even passingly familiar
with the successive scandals and poor economic performance still characterising Japan’s
financial sector will appreciate, it has remained mired in old ways and now faces a daunting
restructuring of the financial system. See generally Luke Nottage, Top Ten Changes and
Continuities in Japanese Law and Society—1997, YEARBOOK 3: 1997, 611 (N.Z. Associa-
tion for Comparative Law, ed., 1998), also uploaded onto Luke Nottage’s website at
<http://www.law.kyushu-u.ac.jp/~luke/topten.html>.
155 Supra note 147.
and further afield. We hope to have indicated how—in their establishment, but
especially in their operations so far—Japan’s PL ADR Centers do not represent mere
bureaucratic informalism, nor even bureaucratic informalism merged with industry
informalism; rather, they include a significant element of consumer informalism. Else-
where we will develop further our arguments and include more comprehensive data
(particularly in Parts I.2., II. and III.), and we hope now to provoke comment and
debate. Already, however, we hope to have suggested a new paradigm—bureaucratic,
industry, and consumer informalism— for analysing civil dispute resolution more
generally in Japan in the late 1990s and beyond, a paradigm which transcends models
often developed in the 1970s and 1980s.
Generally, our tentative analysis in Part I ties into the ongoing debate about
seemingly deep-rooted cross-border differences in regulatory style;156 and, more
specifically, government-business relations in Japan. Ulrike Schaede for instance,
suggests that there remains significant continuity in those very intertwined relations
because of (i) a tradition of elevating pragmatism above principles, and (ii) institutional
arrangements supporting “consultative capitalism” in Japan, such as semi-public think
tanks, “regulatory intermediaries” which look like private firms but which actually
regulate an industry, and the “old boy” (amakudari) system.157 This perspective invites
a closer look at the role of NIRA, for instance, in the process of establishing the PL
ADR Centers,158 and whether the industry associations for each can also be seen as
institutional arrangements of consultative capitalism.159 Yet, as shown by the increas-
ingly vocal critique of amakudari relations and structural corruption (or increasing
perceptions of it), Japan is in considerable flux.160 Underpinned by, and underpinning,
these developments, new principles affecting the Japanese state have been enacted and
are being slowly bedded down.161 As Schaede also points out, from the late 1970s there
was clearly a change from active bureaucratic control towards reactive consultation and
control, as regulatory capacity was challenged by a more internationalised economy and
so on.162 Further changes since the mid-1990s may be creating a new paradigm in state-
business relations. Part of that, furthermore, appears to be the growing role of con-
156 See, e.g., the introductory essay by Robert Kagan to the special issue on regulation, [1998]
L. IN JAPAN.
157 Ulrike Schaede, Change and Continuity in Japanese Regulation, 1 ZJAPANR 21 (1996).
158 Supra, text at note 64.
159 Cf. generally Ohashi, supra note 77.
160 See, e.g., the special issue on these issues in 43/8 HOGAKU SEMINA [August 1998].
161 See, e.g., Lorenz Ködderitzsch, Das neue Verwaltungsverfahrensgesetz in Japan – Versuch
einer ersten Bilanz [The New Administrative Procedure Law in Japan: A First Attempt to
Take Stock ], 2 ZJAPANR 131 (1996); Ken Duck, Now That the Fog Has Lifted—The Impact
of Japan’s Administrative Procedures Law on the Regulation of Industry and Market
Governance, FORDHAM INT’L. L. J. 1686 (1996). See also the new principles being ham-
mered out in the context of official information disclosure: supra note 143.
162 Supra note 157, 21-24. See also supra note 76.
sumers, and consumerism itself.163 This trend appears to be reflected, for instance, in
the increasing workload of CLCs throughout Japan.164 As the opening of Eastern
European markets has shown, consumers can quite quickly learn to look out for them-
selves—albeit often the hard way, sadly; in Japan, too, any pre-conceived image of the
perennially passive consumer therefore needs urgent reinvestigation.165 This process
can be supported by important ongoing reforms in, and re-thinking of, consumer law
itself.166 Such further analyses also promise to contribute to the reassessment of the
role of the individual in contemporary Japanese law and society, although it must also
be recognised that consumers face particular barriers to promoting their interests in the
world of law.
More specifically with respect to the PL Centers, however, there are a number of
interesting areas for further research. The initial motivation of some industry associa-
tions in setting them up, and the way in which they operate them, may vary. Both
aspects may depend on the type of product. For instance, if some are already safe or can
be readily made safer (e.g., because they tend to involve mere manufacturing defects
rather than design defects, which require better corporate policies and judgement calls
rather than isolated failures to otherwise safe products), then the relevant PL Center
may be more balanced in its approach. Along these lines, for instance, Ramseyer
suggests that the existing safety of the products covered by voluntary insurance schemes
help explain why so few claims are brought and paid out on by the industry associations
running such schemes.167 Yet this explanation cannot be the only one in the case of the
PL Centers, which cover a much wider gamut of products. Another determinant may be
the increased extent of harm if a product proves defective, which may also related to the
extent of background direct regulation—hence, perhaps, the Gas and Petroleum
Appliances PL Center may adopt a particularly positive approach. The background
regulatory framework impacting on the product sector in question, moreover, may
create more scope for amakudari. This too must be investigated more closely in the case
163 See, e.g. Luke Nottage, The Still-Birth and Re-Birth of Product Liability in Japan: The
Early 1970s versus the Early 1990s, in ADAPTATION OF LEGAL CULTURES (Johannes Feest
& David Nelken, eds., forthcoming 1999: outline on file with us, and the editors of this
journal).
164 See, e.g., JCIC NEWS (1995-98, various issues), available through <http://www.kokusen.
go.jp/jcic3/e-hello.html>.
165 Cf. Thomas Wilhelmsson, Consumer Images in East and West, in RECHTSEINHEIT ODER
RECHTSVIELFALT IN EUROPA? ROLLE UND FUNKTION DES VERBRAUCHERRECHTS IN DER EG
AND DEN MOE-STAATEN [LEGAL UNITY OR LEGAL DIVERSITY IN EUROPE? THE ROLE AND
FUNCTION OF CONSUMER LAW IN THE EU AND EASTERN EUROPE] 53 (Hans-W. Micklitz,
ed., 1996).
166 Supra notes 94-96. See also the wide-ranging special issue on consumer law in 1139
JURISTO [August, 1998].
167 Cf. Ramseyer, supra note 69. We are also endebted to Setsuo Miyazawa for raising a point
along these lines.
of each Center and its parent association, as well as more generally.168 Yet such analy-
ses should be sensitive to possible conflicting loyalties even for Center officials
previously involved in government bureaucracies, and focus on personal and historical
contingency,169 as well as structural constraints on them such as pressures for trans-
parency from Nichibenren,170 seemingly increasingly active consumer organisations,
the media, and so on. The actual roles of consumer organisations and the media should
also be more closely reviewed as to their involvement when the PL Law was being
enacted, and the Centers established.171 A comparative analysis of the media promises
to be particularly interesting given the key role for it identified by Michael McCann and
others in framing the PL debate in the U.S., and perceptions thereof.172
Their study also highlights the importance of the social construction of knowledge,
and hence teaches us about the need for a reflexive approach in the study of social and
legal phenomena. Although we have concluded by identifying many directions for
future research, we hope at least to have demonstrated the importance of their lessons
also—or perhaps particularly—in comparative studies,173 as well as providing some
important points and an overall framework for ongoing empirical work into the actual
activities of Japan’s new PL ADR Centers.
168 We thank Bryant Garth for this suggestion.

