Some statutory recognition in article 419-3 of the Japanese Civil Code which provides that an obligation to pay money of any kind cannot be excused or waived due FM unless otherwise agreed between the parties. Enforceability of FM clauses may be affected by restrictions imposed under mandatory rules.

Yes. FM clauses are considered as enforceable agreed terms by the courts. However, interpretation is often fairly strict and focused on the explicit wording of the clause.

There is no formality to invoke under Japanese law. As such, any formality for invoking the FM clause will be as set out in the clause (or contract) itself.

In the courts, however, a party seeking to invoke a FM clause will ordinarily be required to show:

1. Occurrence of the FM event; and
2. Failure to perform was caused by the FM event.

Further, as any negligence by the claimant will be considered with respect to damages (see next section - "Obligation to mitigate"), prompt notification of the FM event is advisable.

In principle, Japanese law does not provide specifically for a duty to mitigate. With that being said, a recent first instance court decision linked an obligation to mitigate to acting as "a good manager". Here, in addition to the FM event, the court held the supplier was required to mitigate in order to be released from its liability for defaulting on its timely delivery obligation under a continuous supply contract. We note, however, that a judgment issued by a first instance court in Japan is not legally binding on other judges and courts.

Also, article 418 of the Japanese Civil Code does, however, provide that the courts can take into account any negligence by a claimant when determining the entitlement to, and amount of, damages. As such, a claimant's failure to mitigate, i.e., negligence, would likely result in a loss or reduction of the claimed amount.

Additionally, the FM clause itself may contain an obligation to minimise loss or damage.

Under Japanese law, the outcome of invoking FM (and the performance of the obligation to mitigate as a 'good manager,' if requested by court) will usually be release from liability for default of an obligation to deliver a product or service in a certain time frame (with certain limited exceptions).

Additionally, a party that successfully invokes a FM clause, depending on the remedies set out in the contract, may be entitled to:

1. Rescission of an order or voiding a contract;
2. Adjusting the scope or steps for performance, such as timing and method of delivery;
3. Forfeiture of paid-in-advance costs, fees or price (release from refund obligation); and/or
4. Excusing a breach of contract, waiving an obligation or otherwise releasing a party from liability.

In the absence of an FM clause, a small number of doctrines under Japanese statutory law and court precedents offer similar remedies in limited circumstances, e.g the ability to seek cancellation, suspension of obligations or re-negotiation of terms and conditions of contracts.