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Country Commerce

Japan

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Contents
3 3 4 5 Regulatory/market assessment Regulatory/market watch Japan’s position in the global economy Political/commercial background
Political conditions Market conditions Currency State role in the economy Foreign investment International agreements Intercompany charges Turnover, sales and excise taxes Other taxes

59

Personal taxes
Overview Determination of taxable income Personal tax rates Capital taxes

64

Competition policy
Overview Monopolies and market dominance Mergers Freedom to sell Price controls

15

Organising an investment
Basic investment approval Acquisition of an existing firm Building and related permits Environmental law Acquisition of real estate Establishing a local company Establishing a branch

70

Exchange controls
Overview Repatriation of capital Profit remittances Loan inflows and repayment Remittance of royalties and fees Restrictions on trade-related payments

30

Human resources
Overview Labour law Industrial labour Wages and fringe benefits Working hours Part-time and temporary help Termination of employment Employment of foreigners

73

Trade policy
Overview Tariffs and import taxes Import restrictions Taxes on exports Free ports, zones Export restrictions Export insurance and credit

40

National incentives
General incentives Industry-specific incentives Regional incentives Export incentives and zones

81

Intellectual property and e-commerce
IPR overview Protection of intellectual property Registering property Negotiating a licence Administrative restrictions Forms of e-commerce Growth of e-commerce E-government trends Consumer protection Contract law and dispute resolution Basis of taxation

43

Corporate taxes
Overview Corporate tax rates Taxable income defined Depreciation Capital taxes Treatment of capital gains Taxes on interest and dividends Taxes on royalties and fees Double-tax treaties

100 Key contacts

Charts
4 4 4 4 7 12 Merchandise trade Net FDI as % of GDP FDI vs GDP Share of global FDI Business environment Private-enterprise policy 14 20 34 36 40 44 Foreign-investment policy Setting up a new business Labour market Availability of skilled labour Hiring of foreign nationals Tax regime 65 70 73 75 89 95 Promotion of competition Price controls Foreign trade and exchange Tariff and non-tariff barriers Intellectual-property protection E-business readiness

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Regulatory/market assessment
• The net flow of inward foreign direct investment (FDI)—that is, new investment inflows less disinvestment—for the 2010 calendar year plunged to a negative US$1.36bn on a balance-of-payments basis. This compares with FDI of US$11.84bn in 2009 and US$24.6bn in 2008. 13 • Legislation approved in June 2011 extends the 18% reduced tax rate for small and medium-sized enterprises to March 31st 2012 and provides for tax incentives to companies increasing employment and acquiring machinery and equipment for environmental protection. It also has tax incentives for foreign companies setting up businesses in designated special zones for international strategy and for multinationals establishing their Asian headquarters and research-and-development operations in Japan. 41 • The Diet (parliament) approved the Tohoku Legislation in April 2011, providing special tax relief to corporate taxpayers affected by the March 2011 earthquake and tsunami. The legislation lets companies that incurred a specified disaster loss carry back such loss for two years, for national tax purposes. 44 • Japan’s treaty with Hong Kong for avoidance of double taxation went into force in August 2011. Japan also signed treaties in 2010 and 2011 with the Bahamas, the Cayman Islands and the Isle of Man, allowing the exchange of information to prevent international tax evasion. 56 • Japan and seven countries (Austria, Canada, Finland, Russia, Spain the UK and the US) expanded the Patent Prosecution Highway via a one-year pilot programme, from July 2011. Patent applicants may thus file requests for an accelerated examination when their applications have been assumed as patentable by one of the participating patent offices, regardless of the office where the application was filed first. 91

Regulatory/market watch
• A senior official of the ruling Democratic Party of Japan indicated in August 2011 that the government might cut its stake in Japan Tobacco to one-third from one-half and sell some of its 33.3% stake in Nippon Telegraph and Telephone. In addition, some lawmakers floated the idea of selling the government’s 53% stake in Tokyo Metro, which operates the subway network in Japan’s capital, through an initial public offering. 10 • A feed-in tariff law that will require all independent power producers and utilities to buy electricity from renewable sources is to go into force in July 2012. A parliament-appointed panel scheduled to meet in early 2012 will set the prices for each type of green energy in the next 20 years, to guarantee power producers pre-set returns and encourage them to invest in renewable energy sources. 23 • The Central Minimum Wage Council recommended in July 2011 an increase of ¥6 to ¥736 in the weighted average hourly minimum wage in Japan for fiscal year 2011/12 (April 1st to March 31st). Despite this recommendation, 38 prefectures are likely to raise the minimum wage by just ¥1, according to news reports, since businesses were battered by the recent earthquake and tsunami. 35 • Japan is to install a new system of residence management by mid-2012. This will extend the maximum legal period for foreigners to reside in Japan to five years (from three). Instead of an Alien Registration Certificate, these foreigners will be issued residence cards (also called special permanent resident certificates) equipped with integrated circuits or microchips. A foreigner with a valid passport and a residence card will not need to apply for a re-entry permit if he/she enters Japan within one year of departure. 39 • Under a government strategy released in May 2010, citizens and corporate users by 2020 will be able to file applications and obtain certificates electronically 24 hours a day, without having to visit government offices. Japan aims to install terminal booths in convenience stores, as early as 2013, to give 50% of citizens access to these administrative services. A citizen-identification system should be operating by 2013, letting individuals monitor the use of their personal data by the national government. 96

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Japan’s position in the global economy
Merchandise trade
(% of GDP)
Exports 16.0 15.0 14.0 13.0 12.0 11.0 10.0 9.0 2006 07 08 09 10 11 12 Imports 30.0 25.0 20.0 15.0 10.0 5.0 0.0 -5.0 -10.0 2006 07 08 09 10 11 12

Inward direct investment
(US$ bn)

Source: Economist Intelligence Unit.

Source: Economist Intelligence Unit.

The Japanese government officially welcomes inward foreign direct investment (FDI), albeit largely to counter protests by trading partners about the closed nature of its domestic markets. In practice, however, Japan’s FDI regime remains difficult, owing to a complex regulatory environment that appears designed to protect existing domestic players. Japan is also one of the world’s most expensive business locations, and it will remain a difficult country in which to invest. Given the small scale of foreign investment in Japan and the country’s high saving rate, inward FDI has had a negligible effect on domestic gross fixed capital formation. Nevertheless, FDI has affected managerial practices and has influenced the reorganisation of long-standing business relationships. Although the Economist Intelligence Unit forecasts that continuing supply-side reforms will enhance Japan’s attractiveness, changes look to be gradual at best. Nevertheless, the country is now seeking free-trade agreements with a number of countries. The deals may include provisions that improve the ability of foreign companies to invest in Japan by lowering the regulatory hurdles they must overcome.
Inward direct investment and GDP growth
Inward direct investment (US$ bn); left scale Real GDP (% change, year on year); right scale 8.0 6.0 4.0 2.0 0.0 -2.0 -4.0 -6.0 2006 07 08 09 10 11 12 -8.0 -1.0 2006 07 08 09 10 11 12 -0.5 0.0 0.5 1.5 1.0

Share of global FDI
(%)

30.0 25.0 20.0 15.0 10.0 5.0 0.0 -5.0 -10.0

Source: Economist Intelligence Unit.

Source: Economist Intelligence Unit.

