Nothing New in the (North) East? Interpreting the Rhetoric and Reality of Japanese Corporate Governance

As Japan emerges from a lost decade of economic stagnation, attention is also focusing on its corporate governance system. Shareholders are gaining ground vis--vis other stakeholders. This is also evident in a plethora of legislative reforms culminating in the consolidated Company Law of 2005, leading some to proclaim the Americanisation of Japanese Law. Part I of this paper outlines two pairs of views. It confirms significant but gradual transformation towards a more market-driven system, involving some modes of change paralleled elsewhere. In assessing change more broadly, Part II urges care in selecting the temporal timeframe and countries to compare, balancing blackletter law and wider socio-economic context, disclosing normative preferences, and focusing on processes as well as outcomes.Corporate governance, Japan

Form and Substance in US, English, New Zealand and Japanese Law: A Framework for Better Comparisons of Developments in the law of Unfair Contracts

There was talk of change in the law of contract in the United States, England, New Zealand and Japan in the 1990s. Often this was linked to broader trends of internationalisation. This article builds on the "form-substance" framework proposed by Atiyah and Summers, focusing on the fine print doctrine, the duty of good faith, and the law of unconscionability and undue influence. It argues that developments in these areas of contract law, which control unfair contracts, tend to be consistent with the overall orientation of each national legal system. This suggests that counter-systemic developments in each legal system's contract law will be met by more resistance than expected. Further, those overall orientations are not necessarily convergent, and this is likely to affect the impact of international developments in contract law on each legal system

The Cultural (Re)Turn in Japanese Law Studies

Commemorating Professor Tony Angelo's tireless efforts and multiple achievements in translating legal rules, principles and cultures from abroad, including many from Japan, this article focuses on an ongoing project to translate selected works of a leading Japanese legal sociologist, Professor Takao Tanase. Part 2 locates Tanase's critical "hermeneutical" understanding of law and society, or of facts and norms, within various paradigms in the English-language world of "Japanese Law". These include a first wave of culturalist approaches; a model instead emphasising the institutional barriers to invoking the law in Japan; another model emphasising "elite management"; and a very different "economic analysis" of Japanese law-related behaviour. Tanase's work instead joins an emerging "hybrid paradigm" that takes more seriously new understandings and measures of culture `project. As Tony taught us only too well, interpreting foreign legalese can be hard enough. But the most difficult task often lies in conveying the way it is embedded in a broader socio-legal praxis and discourse abroad. These challenges will not go away even in our globalised world, thereby securing the future for comparative socio-legal scholarship

Comment on Civil Law and Common Law: Two Different Paths Leading to the Same Goal

This article discusses civil and common law in the context of Caslav Pejovic's article of the same name. Pejovic noticed a trend where common law was increasingly hemmed in by legislation while law jurisdictions were increasingly reliant on precedent set by the courts. Pejovic therefore called for the unification of private law globally. Nottage then explores how different academics approached a potential convergence/divergence dichotomy within civil and common law. The article suggests that a "middle ground" dimension between convergence and divergence is a possible development. The author ultimately advocates for the middle ground dimension as it provides socio-economic context for laws, as well as promoting exegesis in statutory and case analysis. The author thus concludes that convergence and divergence are both valuable

Who's Afraid of the Vienna Sales Convention (CISG)? A New Zealanders View from Australia and Japan

Luke Nottage first sets out the structure of the CISG by reference to a New Zealand – Japan sales dispute. He prefers the CISG over traditional Anglo-Commonwealth law rules and then examines why lawyers and academics have not necessarily embraced the CISG, drawing partly on lessons from behavioural law and economics. He concludes with a call to action by those involved in the practice and study of international sales law

Nothing New in the (North) East? Interpreting the Rhetoric and Reality of Japanese Corporate Governance