169 See generally Bryant Garth, Culture and Legal Transplants: Notes on the Import and
Export of Law and Legal Institutions, Paper presented at the workshop on “Adaptation of
Legal Cultures [Changing Legal Cultures III]” held at the International Institute for the
Sociology of Law, Oñati, June 25-27, 1998 (on file with us and the editors of this journal).
170 Supra note 80.
171 See generally, e.g., Motoharu Okada, Shinbun wa PL Ho o Do Tsutaeta Ka—Shohisha
Mondai no Hodo o Jujitsu Saseru Tame no Obeogaki [How Did the Newspapers Portray
the PL Law? Notes Towards Deepening the Imparting of Consumer Issues], 1139 JURISTO
137 [1998] (although we should acknowledge his own admission that that analysis was
based on reporting in the Asahi Shimbun, traditionally the least conservative of the main
dailies); and Atsushi Omura, Shohisha Dankai no Katsudo—Seikyo o Chushin ni [The
Activities of Consumer Organisations: Focusing on the Seikyo], 1139 JURISTO 130 [1998].
Although we would accept that consumer activity is particularly well organised in the United
States, and for a long time Japan’s organisations remained very much in the shadow of
regulatory bodies (at least at their highest levels), in broader comparative perspective and in
the light of Omura’s study and other recent developments, it is increasingly unrealistic to
marginalise their role in Japan. What is needed here, ideally, is a careful comparative study
of the scale and sophistication of that undertaken by Cappelletti and others (supra note 147),
for the late 1990s.
172 Michael McCann, William Halton & Judith Aks, Media Framing of Products Liability
Lawsuits and the Social Production of Knowledge, Paper presented at the Annual Meeting
of the Law & Society Association held at Snowmass Village at Aspen Colorodo, June 4-7,
1998 (on file with us and the editors of this journal).
173 For a similar starting-point in a comparative research project into Japanese contract law and
practice, see Luke Nottage, Contract Law and Practice in Japan: An Antipodean Perspec-
tive—Revisited, 31 HIKAKUHO ZASSHI 55 [1998], expanding on and updating his chapter
(seven) in JAPAN: ECONOMIC SUCCESS AND LEGAL SYSTEM 197 (Harald Baum, ed., 1997).
Appendix A: Product Liability Law