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Political/commercial background
Political conditions The economic malaise that began in the early 1990s has frustrated the policies of one administration after another, and these serial failures have in turn gradually sapped public trust in government and the other institutions of Japanese society. The saddest manifestation of this disillusionment has been the diminished aspirations of people in their twenties and thirties. But a bigger concern is that the rest of the population has also lost faith. The stoicism with which the Japanese people accepted the government’s sometimes feckless response to the crisis following the earthquake and tsunami that struck Japan’s Tohoku region in March 2011—citizens expressed little anger, or even surprise, at official mistakes—attests to this widespread resignation. Although Japanese patience is in some ways admirable, it also tends to attenuate public pressure on the government to improve its performance and hence reduces the likelihood that the authorities will take the bold actions needed to advance the country’s economic, diplomatic and political interests. The ruling Democratic Party of Japan (DPJ) elected Yoshihiko Noda as its new leader, and the parliament elected him prime minister on August 30th. The former finance minister under Naoto Kan, the outgoing prime minister, took the helm at a time of political deadlock and economic malaise, but he will have to make quick progress in order to avoid the fate of Japan’s past five prime ministers, only one of whom lasted more than a year in office. The challenges Mr Noda faces are formidable. Most immediately, north-east Japan is still reeling from the disaster in March 2011. Tens of thousands of people lack permanent homes, and rebuilding is behind schedule. The nuclear crisis at the Fukushima power plant continues to simmer, complicating reconstruction efforts. Mr Kan’s perceived mishandling of the nuclear crisis and post-tsunami reconstruction was one of the main reasons for the slump in his public-approval ratings to around 15%. It will be very difficult for Mr Noda to do better unless he can unite his party and forge common ground with the opposition party. If the situation in Japan’s north-east remains dire, the state of the broader economy is hardly reassuring. Real GDP has contracted for three quarters in a row. Mr Noda also faces a challenging international situation. The relatively hawkish new prime minister, whose father was a career soldier, is viewed with suspicion by the governments in China and South Korea. In previous foreignpolicy statements, Mr Noda has emphasised the need to strengthen the country’s alliance with the United States and has expressed concern about China’s rise. There is a high probability that maritime disputes between China and Japan will flare up again on Mr Noda’s watch, forcing his government to choose between tolerating economically damaging tensions with China and appearing to capitulate on matters of territorial sovereignty. Unlike most of their Western counterparts, the Japanese tend to write their contractual agreements in general terms, entrusting the details to the presumably fair judgment of the parties involved. Contracts are highly respected despite this lack of precision, and it is unusual to settle a business dispute through litigation. Even so, Japanese multinational companies have
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become familiar with the US and European legal systems and with Westernstyle contracts. Waves of industrial and business restructuring and economic liberalisation and deregulation have cleared the way for many international mergers and acquisitions that involve intricate legal manoeuvrings. Shareholder activism is on the rise, along with the acceptance of a culture of litigation. On balance, business practices in Japan are moving towards global standards, with greater emphasis on Western-style legal specifics. Japan’s judicial hierarchy consists of the Supreme Court, High Courts, District Courts, Family Courts and Summary Courts. Japan formally adopted a jury system in May 2009, in accordance with a law passed in May 2004 to allow citizens to participate as jurors in trials for certain felony crimes. Japan’s civil courts enforce property and contractual rights. Litigation of investment and business disputes is a slow process. The government is trying to make the legal system more efficient and professional, but changes come slowly. For more information on political conditions, see the Economist Intelligence Unit’s most recent Country Forecast Japan report. Market conditions Japanese economic activity was already slowing at the end of 2010, the fourth quarter of which brought a 0.6% real decline in GDP in quarter-on-quarter (seasonally-adjusted) terms. The first quarter of 2011 was worse because of the earthquake and tsunami. According to the government’s most recent data release, the economy contracted by 0.9% quarter on quarter in January–March. This relatively good result reflects the fact that the natural disaster affected only the final fortnight of the quarter. More surprising was that the preliminary figures for April–June, a period during which the tragedy was expected to cast a much darker shadow, indicate that real GDP shrank by only 0.3%—a significantly better performance than many observers had expected. But the second-quarter GDP figure masks a weakness. Although an increase in government spending on disaster relief looked to bolster commercial activity in the second quarter (government consumption contributed 0.4 percentage point to year-on-year GDP growth in the three-month period), the accumulation of private inventories—this category also contributed 0.4 percentage point to yearon-year growth—is probably a sign of weakness rather than strength. (Private investment remained unchanged in April–June, whereas all other components of GDP recorded contractions.) By disrupting the regional transport system and energy grid, the earthquake and tsunami prevented companies from obtaining the full range of supplies they needed to produce final goods; sales at home and abroad decreased, and thus the raw materials and parts that were available piled up at various Japanese companies. Hence, the expansion in inventories does not represent companies’ expectations of stronger demand but rather an inability to adjust to rapid change in the business environment following the disaster. That matters since businesses entered mid-year with large stocks of industrial inputs and will consequently purchase less of such goods in the third and fourth quarters of 2011 than they would otherwise have done. The Economist Intelligence Unit expects Japan’s north-eastern coast to take years to recover from the devastation inflicted by the earthquake and tsunami, since whole towns were razed and infrastructure was severely damaged.

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However, the three worst-affected prefectures, Miyagi, Fukushima and Iwate, account for less than 4% of Japanese GDP. Moreover, most natural disasters have a net positive effect on economic growth since the initial drop in output is more than offset by the reconstruction boom that follows. Thus, despite the vast scale of the human tragedy, the disaster has not led us to alter fundamentally our forecast for the Japanese economy. In the short term the earthquake and the failure to control the nuclear situation will hurt the country economically. We forecast GDP in 2011 to contract by 0.2% (revised from a contraction of 0.5%). We expect a strong reconstruction-based recovery in the second half of 2011. This will continue into 2012, when we forecast that GDP growth will accelerate to 2.3%.
Business environment
(score; 10=high)
G7 (av) 10.0 8.0 6.0 4.0 2.0 0.0 Japan

2006

07

08

09

10

11

12

Source: Economist Intelligence Unit.

Currency

The Japanese yen floats freely against all major currencies. Existing law gives power over exchange-rate intervention to the Ministry of Finance. The ministry can, if necessary, instruct the Bank of Japan (BoJ), the central bank, to buy or sell yen, US dollars, euros and other currencies, in line with the government’s official exchange-rate policy. The yen has appreciated from an average of ¥82.69:US$1 in January 2011 to ¥77.19:US$1 in September 2011. A stronger yen is believed to be exacerbating the predicament of exporters, but the authorities’ efforts in August 2011 to arrest the currency’s rise have largely failed. As a result of the yen’s strengthening and the failure of policy to prevent this, the Economist Intelligence Unit now expects the exchange rate to average ¥79.7:US$1 (compared with ¥81.2:US$1 previously) in 2011 and ¥77.4:US$1 (¥80.1:US$1 previously) in 2012. We have not significantly altered our long-term forecast of the currency’s value: Japan’s current-account surplus and plentiful foreign-exchange reserves will continue to support the yen. The interest-rate differential between Japan and the United States will probably remain negligible over the next 18–24 months, as the Federal Reserve (the US central bank) looks to keep its funds rates at 0–0.25% until the second half of 2013, and Japan’s overnight call rate (OCR; an uncollateralised fund transaction among financial institutions that matures the next day) will remain close to 0%. Low interest rates in Japan will continue to encourage the carry trade (whereby investors borrow in currencies subject to low interest rates and lend in currencies attracting higher ones, profiting from the difference). This should be a moderating influence on the yen’s strength.

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State role in the economy

Although Japan’s economic development is primarily the result of private entrepreneurship, the government has played a proactive role in developing new industries, cushioning the effects of economic depression, creating a sound economic infrastructure and protecting the living standards of the citizenry. The traditional alliance between business and government interests has largely faded since the 1990s—the result of the pressures of globalisation, deregulation and liberalisation. But the policies of the Ministry of Finance (MOF) continue to exert considerable influence on the economy. The ministry is responsible for all fiscal affairs, including preparation of the national budget. Apart from initiating fiscal policies, it also influences monetary policy through its indirect control of the Bank of Japan (the central bank). The MOF allocates public investment, regulates foreign exchange, formulates tax policies and collects taxes. The Ministry of Economy, Trade and Industry (METI) has a wide-ranging interest in Japanese industry and is probably the most influential ministry after the MOF. Nevertheless, globalisation has somewhat diminished the METI’s power to design and implement industrial policies. Waves of deregulation and liberalisation have also chipped away at its bureaucratic authority over industry; nevertheless, the ministry occasionally comes up with sweeping industrial-policy plans. One example is the so-called New Economic Growth Strategy approved by the Cabinet in June 2010, with the objective of doubling over the next ten years (2010–20) the flow of people, goods and capital to Japan. Part of this strategy was the proposed 5% cut in the effective corporate tax rate, income tax deductions for companies establishing their Asian headquarters in Japan and the establishment of comprehensive global strategic zones (also called special zones for international strategy), where foreign companies may be granted special incentives. However, many of these proposals, contained in the 2011/12 tax-reform package, had not been enacted by August 2011 and had been put in the backburner while Japan struggled to recover from the devastating earthquake and tsunami of March 11th 2011. The failure of the ruling Democratic Party of Japan to gain support for its agenda in the oppositiondominated upper house of the Diet (parliament) has also set back efforts to put the growth strategy fully in motion. Other ministries that can influence economic policy include the Ministry of the Environment; the Ministry of Health, Labour and Welfare; the Ministry of Internal Affairs and Communications; and the Ministry of Land, Infrastructure, Transport and Tourism. Japan is reforming its famed “descent from heaven” (amakudari) system. This tradition allowed retiring bureaucrats to jump to lucrative second careers in private-sector businesses under their jurisdiction. It has served as a revolving door for ministries to keep in close touch with, and sometimes even control, major industries. Businesses also have taken advantage of the amakudari arrangement, since it gives them important connections to the government. The practice has long drawn criticism as a symbol of collusion between the central government and private corporations, but such complaints have begun to be taken seriously only in recent years.

