Why Modern Corporate Structure Results in Large Ethical Lapses

I was recently asked by the Japan Society of Greater Cincinnati to give the keynote speech at their conference event on the theme of “Why Good People Do Bad Things”. I decided to liven things up a bit by attempting to answer the self-posed question: “how might we design corporations if we were inventing them today [not in 1600 -1900]… in an age of huge capital pools, global warming, and an increasing number of other large externalized risks and informational (and other) asymmetries?”

See what you think of my “concept for discussion” on pages 16-19, and my reasons for throwing it out for consideration on the earlier pages. I realize some people will think this concept is a strange and unnecessary, as if the basic legal structure of the corporation is immutable, or hoping ESG integration by itself will solve most of the problems it is concerned with. However, I suspect that in the next few decades corporate law will be evolving much more so as to address the issues and concerns that I raise… even if it addresses them in a different manner. I do not believe that the present legal form of “the corporation” itself is sustainable. Over the past 100 years, too many agency problems, market distortions, asymmetries, and externalities have emerged.

Allow Japanese Citizens to Sponsor Foreign Domestic Workers

Prime Minister Abe’s requests to close schools nationwide, tele-work from home, and cancel sports events and public gatherings, have caused a great deal of strain on working mothers. More than ever before, now is the time when the Government of Japan (the GOJ) should be accelerating its stated policy to allow Japanese households to sponsor Foreign Domestic Workers (FDWs).

Women are being encouraged by the government to enter the labor force, with the expectation that they will become executives and join Boards of Directors. If the government expects to reach its own goal for women to constitute 10 percent all corporate directors during this year (2020), it will need to rapidly increase the range of “options” that women have for childcare and elderly care.

A Guide to Understanding Carlos Ghosn’s “Not Guilty” Plea

by Sachiko Ichikawa
Comment by Nicholas Benes

Carlos Ghosn held a press conference on January 8, 2020 to present his “not guilty arguments” regarding the alleged crime of making, or not preventing, misrepresentations in Nissan’s Security Reports. He had already disclosed the testimony he made at the Japanese court which was considering his bail in 2019. So this was the second time that he has defended himself in public.

Mr. Ghosn spent more than one hour for his presentation, and even showed many slides and materials, but his logic for insisting on his innocence was not easy to understand. To me, his 2019 testimony in court was better than his 2020 televised presentation.  In an attempt to connect the dots, this article will explain my own interpretation of what Mr. Ghosn really wanted to say.

Results of CFA Society Japan and CFA Institute survey regarding amendments to the Foreign Exchange and Foreign Trade Act

Almost 70% of respondents do not agree with the amendment and 86% showed their concern that the amendment might give a negative impact on the investment into the Japanese equity market.

Results of CFA Society Japan and CFA Institute survey regarding amendments to the Foreign Exchange and Foreign Trade Act

“Japan’s Unfinished Corporate Governance Reforms”, by Nicholas Benes

My article on Japan’s unfinished reforms is online now. Lest the Abe administration and regulators “declare victory” when they are only half done, I describe seven specific measures that Japan needs to adopt in order to bring its market up to a global standard for a developed nation:

  1. Detailed rules for an independent committee
  2. A clear requirement for a majority of independent directors on the board
  3. Codifying the role and responsibilities of executive officers
  4. Consolidation of overlapping disclosure reports
  5. Protection of minority shareholder rights
  6. Enhancing transparency to reduce entrenchment and enhance inclusiveness
  7. Strengthening stewardship throughout the investment chain

I stress the reality that in all of these, strong political leadership from the Prime Minister and other senior parliamentarians will be needed. “Thus, is it essential that the Tokyo Stock Exchange (JPX/TSE) and the various regulatory agencies keep up reform momentum. However, one senses a desire from these groups to ‘declare victory’, and they have a tendency to not fully coordinate with each other. If Prime Minister Abe’s cabinet did more to make the key players coordinate their efforts in key areas, meaningful governance change (and protection of investors) would accelerate….

Activist Shareholders and Directors, Beware! (Nishimura & Asahi)

When exiting minority holdings, not only beware about insider trading rules, but also short-swing profit rules. “Similar to the securities laws of other jurisdictions, Japanese securities laws also have short swing profit rules that require directors (and equivalents thereto) or 10% or greater shareholders to disgorge profits earned from matching buy-sell transactions (i.e., purchases and sales occurring within a six month window of each other, subject to certain limited exceptions) regardless of whether they are in possession of material non-public information. To avoid a costly surprise, an investor should confirm that it has not acquired any Public Company shares during the six month period leading up to the proposed share sale in order to avoid the perfunctory short swing profit disgorgement rules under Japanese securities laws. “

Some Simple Questions for Softbank

For companies with Softbank Group’s corporate governance structure (a company with Board of Statutory Auditors), Article 362 of Japan’s Company Law stipulates the following:

…..(4) [the] Board of directors may not delegate the decision on the execution of important operations such as the following matters to directors: [which means: “may not delegate these matters to directors or anyone else with executive responsibilities. In other words, the board must approve the following: ]
(i) The disposal of and acceptance of transfer of important assets;
(ii) Borrowing in a significant amount;
(iii) The appointment and dismissal of an important employee including managers;
etc. “”

Because of this language in the law, companies draft up “criteria for board decisions” (“fugi kijun”) , and have them approved by the board. These criteria define numerically (and in other ways if necessary) what will be considered “important” under each of the categories set forth above and therefore will require board approval, e.g. purchases of real estate larger than 1.0 Billion Yen (about $10 million), investments or acquisitions larger than 2 Billion Yen ($20 million), etc. – a “limit amount” referred to below as “X” .

Discussion in Japan About “Clawback Clauses”

In Western countries, many companies have introduced “clawback clauses” that require executives to return performance-linked compensation to the company in certain cases. In Japan, very few companies have such clauses. There are dissident voices saying things like “compensation of Japanese executives is less than in Western companies, so there is no need to do that,” or “if you want to demand the return of paid compensation, you can file a derivative lawsuit.” In this article, I would like to review the arguments that have been made so far about clawback clauses, and consider the arguments that should be made in the future.

Work Style Reform in Japan

On July 12, 2019, I gave a presentation about Work Style Reform in Japan at a seminar organized by the Japan America Society of Washington DC in the beautiful meeting room of the Groom Law Group. The talking points in my presentation were the background of the reform (political background and male dominated office), the major points of amendment to laws, the problems and keys to improving productivity, the young generation’s view of employment activity and work-life balance, protection for non-regular employees, and some implications to businesses in Japan. The questions and opinions raised by the participants were as follows.

Public Comment to the METI Fair M&A Study Group (by Nicholas Benes)

As the person who initially proposed the Corporate Governance Code to the LDP in 2013 and 2014, I am well aware of its limitations in various areas. For this reason, I am very pleased that Fair M&A Study Group have decided that its discussions should cover not only MBOs, but also ”cases which are likewise significantly affected by the issues of conflict of interest and information asymmetry”[1], including “cases of acquisition of a controlled company by its controlling shareholder.”[2]

This indeed an important mission, because these topics include virtually all types of M&A transactions and the public statements of executives and boards with regard to them. For many years in the post-war era, the failure of the government and the JPX/TSE to set forth clear bright-line rules that facilitate a fair, robust M&A market in Japan has stunted productivity, dynamism and growth in the Japanese economy.