(Seizobutsu Sekinin Ho, Law No. 85, 1994 )
Translated by Luke Nottage (© 1998)
Article 1: Purpose
By setting forth the liability of manufacturers etc. for compensatory damages for harm to a
person’s life, health or property due to defects in products, this law aims to protect the harmed
person, and thereby (motte) to contribute to stability and improvement in consumer life (shohi
seikatsu) and to the sound development of the national economy.
Article 2: Definitions
(1) “Product”:
Manufactured or processed movables (dosan).
(2) “Defect”:
The lack of safety a product ought to have, taking into account the nature of the
product, its normally foreseeable manner of use, the time it was delivered, and all
other circumstances relating to the product.
(3) “Manufacturer”:
1. Any person who produces, processes or imports a product as a business.
2. Any person who presents its name, trade name, trademark or other mark
(“presents its name etc. ”) on the product as its manufacturer; or presents its name
etc. on the product so as to create the mistaken impression that it is the manu-
facturer.
3. Any person, other than those listed in paragraphs 2 and 3, who presents its name
etc. on the product and who can be recognised as the manufacturer in fact, consid-
ering the manner in which the product is manufactured, processed, imported or sold
and other circumstances.
Article 3: Product Liability

The manufacturer etc. shall be liable to compensate for damage arising from a defect in a product
which it has delivered and manufactured, processed, imported or presented with its name etc. in
terms of Article 2(3)(2) or 2(3)(3), and which interferes with another’s life, health or property.
Provided, however, that the manufacturer shall not be so liable for damage occurring only to the
product itself.
Article 4: Exemptions
(1) Development Risks
The state of the scientific or technical knowledge (chiken), at the time the mamu-
facturer etc. delivered the product, was such that it was not possible to detect
(ninshiki suru) that the product had a defect.
(2) Component Manufacturing
Where a product is used as a component or raw material (genzairyo) of another
product, the defect has arisen solely (moppara) because of having followed the
other product’s manufacturer’s instructions (shiji) regarding design (settei), and the
manufacturer etc. is not negligent with respect to the defect.
Article 5: Limitations of Time

(1) The right to claim compensatory damages shall be extinguished by prescription
(jiko) if not exercised by the harmed person or the latter’s legal representative
within 3 years of the time such person or representative knew of the harm and the
person liable for the damage. The same shall apply after 10 years has elapsed from
the time of delivery by the manufacturer etc.
(2) Where the harm is caused by a substance which becomes harmful to human
health when it accumulates in the human body, or where the harm shows symptoms
after a certain latency period, the period set forth in the second sentence of
Article 5(1) shall be calculated from the time such harm arises.
Article 6: Application of Civil Code

Unless otherwise provided for in this Law, the Civil Code (Law No. 89, 1896) applies to the
liability of the manufacturer etc. for compensatory damages due to a defect in a product.
Appendix B: Reported Case Filings under the PL Law

(As of June 1998. Thereafter this table will be kept updated at
<http://www.law.kyushu-u.ac.jp/~luke/pllawcases.html>.)
Sources:
* Seikatsuyohin PL Senta, ed., Heisei 9-Nendo Seikatsu Yohin PL Center Jigyo Hokokusho
[Daily Necessities PL Center Report of Activities for Fiscal 1997] (1998).
Koka ga Dete Kita PL Ho [PL Law Having an Effect], CHUNICHI SHIMBUN, November 5, 1997.
Amount Claimed Number of