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An amendment of the National Public Service Act in June 2007 created a jobplacement agency in December 2008 for retiring bureaucrats: the Centre for Personnel Interchanges Between Government and Private Entities. The amending law bans ministries and all other government offices from brokering jobs directly for retiring officials; all such placements are now handled by the centre. In addition, the legislation bans officials from personally seeking jobs at companies that they have overseen. Nevertheless, some critics say that retiring bureaucrats have found other ways to evade the law. For example, former officials now in key posts in private corporations can still help their former colleagues gain employment in their companies. Although much of the Japanese economy is based on private enterprise, there are important government-owned corporations, which are more extensive and sometimes different in function from those in other industrialised countries. These companies are normally affiliated with one of the economic ministries, though the extent of direct management and supervision varies. The government divides them into several categories. The first includes the main public-service and monopoly companies, such as Nippon Telegraph & Telephone (NTT), Japan National Railways and Japan Tobacco. The second category includes development companies in housing, agriculture, highways, water resources, ports, energy resources and urban development. Other categories include those charged with special government projects, loans and finance, and special types of banking. There are also public-private enterprises that local governments partly own. Known collectively as the third sector, these enterprises are not well managed. Many ventures undertaken by the third sector, particularly those funded by the easy money of the bubble economy of the 1980s, have failed under piles of debt. The many third-sector companies that have gone bankrupt have added to the financial woes of several local-government administrations. Privatisation of state enterprises has been on the government agenda since the mid-1980s but received its biggest boost during the reform drive of the Junichiro Koizumi cabinet (2001–06). Legislation approved in July 2002 liquidated some 42 enterprises and transferred their operations to independent administrative entities. Legislation passed in 2003 and 2004 privatised four debt-ridden highway corporations and the main utility company. Since the privatisation of NTT in 1985—during which it was launched as a joint stock corporation—the government has disposed of NTT shares 12 times in various amounts, according to data from the company’s website. The latest of these share sales was held in July 2011, when the government sold 57.5m shares for ¥223bn on ToSTNET, the off-hour trading market of the Tokyo Stock Exchange. The series of share sales has reduced the government stake in NTT to 33.3% by August 2011, from 100% before the privatisation in 1985. However, further government disposals will need an amendment of the NTT Law of 1985, which requires the state to own at least a third of the company. However, plans to privatise Japan Post, the postal service that functions as Japan’s largest financial institution in terms of assets, have been postponed indefinitely. Japan Post was dissolved in 2007; in its place, Japan Post Bank,

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Japan Post Insurance, Japan Post Service and Japan Post Network were established as subsidiaries of Japan Post Holdings, a government-owned holding company. Under a privatisation plan approved by the Diet in 2005, the government was to sell all the banking and insurance subsidiaries during 2010. However, the legislature froze the planned share sale in December 2009. The Cabinet approved a proposal in October 2010 scaling back the reforms, allowing the government to keep more than one-third of Japan Post Holdings and to have veto power over any major changes in the entity. The proposal also calls for the reorganisation of the group into three entities by April 2012: Japan Post Bank, Japan Post Insurance and Japan Post Holdings. But the Diet had not approved the proposal by August 2011. The government combined the Japan Bank for International Co-operation, the Japan Finance Corp for Small Business, the National Life Finance Corp, and the Agriculture, Forestry and Fisheries Finance Corp into a single institution in October 2008, in advance of full privatisation by 2015. The merged entity, Japan Finance Corp, is wholly owned by the state, specialises in lending to the general public, small and medium-sized enterprises, and farm businesses. The Development Bank of Japan, which handles corporate loans, investments and other financing deals, was put on a privatisation course in October 2008, when it was converted to a joint-stock company. The government is to sell its 100% stake in the development bank between April 2017 and March 2019. In late March 2011 the minister of national strategy, Koichiro Gemba, raised the possibility of nationalising Tokyo Electric Power Corp (TEPCO), as the company faced mounting costs and public anger over the meltdown of its Fukushima Daiichi nuclear plant following the massive earthquake and tsunami in northeastern Japan. However, instead of a nationalisation law, Japan’s parliament enacted legislation in early August 2011 providing for a bailout scheme for TEPCO. Under the new law, a fund would be established backed by taxpayer money and contributions from other utilities to help TEPCO pay compensation to victims of the nuclear disaster. A senior official of the ruling Democratic Party of Japan also indicated in August 2011 that the government is considering cutting its stake in Japan Tobacco to one-third (from one-half) and selling some of its 33.3% stake in Nippon Telegraph and Telephone, a telecoms giant. Some lawmakers also floated the idea of selling the government’s 53% stake in Tokyo Metro, which operates the subway network in Japan’s capital, through an initial public offering. The asset sales were being contemplated to finance reconstruction following the earthquake and tsunami, and to avoid a government cash crunch in 2011. However, the possibility of immediate privatisation of these assets appeared remote after parliament approved a bill in August 2011 allowing the government to issue deficit-financing bonds to finance the budget for fiscal 2011/12 (April 1st–March 31st). The Fiscal Investment and Loan Programme (FILP), or zaito, is a government mechanism that channels cash from postal savings and public pension funds to special public corporations and other quasi-governmental organisations. The funds, administered by the Financial Bureau, are used to finance investment projects, loans and foreign aid. Known as Japan’s second budget, the FILP has

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long been criticised for lax fiscal discipline and wasteful fund management. In response to such criticism, the government introduced competitive principles into FILP management. Under a reform programme instituted in April 2001, the recipient institutions raise funds by issuing public-placement FILP agency bonds based on their own creditworthiness, and they cover fund shortages with borrowings from the FILP. The Industrial Revitalisation Law, enacted in 1999 and last revised in April 2009 has institutionalised government bail-outs of industrial companies. The law allows the government to provide restructuring support for troubled businesses via two recently created government-owned institutions: Innovation Network Corp of Japan (INCJ) and Enterprise Turnaround Initiative Corp (ETIC). INCJ was created in July 2009 to provide financial, technological and management support to investment projects that promote innovation in such areas as environment and energy, electronics and information technology, biotechnology and infrastructure. The INCJ is capitalised at ¥92bn, with ¥82bn provided by the government and the remaining ¥10bn by private companies. ETIC, created in October 2009, has a five-year mandate to help troubled companies by investing in and buying their debt, and dispatching turnaround specialists to help restructure these companies. The ETIC was capitalised at ¥20bn, half of which was provided by the government and the other half by more than 100 private financial institutions. Initially, it was meant to support small and mid-sized companies outside major cities, but the ruling Democratic Party of Japan expanded ETIC’s mission to support big companies as well. One of the first to obtain support from ETIC was Japan Airlines, which received ¥350bn in capital infusion in 2010. The public-sector Development Bank of Japan also has investments in a number of struggling high-profile companies such as Japan Airlines. Cashstrapped companies may receive funding from the Development Bank of Japan (DBJ) under co-financing arrangements with commercial lenders to execute turnaround plans. For example, the government decided in June 2009 to extend a ¥30bn lifeline to Elpida Memory (a struggling maker of memory chips) from the Development Bank of Japan in the form of preferred share purchases. But, no bailout scheme of a similar magnitude was extended by the DBJ in 2010. The government has for many years promoted deregulation in general, but changes have been piecemeal. Utility deregulation began with an amendment to the Electric Utility Law in March 2000 to liberalise retail sales of electricity to large-lot customers (such as department stores and other commercial buildings). With the launch of Japan Post Service in October 2007, mail-delivery services were opened to the private sector. Licences go to private courier companies for a limited range of mail delivery. Foreign businesses and governments continue to clamour for deeper and broader deregulation. The government’s answer to such calls has come in threeyear deregulation plans implemented since the 1990s. The Cabinet in June 2007 endorsed the latest of such plans, promoting deregulation on a broad range of areas from fiscal 2007/08 until 2009/10, including medical care, education, housing and international trade. The next deregulation plan had not been

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issued as at August 2011, but the Government Revitalisation Unit, a panel on regulatory reform, published an interim report in January 2011 calling for deregulation on 284 items. These include market reforms sought by the United States, such as simplified approval process for new drugs and food additives. So-called special deregulation zones, or tokku, were introduced in 2003 as enclaves free from central government interference, in diverse areas of commerce and public service such as energy, education and healthcare. But the record of accomplishment of these zones has been patchy. The zones do not involve fiscal measures, such as preferential tax schemes; rather they allow for easier operations because regular bureaucratic measures, such as employment rules or zoning laws, are relaxed.
Major state-owned industries, 2011
Company Bank of Japan Central Japan International Airport Deposit Insurance Corp Development Bank of Japan Japan External Trade Organisation Japan Finance Corp Japan National Tourism Organisation Japan Post Holdings Japan Tobacco Kansai International Airport Narita International Airport Nippon Export and Investment Insurance Nippon Telegraph & Telephone Shokochukin Bank Tokyo Metro
Source: Economist Intelligence Unit compilation.

