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The Enigma of Hostile Takeovers in Japan: Bidder Beware

Berkeley Business Law Journal, Vol. 14, No. 2, 2017, Forthcoming

Dan W. Puchniak & Masafumi Nakahigashi, ‘The Enigma of Hostile Takeovers in Japan: Bidder Beware’ in Umakanth Varottil & Wan Wai Yee, Comparative Takeover Regulation: Global and Asian Perspectives (Cambridge University Press) Forthcoming

NUS - Centre for Asian Legal Studies Working Paper No. 16/03

NUS Law Working Paper No. 2016/008

NUS - Centre for Law & Business Working Paper No. 16/04

42 Pages Posted: 28 Aug 2016 Last revised: 14 Aug 2017

Dan W. Puchniak

National University of Singapore (NUS) - Faculty of Law

Masafumi Nakahigashi

Nagoya University - School of Law

Date Written: August 2017

Abstract

For over two decades, Japan has ostensibly had all the essential elements that leading academics and sophisticated investors have assumed to be sufficient for a country to develop an active market for hostile takeovers (i.e., dispersed shareholder ownership, depressed share values, and a United Kingdom or United States inspired regulatory framework). This has not gone unnoticed. For decades, leading academics and prestigious pundits have repeatedly predicted the imminent arrival of a wave of successful hostile takeovers in Japan. Based on the same prediction, but with much higher stakes, sophisticated investors have risked billions of dollars. History has consistently proven this prediction wrong — leaving a cadre of bewildered academics, embarrassed pundits, and bitter investors in its wake. How could so many leading academics, prestigious pundits, and sophisticated investors be so wrong (for decades) about Japan’s market for hostile takeovers? This is the enigma of hostile takeovers in Japan, which we seek to explain in this Article.

We argue that, in applying abstract theories derived from the Anglo-American experience, most Western observers have neglected to properly account for local, idiosyncratic, Japanese factors that have stifled the market for corporate control in Japan. First, Japan transcends and complicates the conventional dispersed/concentrated shareholding dichotomy, as shown by the presence of dispersed stable-shareholders who have consistently rallied in support of incumbent management against hostile acquirers. Second, a corporate and shareholder culture that remains dominated by lifetime employee controlled corporate boards adds to the resilience of Japanese companies against hostile takeovers. Third, contrary to the belief of many Western scholars and pundits, Japan’s law on defensive measures cannot be easily compared to the UK or US hostile takeover regimes, as it has developed important idiosyncratic features through judicial precedent and corporate practice that have a distinctively anti-takeover flavour. Ultimately, the story of the absence of hostile takeovers in Japan is a cautionary tale to comparative corporate scholars and foreign investors who underestimate the importance of context: apply Anglo-American generalizations, without adequate local knowledge, at your own peril.

Keywords: Comparative Takeover Regulation, Hostile Takeovers, Comparative Corporate Governance, Shareholder Structure, Japanese Corporate Law, Corporate Culture, Dispersed Shareholders, Lifetime Employment

JEL Classification: G34, M14

Suggested Citation

Puchniak, Dan W. and Nakahigashi, Masafumi, The Enigma of Hostile Takeovers in Japan: Bidder Beware (August 2017). Berkeley Business Law Journal, Vol. 14, No. 2, 2017, Forthcoming; Dan W. Puchniak & Masafumi Nakahigashi, ‘The Enigma of Hostile Takeovers in Japan: Bidder Beware’ in Umakanth Varottil & Wan Wai Yee, Comparative Takeover Regulation: Global and Asian Perspectives (Cambridge University Press) Forthcoming; NUS - Centre for Asian Legal Studies Working Paper No. 16/03; NUS Law Working Paper No. 2016/008; NUS - Centre for Law & Business Working Paper No. 16/04. Available at SSRN: https://ssrn.com/abstract=2830286

Dan Puchniak (Contact Author)

National University of Singapore (NUS) - Faculty of Law ( email )

469G Bukit Timah Road
Eu Tong Sen Building
Singapore, 259776
Singapore
(65) 6516 3625 (Phone)

HOME PAGE: http://law.nus.edu.sg/about_us/faculty/staff/profileview.asp?UserID=lawdwp

Masafumi Nakahigashi

Nagoya University - School of Law ( email )

Furo-cho, Chikusa-ku
Nagoya, 464-8601
Japan

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