Nature of Suit (and US$, at Yen 120): Court Date Suit Brought Hearings
Breakdown* so far
(end ‘97)*
1. Restaurant Yen 910,000 ($7583):

owner cut finger Yen 10,000 medical Niigata DC 24/12/95 14
opening tea drink expenses; Yen 350,000 (Nagaoka Branch)
container lost earnings; Yen
500,000 non-pecuniary
loss (issharyo)
2. osteopath (?) Yen 950,000 ($7917):
poisoned by Yen 650,000 lost earn- Maebashi DC 18/11/96 6
packed cut bacon ings; Yen 200,000
won at pachinko issharyo; Yen 100,000
parlour lawyers’ fees
3. Electric com- 8/8/96 (in tort, under
pany claiming Yen 51,000,000 Sapporo DC Civil Code); 11/96 12
against pipe pro- ($425,000) (amended claim at
cessing company third hearing: also
for defect in snow under PL Law,
melting machines for one machine
delivered after
1/7/95)
4. 12 year old girl
died from poison- Yen 77,000,000 Osaka DC (Sakai 16/1/97 6
ing from 0-157 ($641,667) Branch)
bacteria allegedly
in school lunches
5. Restaurant
manager claiming Yen 33,000,000 Sendai DC 4/2/97 9
from importer of ($275,000)
raw sea urchins for
food poisoning of
23 customers
Amount Claimed (and Number of

Nature of Suit US$, at Yen 120): Court Date Suit Brought Hearings
Breakdown* so far
(end ‘97)*
7. 77-year-old
woman killed while Yen 18,150,000 Kyoto DC 13/5/97 5
waiting for car, ($151,250)
by iron car lift in
parking building
8.* Itchiness and
hearing difficulties Yen 610,000 ($5083): Sendai Summary 1/98 ?
after using ear care claiming purchase Court
product bought and price, medical expenses,
used following issharyo, and lawyers’
instructions, the fees
day after seeing
TV ad
Appendix C: PL Claims Reported Since the Early 1990s