Sector Finance Airport Finance Finance Trade Finance Tourism Finance/post Tobacco Airport Airport Finance Telecoms Finance Railway

State ownership (%) 55.00 39.99 94.40 100.00 100.00 100.00 100.00 100.00 50.00 66.66 100.00 100.00 33.30 77.54 100.0

Policy towards private enterprise
(score; 10=good)
G7 (av) 10.0 8.0 6.0 4.0 2.0 0.0 Japan

2006

07

08

09

10

11

12

Source: Economist Intelligence Unit.

Foreign investment

Japan has been actively promoting incoming foreign direct investment (FDI) since the 1990s, with various incentives for foreign companies. Japan imposes few formal restrictions on FDI. Cabinet ministries operate an in-house Invest Japan task-force to help foreign companies do business in Japan. The Ministry of Economy, Trade and Industry (METI) oversees FDI-promotion policy at the

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national level. Its trade and investment-promotion arm, the Japan External Trade Organisation (JETRO) provides “business matching” services to foreign companies, helping them identify potential business opportunities and local partners. METI and JETRO hold annual symposiums and seminars in cities abroad to promote investment in Japan. FDI promotion is an official policy at the local government level as well. Major cities and prefectures operate foreign-investor-relations programmes, which are also available online. The Tokyo Metropolitan Government operates a one-stop information portal catering specifically to the needs of foreign-affiliated companies (http://www.tokyo-business.jp). Osaka, Japan’s second-largest city provides support for foreign companies at the Osaka Business Investment Centre (http://o-bic.net). Similar regional support centres are available in other major cities. The New Growth Strategy approved by the Cabinet in June 2010 calls for, among other things, promoting inward investment into Japan in the next ten years, through 2020. Tax incentives approved in June 2011—for foreign companies establishing their Asian headquarters, research-and-development operations or setting up businesses in designated special zones for international strategy—were part of this strategy (see Incentives). The net flow of inward FDI (new investment inflows less disinvestment) for the 2010 calendar year plunged to a negative US$1.36bn on a balance-of-payments basis, from US$11.84bn in 2009 and US$24.6bn in 2008, according to JETRO. JETRO reports that the UK was the largest source of FDI during 2010, with a net inflow of US$4.8bn committed to Japan in 2010. The next top countries were the United States (US$2.96bn), Germany (US$2.2bn) and Singapore (US$1.58bn). These inflows were outweighed by huge outward FDI into such countries as the Netherlands, which received investment from Japan totalling US$7.7bn during 2010 and Mexico, which received Japanese investment totalling US$7.3bn during the year. The case with the Netherlands was a reversal of the data in 2009, during which it was the second-largest source of inward FDI into Japan, following the UK. The sectors that received the largest FDI in 2010 were transport-equipment manufacturing, general machinery production and the services industry. The value of the stock of inward FDI rose to US$214.7bn at end-2010 from US$200bn a year earlier, according to JETRO.

Recent foreign direct investment
Dou Yee International, a Singaporean investment holding company will invest about ¥1bn in the production of film liquidcrystal displays at a plant in Shobara City, Hiroshima, the Japan External Trade Organisation (JETRO) announced in July 2011. The company will also conduct research and development at the plant, which it selected and acquired with the help of JETRO. In April 2011 the project’s R&D component was selected as a beneficiary of the Japanese government’s Subsidy Programme for Projects Promoting Asian Site Location in Japan, which provides subsidies of up to ¥1bn for headquarters or R&D sites of high value-added businesses. Haier, a Chinese appliance giant, was reported in July 2011 to have agreed to purchase Sanyo Electronics’ washing-machine and refrigerator units in Japan and other south-east Asian countries from Panasonic (a Japanese electronics maker), for about US$130m (¥10bn). Among the units acquired by Haier were Sanyo Aqua and shares in Konan Denki, both makers of washing machines in Japan; Sanyo’s shares in refrigerator makers Haier Sanyo Electric and Haier Electric Thailand; and

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Sanyo units in Vietnam, Indonesia, the Philippines and Malaysia. With the transaction, Haier aims to gain wider access to the Japanese market for low-priced refrigerators, washers and air conditioners, according to news reports. The sale also fits Panasonic’s strategy to restructure businesses that overlapped with those of Sanyo Electric, its subsidiary. Earthquake Protection Systems (EPS), a US-based manufacturer of seismic isolation bearings, opened a subsidiary in Tokyo in June 2011 to bring its Triple Pendulum technology to Japan, according to JETRO. Triple Pendulum bearings can protect facilities such as power plants from damage from extreme earthquakes, JETRO said. The value of the investment was not disclosed. Teva Pharmaceutical Industries, based in Israel, said in May 2011 that it had acquired 57% of Taiyo Pharmaceutical, a generic drug company in Japan, for US$460m. With the acquisition, Teva said it aims to become a leading player in the Japanese generics market. Taiyo has more than 550 generic drugs and has a strong presence in all major distribution channels in Japan, particularly in hospitals, because of its wide range of injectable products, according to news reports. Carlyle Group, a US private-equity firm, announced in March 2011 that it had completed its purchase of a majority stake in Tsubaki Nakashima, which makes ball bearings, from a unit of Nomura Holdings, for US$800m. The deal gives Carlyle a 96.56% interest in Tsubaki Nakashima, which manufactures precision processing balls for bearings, sending screws, linear guideways and other general industry machinery.
Policy towards foreign investment
(score; 10=good)
G7 (av) 10.0 8.0 6.0 4.0 2.0 0.0 Japan

2006

07

08

09

10

11

12

Source: Economist Intelligence Unit.

International agreements

Japan is not a member of any regional market or trading bloc, but it is a party to the Asia–Pacific Economic Co-operation (APEC) forum and the Asia–Europe Meeting (ASEM) and participates in the annual summit meetings of these organisations. The APEC has a goal of APEC–wide free trade and investment by 2020. To this end, 42 bilateral and regional free-trade agreements (FTAs) had been established among APEC’s 21 member-economies by August 2011, according to the APEC secretariat. Japanese trade policy has traditionally focused on multilateral negotiations and dispute-settlement mechanisms, but there has been an increasing shift towards bilateral FTAs or economic partnership agreements (EPAs). By Japanese definition, an EPA is a broader concept than an FTA in that it covers the movement of people and capital as well as eliminating tariffs. Japan had 12 individual EPAs as at August 2011, with Brunei, Chile, India, Indonesia, Malaysia, Mexico, Peru, the Philippines, Singapore, Switzerland, Thailand and Vietnam and a comprehensive EPA with the Association of South-East Asian Nations (ASEAN; comprising Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Thailand, Singapore and Vietnam). The EPA with ASEAN is separate from the individual EPAs with some ASEAN

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member countries. At the same time, Japan was negotiating EPAs with Australia, Mongolia, South Korea and the Gulf Co-operation Council (a trade bloc made up of Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates). Japan’s reluctance to open its agricultural market is the biggest obstacle to moving forward on EPAs and FTAs. This is the main reason for the on-again-off-again trade liberalisation talks with South Korea, which have been stalled since 2008. Apart from EPAs and FTAs, Japan has bilateral investment treaties with more than 15 countries, including China and South Korea, to promote investment protection and national treatment. Japan is a member of all major multilateral economic organisations, including the International Monetary Fund, the World Bank, the World Trade Organisation, the World Intellectual Property Organisation and a host of specialised agencies of the United Nations. The country also participates actively in organisations grouping the world’s main economic powers. It has been a member of the Organisation for Economic Co-operation and Development (OECD), based in Paris, since 1964. It participates in periodic and annual meetings of the Group of Seven (G7; Canada, France, Germany, Italy, Japan, the United Kingdom and the United States) and the Group of Eight (G8; the G7 plus Russia). Japan is also a member of the Group of 20 (G20; the world’s 19 largest national economies plus the European Union), which focuses on global economic and financial issues.

