Category: Law

This could go bump in the dark. The WSJ: The arrests on bribery charges of two Japanese businessmen Thursday — an official running a pension fund affiliated with a blue-chip company, and a Deutsche Bank AG employee seeking his business — were rooted in the quirks of Japanese law, and its pension industry.

Nisshimura & Asahi have created this useful presentation on Lessons Learned from Recent JapaneseM&A Contract Interpretation Cases, which covers recent legal history in this area and the following topics:

Emancipation of Japanese M&A Contract Drafting
Buyer’s Knowledge
Liquidated Damages
Entire Agreement Clause
Indemnification Claims

http://bdti.mastertree.jp/f/4drb1qmt

Marubeni and other Japanese companies are included in lists like this of the largest settlements, or the largest investigations underway:

https://twitter.com/tom_mcleod/status/387348013544251392/photo/1

We were studing the above topics recently and came across these helpful memos:

Lazarus – Independence Under Delaware Law
http://bdti.mastertree.jp/f/h4em9f7p

Dunn – Good Faith in Delaware
http://bdti.mastertree.jp/f/l3cufnqp

Siegel – Illusion of Enhanced Review – 2013
http://bdti.mastertree.jp/f/x0j7hc5w

Willkie Farr – Entire-Fairness-As-A-Limit-On-Control
http://bdti.mastertree.jp/f/ir40tsel

Detailed Harvard Law Blog entry below, analysis byDavis Polk here. You have to admirethe direct language in this ruling: [I]f you’re going to have a company domiciled for purposes of its relations with its investors in Delaware and the assets and operations of that company are situated in China that, in order for you to meet your obligation of good faith, you better have your physical body in China an awful lot. You better have in place a system of controls to make sure that you know that you actually own the assets.

On 25 June 2013, four key changes came into effect in the U.K. law protecting whistleblowers in the workplace. The first two changes are subtle amendments to the test applied to identify a protected disclosure, and the second two potentially broaden the scope of an employer’s liability for the acts of its employees.

Read the memo:

Skadden- Whistleblower_Protection_in_the_UK-2013
http://bdti.mastertree.jp/f/nm0owlpf

Client alert by Nishimura – On May 17, 2013, the UN Office of the High Commissioner for Human Rights urged Japan to adopt legislation that would make sexual harassment and discrimination in the workplace illegal. This recommendation came in response to Ms. Rina Bovrisse's nearly four-year battle with Prada Japan. According to mediasources, Ms. Bovrisse sued the company after Prada Japan’sCEO David Sesia allegedly demoted or dismissed female staffmembers whom he deemed visually unappealing.

Here are some of the key documents that are described by Keith Darcy in his articlethe previous entry (or memos about them), which led – and are leading to – an inevitable convergence and upgrading of ethics and related systems in many countries:

Defense Industry Initiative http://dii.org/

US Federal Sentencing Guidelines
http://www.ussc.gov/Guidelines/index.cfm

OECD – Convention on Combating Bribery- 1997
http://bdti.mastertree.jp/f/d5kzuct9

(Keith T. Darcy, Executive Director of the Ethics & Compliance Officer Association (ECOA), has written a wonderful piece summarizing the historical rise of the ethics and compliance profession around the world, and its extreme importance to sustainable capitalism. Excerpts and the full report are below.)

Recently, in the wake of massive protests throughout Brazil concerning corruption and other issues, Brazilian President Dilma Vana Rousseff dramatically increased anti-corruption prohibitions in Brazil by signing into law the Anti-Bribery Act or Lei Anticorruptio. The newly enacted Anti-Bribery Act for the first time imposes strict liability on corporate entities for their involvement in acts of corruption in Brazil.