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井垣太介 (Taisuke Igaki)

Author:井垣太介 (Taisuke Igaki)
日本及び米国NY州弁護士
 @西村あさひ法律事務所

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日本における対内直接投資規制の概要(英語版)

財務大臣・経済産業大臣が、2008年5月13日付けで、TCIファンド(ザ・チルドレンズ・インベストメント・マスターファンド)に対し、電源開発株式会社の株式追加取得に係る対内直接投資を中止するよう命令したニュースは、日本におけるFDIに対する初の中止命令ということで、アメリカでも波紋を呼んでいます(*1)。そのような流れの中で、日本における対内直接投資規制の概要について英語でまとめる機会がありましたので、掲載しておきたいと思います。なお、転用される場合には、その時点における最新の情報が反映されているか否かにつきご確認ください。以下の内容は2008年6月末現在のものです。

1. Primary Law regulating FDI in Japan
In Japan, foreign investment is regulated mainly by the Foreign Exchange and Foreign Trade Act (FEFTA) in 1949, which allows government ministries to prohibit or restrict a proposed foreign investment when they think the investment may harm national security, public order, public safety, or the smooth management of the economy.

2. Definition of “foreign investment”
In the first place, “foreign investment” defined under FEFTA includes: (1) acquisition of at least 10 percent foreign ownership of shares in a company listed on a Japanese stock exchange; (2) acquisition of any shares in an unlisted company; (3) establishment of a branch, factory, or other business office in Japan; (4) consent given to change the corporate objectives of a domestic company with one-third or more foreign ownership; or (5) loan of certain types and amounts of money to domestic companies.

3. Regulatory Frame
The regulation on foreign investment in Japan under FEFTA can be classified into two categories - prior notification and after-the-fact reporting. The sensitive sectors enumerated below require prior notification and government approval.
• aircraft, weapons, nuclear power, spacecraft, and gunpowder (in light of national security);
• electricity, gas, heat supply, communications, broadcasting, water, railroads, passenger transport (in light of public order);
• biological chemicals, guard services (in light of public safety); and
• primary industries relating to agriculture, forestry and fisheries, oil, leather and leather products manufacturing, air transport, and maritime transport (in light of smooth management of the economy).
Furthermore, FEFTA requires prior notification for investments from countries with which Japan has not completed a reciprocal investment agreement.
Foreign investment in other sectors only requires an after-the-fact notification to the government, whereas there are some types of insignificant investment which requires neither a prior notification nor an after-the-fact notification even when the investment is conducted by foreign corporations or foreign individuals.

4. Recent Change of Regulation
A Japanese Cabinet Ordinance came into effect on September of 2007 which was the first amendment since the latest amendment of FEFTA in 1991. This Cabinet Ordinance requires prior notification for foreign investment related to items used for the maintenance of the defense industrial. To be specific, the change covers industries related to the manufacture of arms, aircraft, satellites, and nuclear reactors, including testing equipment, repair equipment, and certain types of software usable in weapons and airplanes. The change also includes foreign investment in a parent company when its subsidiary falls under a sector that is subject to review.

5. Review and Reporting Process
The ministries are given 30 days to complete the reviewing process of a proposed foreign investment after a foreign investor has notified the ministries of the proposed investment. If the investor has not received a response from the ministries within the 30 days, the transaction is automatically approved. The review period may be extended up to 4 months in case they believe further inquiry is needed. A Committee on Foreign Exchange and Other Transactions also may extend the review period an additional month. In actual business, the review period are frequently shortened to 14 days by the request of the parties and the approval of the ministries. The ministries review investments on a case-by-case basis, and specific criteria used in the course of the review to decide if the investment poses a significant threat are not made public.
A foreign investor in sectors that require after-the-fact reporting must file a report with the Ministry of Finance and the ministry with jurisdiction over the industry through the Bank of Japan within 15 days after a transaction occurs.
In addition to the review process implemented under FEFTA, there are specific regulations on some sectors such as broadcasting, telegraph, telephone and aircrafts, where foreigners or foreign-controlled enterprises are not granted license or their board members and auditors are required to have Japanese nationality.

6. Penalty in case of Violation
Failure to notify, among other violations under FEFTA, can result in criminal penalties including jail for up to 3 years and/or a fine of three times the investment amount or 1 million yen, whichever is larger.

7. Recent High-Profile Case
While the Japanese government has not used this authority since FEFTA was amended in 1991 to recent days, the Minister of Finance and the Minister of Economy, Trade and Industry of Japan made a recommendation based on FEFTA toward The Children's Investment Fund (TCI) on April, 2008, blocking TCI's efforts to raise its stake in a major electricity company on the grounds that this investment is likely to impede the stable supply of electric power and Japan’s nuclear fuel cycle policy, and disturb the maintenance of "public order." It was the first rejection of such a proposal under a law that requires government approval before foreign companies can hold stakes of more than 10 percent in companies in sensitive sectors such as utilities, broadcasting and weapons manufacturing.

Japan ranked 37th in terms of the average value of FDI inflows world wide between 2000 and 2006, which is significantly less than for other large economies. In March 2006, the Japanese government set an updated goal that has been officially adopted by the cabinet to increase foreign investment in Japan to 5 percent of the country’s GDP by 2010(*2).

(*1) http://www.mof.go.jp/jouhou/kokkin/tci20080513-01.htm
(*2) Foreign Investment Laws and Policies Regulating Foreign Investment in 10 Countries, GAO, February 2008

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