Organising an investment
Basic investment approval The Foreign Exchange and Foreign Trade Law of 1997 governs Japan’s foreign direct investment (FDI) regime. The law established ex post facto reporting to the Bank of Japan (the central bank) as the norm for organising an investment in Japan. Prior notification (and thus case-by-case approval) is required for FDI in certain restricted sectors (see the box below for details). Some rules of the OECD Code of Liberalisation of Capital Movements may justify the restrictions. Foreign companies seeking to invest in these areas must notify the Ministry of Finance and other relevant ministries. These notifications may be made anytime during the six months prior to the inward FDI. The relevant ministry must review the prior notification within two weeks. During this examination period, the authorities can order changes deemed to be in the national interest. The review period may be completed as quickly as five working days but may last up to 30 days where investments affect protected industries, such as petroleum and leather. It is rare, however, for advance notifications to be rejected. The Foreign Exchange and Foreign Trade Law addresses specific categories of FDI, including the following: • transfer of ownership in non-public shares from residents to non-residents;

• foreign acquisition of shares publicly traded on the exchange and over-thecounter markets that results in a foreign stake of 10% or more;
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• establishment of a branch and change in the business content of an established branch; • loans of more than ¥200m to a Japanese business for longer than one year and not more than five years, and loans exceeding ¥100m to a Japanese business for longer than five years (yen loans from financial institutions as part of normal operations are not included); and • foreign acquisition of privately placed bonds with a maturity of more than one year issued by a Japanese business. Foreign companies are advised to engage in extensive consultations with the relevant ministries and industry players before undertaking investments. Even where reforms have lowered or eliminated barriers to entry, foreign investors must often deal with a closed system that resists foreign penetration. Such consultations may involve rival manufacturers that feel threatened by the new venture or representatives of industry groups. The METI and other agencies are sensitive to industry pressure, and some of the administrative guidance given to new investors reflects restrictions demanded by incumbent players and interest groups. Since these types of barriers limit domestic as well as foreign entry into certain business areas, it is worth considerable effort for the new investor to identify potential local allies. The Japan Fair Trade Commission can recommend against any investment that clearly violates national antitrust law (see Competition and price policies). The Anti-monopoly Law of 1947, last amended in June 2009, includes extensive antitrust provisions on international contract notification, shareholding, interlocking corporate directorates, and mergers and acquisitions (M&A). These provisions aim to restrict any joint venture, management, M&A and/or shareholding activities that would unreasonably restrain competition or involve unfair trade practices. The provisions are not supposed to discriminate against foreign companies or to discourage FDI. Foreign companies new to the market or already doing business in the country can obtain assistance from the Japan External Trade Organisation (JETRO), which is the trade and investment-promotion arm of the METI. JETRO has more than 70 overseas offices in more than 50 countries, in addition to a nationwide network connecting major cities. JETRO also operates one-stop business-support centres called Invest Japan Business Support Centres, in Fukuoka, Kobe, Nagoya, Osaka, Tokyo and Yokohama. These centres provide free temporary office space, business information and free consultation with experts who can provide advice tailored to the needs of a foreign company. JETRO provides what it calls the Trade Tie-up Promotion Programme, or TTPP, on its website (http://www.jetro.go.jp/ttppoas/index.html) to help foreign companies find local partners. TTPP is designed to identify local partners meeting the profiles of prospective foreign ventures in Japan. The system now covers business support and business tie-ups, establishment of offices and factories, import and export, investment and technology transfer. Similar FDI-promotion programmes are available at the local-government level. The Tokyo Metropolitan Government operates the Tokyo Business Entry Point

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(http://www.tokyo-business.jp/eng/entrypoint/index.html), a comprehensive one-stop enquiry service for foreign companies. The Osaka Business and Investment Centre (http://www.o-bic.net) provides a similar service in Osaka and is a joint venture between the Osaka prefectural government, the Osaka municipal government and the Osaka Chamber of Commerce and Industry. The central government set up Invest Japan offices as part of relevant ministries in 2003. These offices aim to assist foreign companies in business establishment, M&As and other investment procedures. All relevant ministries, including the Cabinet Office and the Ministry of Economy, Trade and Industry, have their own Invest Japan task-force. In the World Bank’s Doing Business 2011 report, Japan ranked 98th out of 183 countries for the ease in starting a business, down from 90th place in 2010. The report says that it takes eight procedures and 23 days to launch a business in Japan, compared with the OECD average of 5.6 procedures and 13.8 days. The number of procedures and days needed to launch a business did not change in 2011 from the 2010 ranking; it appears that Japan’s drop in the rankings was the result of other countries moving up while local conditions remained the same.

Investment-approval checklist
Foreign enterprises can enter Japan by establishing a representative office or a branch, or by incorporating a Japanese company. Procedures for establishing operations vary from one form of foreign investment to another. For example, notification to tax authorities is required at the branch and subsidiary level, but taxation is waived for representative offices. All forms are subject to registration and other procedural requirements under the general provisions of the Commercial Code and some specific rules of the Commercial Registration Law of 1963. The Commercial and Civil Codes cover such transactions as principal-agency relationships, contracts for business transactions, and contracts for sales and goods. The Commercial Code dictates that a foreign company must appoint a representative in Japan, establish a presence, register with the government and give public notice of its registration. Investment in the following restricted sectors requires prior notification to the Ministry of Finance (MOF), per the Foreign Exchange and Foreign Trade Law of 1997: aerospace, agriculture, aviation, broadcasting, defence, fisheries, forestry, leather manufacturing, maritime and rail transport, nuclear energy, petroleum, security, telecommunications and utilities. A foreign company is prohibited from doing business until it has met all requirements. Non-compliance can result in fines. Non-compliance does not invalidate the foreign company’s contracts with Japanese partners, however, and the foreign company still has the right to sue the Japanese partners or can be sued by Japanese partners in Japanese courts. A foreign company establishing a subsidiary must fulfil capitalisation requirements through a custodial account opened at a financial institution after adopting articles of incorporation. Foreign enterprises seeking to do business may also be required by pertinent laws to obtain business licences or permits, and to notify the authorities. Some examples include the following: • Banks need a licence from the MOF for each branch, under the Banking Law (1981) and the Trust Business Law (2004). • Commodity investment dealers and advisers need permits from relevant ministries with jurisdiction over the types of traded commodities, in accordance with the Financial Instruments and Exchange Law (2006). • Construction companies and real-property developers must obtain a permit from the Ministry of Land, Infrastructure, Transport and Tourism, in accordance with the Construction Business Law (1945). (If the company limits its presence to only one prefecture, a licence from the governor of that prefecture may replace the ministry permit.) • Hotels and restaurants require permission from the prefectural government, in accordance with the Hotel Business Law and the Food Sanitation Law (both of 1947). • Insurance firms need an MOF licence to establish a branch, in accordance with the Insurance Business Law (1995). • Businesses engaged in oil refining, oil import and sale of petroleum products require a permit from the Ministry of Economy, Trade and Industry (METI), in accordance with the Petroleum Business Law (1970).

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• • •



Pharmaceutical companies require a permit from the Ministry of Health, Labour and Welfare for each factory or office (for imports), in accordance with the Pharmaceutical Affairs Law (1960). Ministry approval is needed for each different item produced or imported. Large-scale retail stores must be reported to the METI or the prefectural government, in accordance with the Large-Scale Retail Store Location Law (1998). Securities firms need an MOF licence for each branch, and security-investment-advisory firms must be registered with the MOF for investment-advisory business, in accordance with the Financial Instruments and Exchange Law. Transport and warehousing companies require a licence from the Ministry of Land, Infrastructure, Transport and Tourism in accordance with the Maritime Transport Law (1949) and the Road Transport Law or the Port Transport Law (both of 1951), whichever applies to their business. Travel agencies must be registered with the Ministry of Land, Infrastructure, Transport and Tourism, in accordance with the Travel Agency Law (1952).

Acquisition of an existing firm

Regulators are taking steps to make the Japanese mergers and acquisitions (M&A) environment more efficient. High costs and cross-shareholdings had long kept most outsiders out of the local M&A market, and some observers still point to the transparency problem created by the unique Japanese corporate accounting system. In December 2009, for example, Japan’s Financial Services Agency (FSA) allowed listed companies voluntarily to start using the International Financial Reporting Standards (IFRS) prescribed by the International Accounting Standards Board (IASB) in their consolidated financial statements, beginning April 1st 2009. The Business Accounting Council, an advisory body to the FSA, in June 2009 proposed mandatory adoption of IFRS in Japan, from 2016. The FSA is to take a final decision on the matter by 2012. The Financial Instruments and Exchange Law (FIEL; enacted in June 2006 and implemented in September 2007), formerly known as the Securities and Exchange Law, governs takeover bids in Japan. The FIEL requires that a bidder seeking to acquire more than one-third of a target company by using a combination of on- and off-market purchases within a limited period must make a tender offer to all shareholders. The terms of the tender offer must apply equally to all shareholders during a bidding period of 20–60 days. The FIEL requires disclosure of information about the bidder and the target company. The target company has a right to question the bidder and the bidder is obliged to answer. The target business may be a company listed on the stock exchange, a company that has issued securities sold over the counter or any company with a duty to file a securities report. The target shares are equity instruments including common stock, convertible debentures, debentures with the rights to subscribe for new shares and instruments of pre-emptive rights of Japanese and foreign companies. Shares without voting rights are excluded. However, non-voting shares convertible into voting shares are included. Foreign shares issued by a foreign company that is required to file a securities report with the Japanese government are included. A 1999 amendment to the Commercial Code introduced a compulsory sharefor-share exchange transaction to make it easier to create holding companies. That provision can also be used for several other purposes, including the 100% acquisition of a company’s existing shares. It makes it possible for a parent company to force the minority shareholders of its subsidiary to submit subsidiary shares in exchange for shares of the parent, if approved by a

