Gundlach v. IBM memorandum (Part 2): How hard is it for law clerks to find Japanese law?

As I continue to study Judge Seibel’s opinion and share it as PDF with interested parties on both sides of the Pacific, what I am really wondering about is why some of my arguments and cites to Japanese labor law aren’t reflected. As I keep saying, the dockets are currently jammed with cases, because of what the Republicans are doing in the U.S. senate to spite Obama. But still, there is a plethora of internet sources available, that the average clerk should be able to access in two minutes, thirty seconds flat.

(Clearly, the parties involved had access to these databases four years ago, as well, since quite a few of them have been up for a decade.)

Thirty-day notice is in Labor Standards Law. It’s the law–it’s not a negotiated term:

Term-limited contracts do not have this. There, it’s a whole different standard to end an employment relationship:

So the presence of a 30 days’ notice suggests more that the contract follows regular employment standards than it does fixed-term standards.

Why someone would be negotiating to remove end dates or “initial periods”. No mystery there:

This Baker & McKenzie advisory note points out, as so much business commentary on the internet does, that term-limited employment contracts in Japan are a safe harbor of sorts, versus the Labor Standards Law. When the term-limited contract fails, the fallback is not “whatever the parties intended” or “whatever has real meaning”, but rather whatever the rules are in the Labor Standards Law. You don’t get to opt out of these because you are an employer with a foreign parent. You don’t get to change the laws around because the employee is an American, not a Japanese. (And then cry when someone says that’s discrimination . . . )

[Update 5/7/12: The critical thing is, the finding of law is a finding of something with general applicability. If it’s the law in Japan that employees are entitled to 30 days’ notice via the 1947 Labor Standards Law (LSL) Article 20, then someone putting that in a contract really is not giving or granting anything. As I say above, it’s really suggesting that the relationship is one of regular employment. When expat parties are jawboning or trying out their “what ifs” to get around the law, that is one thing. But another thing is the actual law. When something rises to be an issue that affects many people, there ought to be a nailing down of what really is the rule—what I’ve referred to as the Real Rule in so many contexts that involve Japan.]

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