Japan Legal Update Vol. 50 | November–December 2019

Jones Day

Corporate Governance

Companies Act Amendments to Enhance Corporate Governance
The Companies Act of Japan was amended on December 4, 2019 ("Amended Companies Act"), based on the Interim Proposal and the Outline previously issued by the Legislative Council (please see the March 2018 issue and February 2019 issue of this newsletter). The Amended Companies Act, which includes various amendments as outlined below, will come into force on or before June 11, 2021, the exact date to be specified by a Cabinet Order.

·Electronic Distribution of Shareholder Meeting Materials Under the current Companies Act, the consent of each shareholder is required for a stock company to make shareholder meeting materials available via the internet instead of sending the materials to shareholders in writing. The Amended Companies Act will allow companies to make such materials available via the internet, without obtaining the consent of each shareholder, by following certain procedures such as amending their articles of incorporation.

  • Limitation of Shareholders' Right to Make Proposals In order to prevent shareholders from abusing the right to propose matters for adoption by shareholder meeting, the Amended Companies Act will introduce an upper limit of 10 to the number of proposals that a shareholder can submit at a shareholder meeting. Although the bill proposing the Amended Companies Act had originally included a provision allowing companies to reject improper proposals, this was criticized for its potential arbitrary use by companies and so, after further deliberation at the Diet of Japan, was deleted.

·Director Compensation The Amended Companies Act will revise the rules regarding director compensation such that directors are properly compensated at a level that is reasonable while also providing appropriate incentives for performance of their duties. For example, the Amended Companies Act will obligate directors to explain at shareholder meetings the company's policy for director compensation. In addition, the Amended Companies Act will allow companies to indemnify officers against third-party claims and will introduce new provisions concerning directors and officers liability insurance.

·Mandatory Appointment of Outside Director The Amended Companies Act will introduce an obligation for listed companies (as well as certain large nonlisted companies) to appoint at least one outside director.

·Establishment of Bond Administration Staff Under the current Companies Act, when issuing corporate bonds, companies are required to appoint a bond administrator, such as a bank or other financial institution, unless certain exceptions apply (such as if the face value of the bond is JPY100 million or more). However, due to the high cost of hiring bond administrators, in practice, companies tend to avoid appointing bond administrators by relying on the exceptions and administering the bonds themselves, which is not necessarily in the bondholders' interests. The Amended Companies Act will introduce a system that allows certain "bond administration staff," such as individual lawyers, to assist with the administration of bonds on behalf of bondholders, so that bonds may be administered in a manner that is more cost effective for companies and better suited to the interests of bondholders.

·Statutory Share Delivery (Kabushiki Kofu) Under the current Companies Act, when a stock company uses its own shares to acquire another stock company and make it a subsidiary, a third-party inspector must perform a valuation of the shares contributed in kind by the target company's shareholders. By contrast, such a valuation is not required where the buyer company conducts a statutory reorganization called a "share exchange" through which the target company becomes a wholly owned subsidiary of the acquiring company. In order to avoid the application of the more cumbersome rules on contributions in kind, the Amended Companies Act will establish a new type of statutory reorganization called a "Share Delivery (Kabushiki Kofu)" with rules equivalent to those of share exchanges pursuant to which a stock company can purchase another stock company with its shares, even where the target company does not become a wholly owned subsidiary.

The Amended Companies Act will have a material impact on corporate law practice in Japan, and companies should take efforts to monitor the impact.

Life Sciences

Amendment to the Pharmaceuticals and Medical Devices Act
The Pharmaceuticals and Medical Devices Act ("PMD Act") was amended on November 17, 2019 ("Amended PMD Act"), and promulgated on December 4, 2019. The amendments can be broken down into the following four areas: (1) improvement of regulations covering product development to post-marketing of pharmaceuticals, medical devices, and regenerative medicine products in order to provide those products more safely, quickly, and efficiently; (2) enhancement of compliance systems; (3) review of the roles of pharmacists and pharmacies; and (4) other revisions.