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supermajority vote of the shareholders of both companies. Compared with a simple share purchase, a share-for-share exchange under this system has two major advantages: first, it eliminates the need for cash and second, the seller can defer realising capital gains until it sells the shares of the parent company received in the exchange. It also lets the parties involved avoid cumbersome procedures for transferring assets and assuming liabilities that would otherwise apply in a business transfer. The revised Commercial Code has also allowed for mark-to-market accounting of acquired assets since April 1st 2000. The Industrial Revitalisation Law, in force since October 1st 1999, also facilitates M&As in Japan since it promotes business restructuring (by shifting management and other corporate resources to more-productive sectors) and technological innovation and diffusion to industry. Another amendment to the Commercial Code, implemented in April 2001, provides rules for companies seeking to re-organise through spin-offs. It lets merging companies spin off part of their business as a separate unit. The Company Law, enacted in July 2005 and implemented in May 2006, sets the rules for corporate takeovers. This law, which simultaneously changed the existing Commercial Code and applies in concert with the FIEL, provides a legal basis for US-style hostile-takeover defences, such as the “poison pill”, the “golden parachute”, the “shark repellent” and the “white knight”. The law also embraces other takeover-related techniques, such as hostile takeover bids by foreign companies or triangular mergers, to facilitate crossborder mergers. The latter measures, implemented on May 1st 2007, provides for foreign investors’ need to organise their investment in Japan through complex M&As. In a triangular merger, a subsidiary of the acquiring corporation merges with the target company and the subsidiary offers the parent’s shares in the transaction. In theory, the triangular merger strategy makes it easier for large foreign companies to conduct M&As in Japan. Nevertheless, obstacles such as cross-shareholdings usually lead foreign investors to opt for strategic partnerships with equity participation or co-operation agreements. The threat of hostile takeovers is also taken seriously by an increasing number of Japanese companies, and many have adopted poison-pill defences in recent years. Most M&As in Japan are friendly transfers of wholly-owned and majorityowned subsidiaries. Indeed, hostile takeovers in Japan are rare. Institutional opposition to hostile tender offers, particularly from foreign investment funds, runs high. Although there have been some examples of foreign companies trying to take over local companies, these have met with little success. The Ministry of Economy, Trade and Industry revised the rules governing acquisitions by non-Japanese buyers of more than 10% of domestically listed companies with technology that can be used in weapons systems. The rules, implemented in September 2007, cover 137 products (including technologies involving batteries, semiconductors and titanium) and require foreign investors to notify the government 30 days before buying a stake of 10% or more in quoted companies. In the financial sector, the acquisition of more than 20% of a Japanese bank requires approval from the FSA.

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Two government-run agencies offer support for foreign companies or investors seeking to acquire existing companies: Japan External Trade Organisation and Development Bank of Japan. The latter’s M&A-support programme includes a financing package based on long-term loans at discounted fixed-interest rates. Certain M&As involving Japanese companies must also be reported to the Japan Fair Trade Commission (JFTC) under the Anti-monopoly Law. A merger must be reported to and approved by the JFTC if the acquiring company or corporate group has a total domestic turnover of at least ¥20bn and the target company or corporate group has consolidated domestic turnover of at least ¥5bn. (Before an amendment to the Anti-monopoly Law in June 2009, the minimum thresholds were on the basis of the total assets of the acquirer and the target of acquisition.) The same notification thresholds apply to both Japanese and foreign corporations. The concept of a corporate group was introduced in the 2009 amendment—it refers to a group of corporations consisting of the parent company of the acquirer and its subsidiaries. A corporate combination within the same corporate group will be exempt from notification requirements. There are no reporting requirements that apply to interlocking directorates. If a tie-up is subject to reporting under the Anti-monopoly Law, it must be reported to the JFTC at least 30 days in advance. The parties to a proposed merger can consult with the JFTC to determine the likelihood of problems in gaining approval. The JFTC must inform the parties of any problem within 30 days of being notified. For share acquisitions, notification requirements are triggered when a corporate group’s ownership of voting shares in a Japanese company rises above 20% and 50%. This must also be reported to the JFTC at least 30 days in advance. The 2009 amendment also introduced domestic turnover tests in the place of asset thresholds, aligning the Japanese merger-control rules more closely with international standards. (See Mergers in Competition policy section.)
Setting up a new business
(score; 5=low regulation)
G7 (av) 5.0 4.0 3.0 2.0 1.0 0.0 Japan

2006

07

08

09

10

11

12

Source: Economist Intelligence Unit.

Building and related permits

An investor seeking to build in Japan needs permission from prefectural and local authorities, whose primary concerns are industrial zoning and land-use planning. The national government also has a say in construction permits that might involve environmental regulation. Plant-construction regulations in the

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Factory Location Act of 1973 limit the size of production facilities, require green areas and set other limits. For instance, the combined area of production facilities must not exceed 15–40% of the entire factory premises, which varies by industry. Foreign companies do not face any special restrictions. Regional regulations limit factory construction in metropolitan areas with different restrictions for different industries. Furthermore, zoning regulations under the City Planning Act of 1968 and the Building Standards Act of 1950 allow city planners to restrict factory construction in certain city zones. Queries about zoning regulations and building requirements should go to the Ministry of Economy, Trade and Industry at the national level and to prefectural governments at the local level. Japan’s zoning laws generally give local officials and residents considerable discretionary authority to screen almost all aspects of a proposed building. These factors effectively reduce the real property available for development and often lead to construction delays and higher building costs. In the World Bank’s Doing Business 2011 report, Japan ranked 44th out of 183 economies in the ease with which a business can obtain construction permits, slightly down from 43rd place in the 2010 report. It takes 15 procedures or steps in 187 days to obtain construction permits in Japan (unchanged from 2010), compared with the OECD average of 15.8 procedures and 166.3 days, according to the 2011 report.

Holding patterns
Nokia (Finland), a mobile-phone maker, shut down the last two of its handset retail outlets in Japan in August 2011, marking its exit from the Japanese cell-phone market now dominated by smartphones of Apple (US) and various Asian companies such as Samsung (South Korea) and Sharp (Japan). News reports said Nokia closed its stores at Tokyo’s Shibuya and Ginza districts, which had sold its high-end Vertu handsets for several years. Nokia’s Tokyo office, however, will remain open until the end of 2011 to handle fee refunds and other matters. According to Zacks Equity Research, a US research firm, sales of the Nokia handsets have suffered in Japan and elsewhere since Apple’s iPhone and cheaper versions developed by other companies and running on the Android software developed by Google were launched into the market in 2007. In late 2011, Nokia plans to launch smartphones running on Windows Phone 7, an operating system developed by Microsoft (US), to compete with the Android smartphones. American International Group (AIG) sold its two Japanese life insurance units, AIG Star Life Insurance and AIG Edison Life Insurance, to Prudential Financial (a US insurer) for US$4.8bn in September 2010.

Environmental law

Pollution and environmental protection are increasingly important public concerns in Japan. The following ministries are the major architects and enforcers of environmental law at the national level: Ministry of the Environment (MOE); Ministry of Economy, Trade and Industry (METI); Ministry of Health, Labour and Welfare; and Ministry of Agriculture, Forestry and Fisheries. The MOE, set up in 1971, co-ordinates policies and budgets, sets various environmental standards, and handles environmental issues such as air and water quality, chemical controls and waste management. The METI is involved in a broader environmental agenda including energy conservation and Japan’s participation in climate-change efforts. In addition, the Ministry of Internal Affairs and Communications has jurisdiction over the Environmental Dispute Co-ordination Commission, established in 1972 as a mediation body to resolve environmental disputes between polluting companies and victims.