(As of June 1998. Thereafter this table will be kept updated at
<http://www.law.kyushu-u.ac.jp/~luke/plclaims.html>.)
Source:
PL HO NYUSU (later retitled PL HO/JOHO KOKAI NYUSU; both refered to here as “PLN”), issues 1-27.
* Indicates there is commentary on the case in that issue, not a mere listing.
Case No. [Date Suit Brought/] Product & Details Defendant Result
(Reference) Case Citation & (Reference)
Court
1. A-1 1991 (wa) 4761, TV, burned down office: National 29/3/94, DC:
(PLN 1) Osaka DC claimed Yen 78m awarded Yen 44m
(PLN 12* = PLN 12)
2. B-1 1991 (wa) 1715, TV, burned down house, National 9/94 settlement:
(PLN 1) Osaka DC grandma (83) died: Yen 18m
claimed Yen 23m (PLN 15*)
3. C-1 1991 (wa) 1715, TV, burned down house, Sharp 18/9/97 DC:
(PLN 1) Osaka DC daughter (25) died: awarded Yen 11m
claimed Yen 22m (PLN 26)
Case No. [Date Suit Brought/] Product & Details Defendant Result (Reference)
(Reference) Case Citation &
Court
5. E-1 1992 (ha) 1914, Lancia car, suddenly Hakko Karaunji 19/7/94, settlement:
(PLN 2) Osaka SC accelerated: argument supplier responsible
over repair cost for repair, bought
[Yen 0.38m, and buy back] back at Yen 1.6m
(originally 5.4m, x
3/10 years) (PLN 14*)
6. F-1 [21/10/] 1991 (wa) Pajero car, wheel came off, Mitsubishi; 9/2/96, DC:
(PLN 2) 392, Otsu DC injured etc.: claimed Konoe Mitsu- plaintiff lost
Yen 4.6m against maker & bishi Auto Sales (PLN 16* = PLN 16);
garage Co. lost on appeal (PLN
26)
7. (PLN 4) [12/1988] Telephone, infected with NTT 10/7/92, DC: lost;
Osaka DC cockroaches, lost business appealed to Osaka HC
8. (PLN 4) [28/8/1991] Car, accelerated when Honda
Otsu DC parking, slightly injured
9. (PLN 5) [28/8/1991] Car, accelerated, driver
Otsu DC killed
10. G-1 1991 (ne) 1266, Household fungicide Johnson Appeal from 28/3/92
(PLN 5) Tokyo HC judgment - 6/7/94,
HC: ... (PLN 13);
10/4/97 SC judgment
- plaintiff lost
(PLN 24* = 24?)
11. H-1 [6/12/]1991 (wa) Hair dye, damaged eye: Helen Curtis 3/3/94, settlement
(*PLN 5) 17463, Tokyo DC claimed Yen 13.5m Japan (PLN 12)
12. I-1 1992 (wa) 774 Plowing machine, crushed Mitsubishi
(PLN 5* = farmer (60) Agricultural
PLN 6) Equipment
13. K-1 [26/10/]1990, Stool, collapsed and fell off, Sankyo
(PLN 5* = Niigata DC injured Aluminium
PLN 7) Kogyo
14. “J-1” 1992 (wa) 1523, [Not specified] Showa Electric
(PLN 6) Tokyo DC
15. E-2 Nagoya DC Hard contact lenses, Hoya 26/4/95, DC:
(PLN 6*) repeated disintegrated when plaintiff lost (PLN 16)
washed: claimed Yen 0.2m
for replacement costs paid
to retailer
16. J-1 [7/]1991 (wa) 1928, Mountain bike, front wheel Bridgestone 19/3/96 settlement:
(PLN 7 = Nagoya DC came off, boy injured Yen 2.5m
PLN 7*) (PLN 19* = PLN 19)
Court
18. M-1 1992 (wa) 11828, Word processor, AC cord Minolta Camera
(PLN 8 = Tokyo DC shorted, office/home half et al.
PLN 16*) burned down
19. “N-1” 1992 (wa) 12963, White ant pesticide, injured Sankyo
(PLN 8) Tokyo DC neighbours Shodoku et al.
20. N-1 1994 (wa) 10320, Ceramic heater, burned Matsushita, 3/8/94 settlement
(PLN 13* = Tokyo DC down new house Morita Denko, (PLN 14*)
PLN 13) Daiei
21. [accident 11/93] Car, burst into flames, Nissan 10/94 settlement:
(PLN 14*) killed driver “reasonable amount
satisfactory to parties”
22. 1986 (wa) 199, Baby bed, baby caught Bed subcon- 27/10/94 settlement:
(PLN 15*) Wakayama DC between bed and mattress, tracter, own- express deep regret,
suffocated brander whole- ensure never repeated,
saler, Seihin Yen 26m
Anzen Kyokai,
Japanese
government
23. G-2 1992 (wa) 4216, Hair dye, injured eye Riaru Kagaku et 27/2/97, DC:
(PLN 15) Nagoya DC al. plaintiff lost
24. I-2 1993 (wa) 473/1993 Counter table, crushed baby Nihon Hatsujo 25/7/95, DC:
(PLN 15) (wa) 278, plaintiff lost (PLN 17)
Fukushima DC
25. K-2 1994 (ne-o) 742, Elevator, injured when foot Mitsubishi
(PLN 15) Supreme Court caught in door
26. L-2 1994 (ne) 1594, Automatic door, opened Kagoshima 29/3/96 settlement:
(PLN 15) Tokyo HC suddenly, old woman Kensetsu Yen 3m
injured
27. M-2 1994 (wa) 1269, Golf club, shaft came off Mizu Haku
(PLN 15) Okayama DC and flew 100m when
practising
28. N-2 1994 (wa) 534, Car, accelerated suddenly Mercedes Benz
(PLN 15) Shizuoka DC when backing out of Japan
garage, hit concrete wall
and written off
29. O-2 1994 (wa) 3817, New car, accelerated Jaguar Japan 18/2/98 settlement:
(PLN 15) Tokyo DC suddenly in parking lot Yen 2.1m (PLN 27)
30. P-2 1994 (wa) 4181, Tobacco: physical and Nihon Tobacco
(PLN 15) Nagoya DC non-pecuniary harm Sangyo
Court
32. R-2 1994 (wa) 25143, Car, burst into flames Mercedes Benz 25/9/95 settlement
(PLN 15) Tokyo DC Japan (PLN 17)
33. S-2 1994 (wa) 4182, Bench, child (8) caught, Nagoya City 18/2/97 settlement
(PLN 15) Nagoya DC broke leg (PLN 24)
34. T-2 1991 (wa) 811, New gas grill, burned down Rinnai
(PLN 15) Okayama DC house
35. U-2 [7/94] 1995 (wa) Car, fan belt broke, power Toyota
(PLN 17* = 807, Okayama DC brakes failed, injured
PLN 18)
36. V-2 White ant pesticide, Kyatsu 22/7/96 settlement
(PLN 18) injuries the day after used (PLN 21)
37. Car, mother and child Nissan 13/6/96 settlement
(PLN 20) poisoned by CO (PLN 20)
38. Car, burst into flames, Domestic car 16/5/96 settlement:
(PLN 21*) destroyed manufacturer 85% of purchase price
of Yen 3.3m
(PLN 21*)
39. Car, parents, child hospi- Car manufac- 6/96 settlement
(PLN 21*) talised by CO poisoning, turer (PLN 21*)
dog died
40. (via Osaka CLC) Bike, front wheel jammed, Bike manufac- Almost full settlement,
(PLN 25*) boy injured turer, retailer including issharyo
(PLN 25*)
41. (via Housing Pro- “Sick Building Syndrome”, Importer Settlement: Yen 7m
(PLN 25*) ducts PL Center etc.) dentist injured (PLN 25*)
42. Q-3 1997 (wa) 6774, Car, burst into flames Mercedes Benz
(PLN 26) Osaka DC Japan et al.
43. R-3 1997 (wa) 5064, Car airbag, injured when BMW et al.
(PLN 26) Osaka DC didn’t inflate after hitting
pylon straight on
44. S-3 1997 (wa) 10995, TV burst into flames: Mitsubishi 28/12/97 DC: plaintiff
(PLN 26) Tokyo DC claiming Yen 2000m lost (PLN 27)
45. Konnyaku Jelly, child (6) 14/11/97 settlement:
(PLN 26*) suffocated on 29/6/96, apology, Yen 50m
died 17/7/96 (almost full, having
dropped Yen 25m
issharyo claim since
prompt settlement)
(PLN 26*)