Japan finally seems to be pulling itself out of its lost decade (and a half) of economic stagnation. Some grudgingly or triumphantly attribute this to micro-economic reforms, freeing up arthritic markets, although there is also evidence that macro-economic policy failures have been a major cause of poor performance since the 1990s. Many point to overlapping transformations in corporate governance, broadly defined to cover relationships among managers and employees as well as between firms and outside shareholders, creditors, and other stakeholders. These relationships are in flux, with moves arguably favouring shareholders and more market-driven control mechanisms. It has certainly been a found decade for law reform in Japan, particularly in corporate law, with a plethora of legislative amendments commencing around 1993 and culminating in the enactment of a consolidated Company Law in 2005. This modernisation project, particularly since 2001, is reportedly aimed at (i) securing better corporate governance, (ii) bringing the law into line with a highly-developed information society, (iii) liberalising fundraising measures, (iv) bringing corporate law into line with the internationalization of corporate activity, and (v) modernizing terms and consolidating corporate law. Because the suite of revisions has moved away from strict mandatory rules set out originally in Japan\u27s Commercial Code of 1899, modeled primarily on German law, another growing perception is that Japanese corporate law and practice is or will soon be converging significantly on US models. However, assessments remain divided as to whether these moves in corporate governance and capitalism more generally in Japan amount to a new paradigm or regime shift . Focusing primarily on quite influential commentary in English, Part I of this paper outlines two pairs of views. It concludes that the most plausible assessment is of significant but gradual transformation towards a more market-driven approach, evident also in other advanced political economies. Drawing more generally from these often virulently divided views, Part II sets out five ways forward through the proliferating literature and source material on corporate governance in Japan. Particular care must be taken in: (i) selecting the temporal timeframe, (ii) selecting countries to compare, (iii) balancing black-letter law and broader socio-economic context, (iv) reflecting on and disclosing normative preferences, and (v) giving weight to processes as well as outcomes, when assessing change in Japan - and any other country\u27s governance system. Part III ends with a call for further research particularly on law- and policy-producing processes, rather than mainly outcomes. It also outlines the usefulness of this analytical framework for analysing the broader field of Corporate Social Responsibility, now emerging as the next major area of debate and transformation in Japan - as elsewhere

Corporate Governance and Law Reform in Japan: From the Lost Decade to the End of History?

Japan is in the midst of massive law reform. Mired in ongoing recession since the early 1990s, Japan has been implementing a new regulatory blueprint to kickstart a sluggish economy through structural change. A key element to this reform process is a rethink of corporate governance and its stakeholder relations. With a patchwork of legislative initiatives in areas as diverse as corporate law, finance, labour relations, consumer protection, public administration and civil justice, this new model is beginning to take shape. But to what extent does this model represent a break from the past? Some commentators are breathlessly predicting the Americanisation of Japanese law. They see the triumph of Western-style capitalism - the End of History , to borrow the words of Francis Fukuyama - with its emphasis on market-based, arms-length transactions. Others are more cautious, advancing the view that there new reforms are merely creative twists on what is a uniquely (although slowly evolving) strand of Japanese capitalism. This paper takes issue with both interpretations. It argues that the new reforms merely follow Japan\u27s long tradition of \u27adopting and adapting\u27 foreign models to suit domestic purposes. They are neither the wholesale importation of Anglo-Saxon regulatory principles nor a thin veneer over a \u27uniquely unique\u27 form of Confucian cultural capitalism. Rather, they represent a specific and largely political solution (conservative reformism) to a current economic problem (recession). The larger themes of this paper are \u27change\u27 and \u27continuity\u27. \u27Change\u27 suggests evolution to something identifiable, \u27continuity\u27 suggests adhering to an existing state of affairs. Although notionally opposites, \u27change\u27 and \u27continuity\u27 have something in common - they both suggest some form of predictability and coherence in regulatory reform. Our paper, by contrast, submits that Japanese corporate governance reform or, indeed, law reform more generally in Japan, is context-specific, multi-layered (with different dimensions not necessarily pulling all in the same direction ­ for example, in relations with key outside suppliers), and therefore more random or \u27chaotic\u27