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Environmental regulations and programmes vary from one local government to another. For instance, Shiga and Nara prefectures in western Japan started levying surcharges on industrial waste in 2004. Each prefecture collects ¥1,000 per tonne of industrial waste discharged in its territory. The Basic Environment Law, implemented in November 1993, provides the basis for environmental regulation in Japan. It sets the basic principles of environmental policy, defines the responsibilities of each economic player and sets the policy instruments to protect the domestic and global environment. The law preserved the earlier role of regional and local governments in their own jurisdictions; it also places on them a direct responsibility for global issues, such as ozone depletion and global warming. The law led to the establishment of the Basic Environment Plan in December 1994, which set the directions of long-term environmental policy. The most recent plan, the Third Basic Environment Plan, was adopted in April 2006. The Basic Environment Law prescribes the following measures as its permanent features: environmental consideration in policy formulation; environmentalimpact assessment for development projects; and social infrastructure improvement (such as sewerage and transport systems). Other major environmental laws include the Air-Pollution Control Law of 1968, the WaterPollution Control Law of 1970 and the Environmental-Impact Assessment Law of 1997 (all under the MOE’s jurisdiction). Air quality. At the United Nations Kyoto Framework Convention on Climate Change, held in December 1997, Japan agreed to reduce greenhouse-gas emissions by 6% (from 1990 levels) during 2008–12. The country ratified the resulting Kyoto Protocol in June 2002; after some delay, it came into force in February 2005. In April 2005 the Cabinet approved a new programme to implement Japan’s commitment under the Kyoto Protocol. It set emissions-reduction targets for major industrial sources, including a 16.1% cut in the energy sector, to achieve an overall reduction in industrial emissions by 8.6%, from 1990 levels, by 2010. In June 2009 Taro Aso, then the prime minister, announced a plan to reduce Japan’s greenhouse-gas emissions by 15% from 2005 levels by 2020. The midterm target represents an 8% cut in emissions from levels in 1990, the base year used in the Kyoto Protocol. Japan’s next prime minister, Yukio Hatoyama, in September 2009 proposed an even-bolder target, calling for a 25% reduction from 1990 levels by 2020 if other major emitters, such as the United States and China, agreed to similarly ambitious targets. However, a bill that would have enshrined the target in law was not approved before parliament was dissolved in June 2010. The succeeding government of Naoto Kan, who became prime minister in June 2010, also failed to obtain approval of the bill in 2011 because of the opposition’s control of the upper house. However, a few days before Mr Kan resigned in late August 2011, the Japanese parliament enacted a feed-in tariff legislation that he had strongly promoted, and which would oblige utilities to buy electricity from all types of renewable source. The Act on Special Measures Concerning New Energy Use by Electric Utilities (also known as the Renewables Portfolio Standard Act or RPS Act) enacted in 2002 already established the minimum amount of electricity generated from

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renewable sources that should be used by ten electric utilities. The feed-in tariff law passed by parliament in August 2011 requires independent power producers (IPPs), not only the ten power companies, to also buy electricity from renewable sources. A parliament-appointed panel scheduled to meet in early 2012 will set the prices for each type of green energy in the next 20 years, to guarantee power producers pre-set returns, and encourage them to invest in renewable energy sources. The new law, and related legislation, are to go into force in July 2012. The Law Concerning the Rational Use of Energy (known as the Energy Conservation Law) of 1979 requires factories and office buildings to put in place energy-conserving measures. Companies must submit their energy conservation and carbon-dioxide emissions-reduction plans to the METI for approval on a regular basis. Clean-air legislation has also advanced at the local government level. The Tokyo Metropolitan Assembly approved a conditional ban on diesel-powered commercial vehicles from the streets of Tokyo as from April 2001. The measure, the first of its kind in Japan regulating emissions from diesel-powered vehicles, bars them from traffic unless they meet certain emissions standards for carcinogenic particles. Chemicals in Japan are regulated by the Chemical Substances Control Law, enacted in 1973 and amended a number of times since. The law, under the METI’s jurisdiction, has rules on chemical controls to prevent human-health consequences and chemical hazards. The Industrial Safety and Health Law of 1972 also contains chemicals regulation, but its focus is occupational safety. The MOE has jurisdiction over the Law on the Evaluation of Chemical Substances and the Regulation of Their Manufacture of 1973, which administers the national inventory of new industrial chemicals introduced into the country. The MOE must be notified of when new chemicals are created or imported into Japan. The law was last amended in May 2009 to expand the notification requirement to existing chemical substances—that is, the 20,000 substances in existence when the law came into effect in 1973. Under the amendment, notification is required for the manufacture or import of any of these known substances if the quantity exceeds a prescribed threshold. Waste reduction and disposal. Major legislative moves in recent years require manufacturers to reduce waste and to dispose of it adequately. Amendments to the Waste Disposal and Public Cleansing Law and the Law to Promote the Development of Specified Facilities for Disposal of Industrial Waste, implemented in April 2001, stipulate that sources of waste (manufacturers, distributors and others) are accountable for waste management through final disposal. They are subject to penalties if waste originating from their sources is found to have been dumped illegally. A law on reducing food waste, implemented in April 2001, imposes curbs on waste generation by food manufacturers, distributors, hotels and restaurants. A measure to promote the reuse and recycling of cars, consumer electronics, personal computers and other appliances came into force in April 2001 via the revised Law for the Promotion of Utilisation of Recyclable Resources. The

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amendment broadly stipulates that manufacturers of durable consumer goods and packaging materials should make their manufacturing processes more environmentally friendly. A recycling law with more specific and far-reaching effects also came into effect in April 2001. The Law for Recycling of Specified Kinds of Home Appliances (the Home Appliances Recycling Law) targets the following consumer products for mandatory reuse and recycling: air conditioners, refrigerators, televisions and washing machines. These account for around 80% of all consumer appliances produced in Japan. The law requires manufacturers, importers and retail distributors to collect and recycle these items at the end of their lifecycle from consumers; in the past, local governments had usually borne this obligation. A December 2008 amendment to the law added clothing dryers and LCD/plasma televisions to the list of recyclable appliances. In June 2006 the parliament approved an amendment to environmental laws to promote the collection of chlorofluorocarbons (CFCs) from scrapped air conditioners, refrigerators and other appliances by raising the ratio of CFC collection from scrapped appliances to 60% (from 30%). Environmental standards. Japan continues to work towards adopting standards developed by the International Organisation for Standardisation (ISO) based in Geneva. The ISO 14000 series of standards, which provides a platform for companies to demonstrate their commitment to environmental protection, requires them to undertake a full range of environmental engineering, design and management activities, including environmental-impact studies. Environmental accounting. The MOE published non-binding guidelines in May 2000 on environmental accounting. These describe costs involved in various corporate environmental programmes on the “liability” column of the environmental balance sheet and dollar-for-dollar effects of environmental improvement to reduce pollutant emissions and waste generation and generate smaller utility bills. In response to tougher environmental regulations, more Japanese companies are adopting environmental-accounting practices, beginning by revealing their spending on related programmes in their financial statements. Hitachi, Toshiba and other leading consumer-electronics groups were among the first Japanese companies to publish environmental data on their books. Many more companies have since published similar data. Major retailers, too, have begun to take environmental accounting seriously, since implementation of the Large-Scale Retail Store Location Law in June 2000. The law, intended to make it easier to open bigger stores by doing away with previous expansion and operation rules, requires local authorities to examine environmental-protection measures proposed by store operators before a new outlet may be built. The law applies to stores with floor space exceeding 1,000 square metres. Acquisition of real estate The Foreign Exchange and Foreign Trade Law of 1997 requires that a nonresident foreign national acquiring real property in Japan for a purpose other than residency notify the Ministry of Finance. No special restrictions apply to purchases of land by foreigners.

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Foreign companies and joint ventures are free to purchase land or buildings if their investment has been validated, and if the land and buildings are for business use. In practice, foreign companies usually negotiate these purchases before investment (and include this information in the investment application or notification). The actual purchase occurs only after the project is validated. Central and local governments provide information on available space in industrial parks and terms of sale or rent for foreign investors. The Organisation for Small and Medium Enterprises and Regional Innovation, which develops public industrial parks throughout the country, is the most important source of assistance for foreign investors acquiring land. The Japan External Trade Organisation works closely with the organisation to provide early-stage support for foreign investors. Japanese land prices had dropped for years following the collapse of the realproperty bubble in the early 1990s, leaving huge piles of bad loans in the banking sector and crippling the economy for a decade. Prices began picking up in the mid-2000s, partly because foreign investors poured money into urban developments. But the upturn was short-lived; the global financial crisis shook the market in 2008, and land prices fell again, after three years of increases. Average land prices in Japan fell by 3.1% in 2010, compared with 2009 prices, following a 4.4% decline in 2009, according to an annual survey (conducted at the beginning of each year) by the National Tax Agency (NTA). The cost of a land plot in Tokyo’s upscale Ginza shopping district dropped by 5.2% in 2010, though it is still the most expensive area in Japan, at ¥22m/square metre, according to the survey. The survey reports that property prices in Tokyo and its neighbouring prefectures fell by 2% in 2010, a slowdown from a 7% decline in the previous year. Land prices near Osaka, in western Japan, dropped by 3.4% in 2010, following a 6.1% fall in 2009. The NTA survey was conducted before the massive earthquake and tsunami in northern Japan on March 11th 2011; Japan’s land ministry estimated in May 2011 that land values in more than twothirds of the country may have declined following the disasters. Tokyo remains the most expensive city in Asia for expatriates, according to Mercer, a US-based human resources consultancy, in July 2011. Osaka ranked second-most expensive city in Asia, according to the survey, which measured the comparative cost of over 200 items, including housing, transport, food, clothing, household goods and entertainment in 214 cities across the globe. In the World Bank’s Doing Business 2011 report, Japan ranked 59th out of 183 countries in terms of the ease with which businesses can secure the rights to property, down from 53rd place in 2010 According to the report, it takes six procedures or steps, and 14 days to register property in Japan (unchanged from 2010), compared with the OECD average of 4.8 procedures and 32.7 days. Establishing a local company Foreign entities doing business in Japan are subject to registration and other procedural requirements stipulated by the general provisions of the Commercial Code and specific rules of the Commercial Registration Law under the jurisdiction of the Ministry of Justice. The Commercial Code is a mixture of local and Western law that prescribes how businesses take shape and operate.