For the improvement of pharmaceutical, medical device and regenerative medicine product regulations, several systems and procedures were introduced into the PMD Act, including (a) the "sakigake" system, a system for shortening the premarketing review period for innovative pharmaceuticals and medical devices; (b) the conditional early approval system, a system for certain pharmaceuticals or medical devices to receive early approval subject to certain conditions; (c) a procedure for making partial changes to certain previously approved matters using post-approval change management protocol; (d) a marketing approval system for medical devices which are to be continuously improved to deal with technical innovation such as artificial intelligence; (e) a provision of package insert information by electronic means; and (f) mandatory labeling of barcodes.

The amendment relating to the enhancement of compliance systems includes (a) obliging marketing authorization holders and other license holders to establish certain internal compliance systems; (b) creating administrative fines for the sale of medical products through false or exaggerated advertising; and (c) codification of procedures for the import of unapproved drugs. The amendment relating to the role of pharmacists and pharmacies includes new regulations concerning patient compliance instruction by videophone. Other revisions include the establishment of an independent committee for the evaluation and monitoring of the government's administration of pharmaceuticals and medical devices in Japan.

The Amended PMD Act will come into effect in three steps: most of the amendment will come into force within one year from the date of its promulgation (December 4, 2019); the obligation to establish compliance systems, the administrative fine system for false or exaggerated advertising, and the requirement of electronic provision of package insert information will come into effect within two years from the date of promulgation; and the mandatory barcode requirements will come into force within three years from the date of promulgation. The Amended PMD Act includes various new regulations which will affect the business activities of life science companies in Japan. Life science companies should closely monitor the content of future enforcement ordinances and industry practice as each component takes effect.

International Trade

Amendments to the Foreign Exchange and Foreign Trade Act

The Foreign Exchange and Foreign Trade Act of Japan ("Forex Act") was amended on November 22, 2019 ("Amended Forex Act"), to incorporate, among other things, certain changes to the definition of "inward direct investment." The Amended Forex Act was then promulgated on November 29, 2019, and will come into effect on a date to be specified by Cabinet Order but no later than six months from the date of such promulgation.

Under the Amended Forex Act, the definition of "foreign investor" will be expanded to include the partnerships where non-Japan residents contribute 50% or more of the investment capital. In that case, the partnership itself, not each investor of the said partnership, will be a "foreign investor" under the Amended Forex Act and must notify or report on certain investment matters. This revision is intended to meet the requests of the venture capital industry to clarify who is obligated to notify and report when an investment fund acquires shares or voting rights of a Japanese company.

Under the current Forex Act, the acquisition by a foreign investor of 10% or more of the stocks or voting rights of a Japanese listed company is considered an "inward direct investment," and accordingly the foreign investor must file either a prior notification (for certain sensitive target industries) or a post-investment report regarding the investment. However, this 10% threshold will be reduced to one percent under the Amended Forex Act. The definition of "inward direct investment" will also include such things as (i) consent by foreign investor(s) to matters that have a material effect on the management of a Japanese company (such matters to be specified by Cabinet Order); (ii) business transfers of Japanese companies to foreign investors; and (iii) mergers, including absorption mergers where a foreign investor acquires a Japanese company. As a result of this expansion to the definition of "inward direct investment," the scope of investments that may be subject to the prior notification or post-investment report requirement will also be expanded.

On the other hand, new exemptions to the prior notification requirements for inward direct investments will be introduced. The details of these exemptions have not been determined yet, but it is assumed that portfolio investments will be exempted. It is also assumed that prior notification exemptions will not be applicable to (a) investments by foreign investors who have previously violated the Japan Foreign Exchange Law or (b) certain types of investments specified by Cabinet Order as having an impact on national security. In order to take advantage of such exemptions, it is expected that foreign investors will need to comply with certain conditions set by the Ministry of Finance and the ministries having jurisdiction over the business (e.g., not becoming a board member of the invested company, not proposing a subsequent sale or abolition of the company, not accessing nonpublic information that can impact national security, etc.). The details of prior notification exemptions will be stipulated in forthcoming ministerial ordinances and notifications.

Intellectual Property

Enforcement Date of Patent Act Amendment Announced
On November 7, 2019, the Cabinet Order to Specify the Enforcement Date of the Act to Partially Amend the Patent Act, Etc. was promulgated. The Amendment to the Patent Act (excluding certain provisions) will come into force on April 1, 2020. For details, please see the April 2019 issue of this newsletter.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Jones Day | Attorney Advertising

Written by:

Jones Day

Jones Day on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.