Japan's New Product Liability ADR Centers: Bureaucratic, Industry, or Consumer Informalism?

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Japan’s New Product Liability ADR Centers:

Bureaucratic, Industry, or Consumer Informalism? *

Luke Nottage** & Yoshitaka Wada***

18 Schwartz & Behrens, supra note 3.

to continue as amendments to the Code of Civil Procedure, in effect from 1 January

SAFETY INFORMATION] 5, at 9-10 (Nihon Bengoshi Rengokai Shohisha Mondai Taisaku

2. The Birth of PL ADR Centers: Mere “Bureaucratic Informalism”?

49 Stapleton, supra note 34.

52 FRANK UPHAM, LAW AND SOCIAL CHANGE IN POSTWAR JAPAN (1987).

represent “industry informalism”. Certainly, it seems wrong to view these Centers as

70 Bernstein & Fanning, supra note 53.

contemporary rights-consciousness in Japan, see, e.g., Eric Feldman, Patients’ Rights,

1. Many Inquiries, but Very Few Clearly Covered by the PL Law

103 See, e.g., 98/2-A.4 (gas oven, “burn” marks on floor).

appraised more positively as active—if not necessarily always “rational”—use of all

3. Very Few Formal Mediation Cases; Much More Direct Negotiation

117 See, e.g., 98/4-C.1 (possibly).

block association.126 In a similar vein, we were told in interviews at a number of

134 NIRA, ed., supra note 64.

144 CHUNICHI SHIMBUN, November 5, 1997.

148 See 98/3 Newsletter.

or a similar judgment.153 There is a formal precedent, again in the New Zealand

III. CONCLUSIONS AND DIRECTIONS FOR FURTHER RESEARCH

153 See Tanase, supra note 28, especially at 676-678.

168 We thank Bryant Garth for this suggestion.

Appendix A: Product Liability Law

Article 3: Product Liability

Article 5: Limitations of Time

Article 6: Application of Civil Code

Appendix B: Reported Case Filings under the PL Law

Amount Claimed Number of

1. Restaurant Yen 910,000 ($7583):

Amount Claimed (and Number of

Appendix C: PL Claims Reported Since the Early 1990s

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Luke Nottage & Yoshitaka Wada*