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The law classifies businesses into two categories: corporations and partnerships (kumiai). There are several different types of corporations; joint-stock companies (kabushiki kaisha—KK) are the dominant form of doing business in Japan. The Company Law, enacted in July 2005 and implemented on May 1st 2006, fundamentally changed the principles of forming corporate entities. First, it abolished one of the most common types of corporate entities in Japan, the limited company (yugen kaisha), and in its place established the limited-liability company (godo-kaisha or LLC). Japanese LLCs are taxed as corporations: profits are taxed at corporate tax rates, and dividends at personal tax rates. Second, the law eliminated the statutory ¥10m minimum paid-in capital requirement for a joint-stock company; hence, anyone can incorporate a company with capital of as little as ¥1. The Company Law also eliminated regulatory requirements for the management structure of a joint-stock company, such as the minimum number of directors. A foreign company establishing a subsidiary company in Japan must choose to establish the subsidiary as a KK, LLC or a similar entity stipulated by the Company Law. All types of subsidiary companies can be established by completing the required procedures stipulated by law and then registering the corporation. Notification to the Bank of Japan (the central bank) is also necessary for joint-stock companies and branches. Most major foreign investors adopt the KK form, though this has some complicated requirements. Setting up a wholly-owned subsidiary is an effective way to guarantee better protection for proprietary information, obtain credit and penetrate markets with subtle but substantial barriers to imports. Moreover, there is a perception in Japan that a company with subsidiaries is both more committed and more substantial; this can be a strong selling point for that company. The Company Law granted corporate status to both unlimited partnerships (gomei-kaisha) and limited partnerships (goshi-kaisha). A limited partnership has at least one limited partner liable only for the amount individually invested in the partnership. Partnerships are preferred by small businesses because they are easier and cheaper to organise and operate than joint-stock companies. It is also possible to do business by using a yugen sekinin jigyo kumiai. This type of entity, considered the Japanese version of a limited-liability partnership (LLP), is not a corporation but a partnership formed only by the equity participants, who have limited liability. LLPs are also distinguished by the fact that internal rules can be freely determined by agreement among the equity participants and that taxes are levied on profits allocated to equity participants, with LLPs treated as pass-through entities. Other forms of partnerships available under the Commercial Code are silent partnerships called tokumei kumiai, as opposed to general partnerships, or nin-i kumiai, set up under the Civil Code. The tokumei kumiai is based on a contractual agreement whose terms require the “silent” or “limited” partners to contribute monetary or other assets to the partnership. The investors’ liability in the nin-i kumiai is unlimited; hence, they assume all the risks arising from the partnership’s business.

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Other methods by which a foreign company may invest in Japan include establishing a joint venture with a Japanese enterprise or investment company, and by equity participation in a Japanese enterprise. When payment for shares is in cash, the company must deposit the funds in a bank and show evidence of the deposit before incorporation is granted. Boards of 6–10 members are common, and for a joint venture, the representation of the parent companies is usually in proportion to their equity. Foreign companies holding only 49% equity have sometimes been able to appoint half the board. The following is a general flow of procedures for establishing a joint-stock corporation, according to the Japan External Trade Organisation: (1) determination of the corporation’s profile, such as trade name, location of head office, business objectives, business year, amount of capital, issue price of shares, and names of directors and their terms; (2) examination at the Legal Affairs Bureau of similar corporate names; (3) preparation of articles of incorporation; (4) acquisition of registration certificates for the parent company and preparation of affidavits regarding the parent’s corporate profile (the affidavits must be attested to by a public notary in the equity participants’ own countries); (5) notarisation of the articles of incorporation by a Japanese notary public; (6) application to a bank for capital custody and issue of a capital custody certificate; (7) remittance of the joint-stock corporation’s capital to a special bank account; (8) appointment of directors and other officers; (9) examination by directors and auditors of the legality of establishment procedures; (10) application to the Legal Affairs Bureau for registration of the joint-stock company, and registration of the company seal with the same bureau; (11) acquisition of certificate on registered information and companyseal registration certificate (about two weeks after application); (12) opening of a bank account under the company’s name; and (13) notification to the Bank of Japan (central bank) regarding equity participation. Establishing a branch Foreign companies typically choose a branch office or a subsidiary company as a way of establishing business operations in Japan, whereas partnerships are more common among investment funds. The simplest way for a foreign company to establish a base for business operations in Japan is to set up a branch office. A branch office may begin business operations after registering its establishment with the Bank of Japan (central bank). A branch office does not have its own legal corporate status; instead, it is deemed to be within the corporate status of the foreign company. In general, the foreign company is thus ultimately responsible for all debts and credits generated by the activities of its Japanese branch office. However, a Japanese branch office may open bank accounts and lease real property in its own name. Foreign companies planning to do business in industries deemed sensitive or important to national security should notify the Ministry of Economy, Trade and Industry of their business and financing plans at any time in the six months prior to forming a branch; they should also notify the Ministry of Finance (MOF). A branch depends on its foreign parent for its supply of capital; the authorities may thus be less open to a branch than to a joint-stock company, fearing that a branch might be only temporary and might, for example, leave Japan without

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settling its debts. Moreover, other domestic companies, especially banks, are somewhat cautious about Japanese branches of foreign companies. The taxation of a branch and a joint-stock company is similar in most respects, including the corporate tax rate. The transfer of operational funds to a branch from its head office is usually unrestricted and is not subject to withholding tax. The Company Law, enacted in July 2005 and implemented on May 1st 2006, entailed simultaneous changes to many existing laws, including a controversial provision in the Commercial Code. Known as Article 821, the provision introduced the concept of “quasi-foreign corporations”—that is, foreign corporations incorporated outside of Japan but doing most of their business in the country. This category includes brokerage firms, foreign investment banks, investment companies, law firms, trading companies and other businesses incorporated offshore to take advantage of tax concessions and to side-step Japanese regulations. Article 821 outlaws these quasi-foreign corporations in principle, but offers relief to foreign companies by, in effect, exempting them from the need to shut down existing Japanese operations or reincorporate as a permanent-establishment business entity. The article contains a provision that extends to quasi-foreign corporations the same treatment that applies to Japanese companies, requiring them to pay taxes not only on their operations in Japan but also in other countries. The rationale behind clamping down on quasi-foreign corporations is that in order to conduct business in Japan, foreign companies should have clearly defined corporate status. The following describes the general procedures for establishing a branch, according to the Japan External Trade Organisation: (1) determination of the information to be registered (with reference to the foreign company’s articles of incorporation, registration certificate and other documents) and branch details such as address and representative in Japan, date of establishment of the branch and disclosure method for balance sheets; (2) examination at the Legal Affairs Bureau for similar corporate names; (3) establishment of the branch office; (4) preparation of affidavit on establishment of a branch office; (5) certification of affidavit by consulate or embassy in Japan; (6) application with the Legal Affairs Bureau for registration of the branch and registration of company seal; (7) acquisition of certificate on registered information and company-seal registration certificate (this takes place about two weeks after application for registration); and (8) opening of a bank account under the name of the branch office.

Requirements of a joint-stock company (kabushiki kaisha—KK)
Capital. The Company Law, created in June 2005 and implemented in May 2006 with simultaneous changes to the Commercial Code, removed paid-in capital requirements for incorporation (¥10m for joint-stock companies and ¥3m for limited companies). Hence, it is possible to incorporate a joint-stock company (KK) with an initial share capital of just ¥1. Founders, shareholders. Minimum one; may be natural or juridical persons; need not be Japanese citizens or residents. Founders must sign the articles of incorporation, but so may residents holding power of attorney for overseas interests. Since shares may be transferred from original subscribers immediately after incorporation, lawyers and others involved in the incorporation may act as founders.

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Board of directors. The Company Law eliminated the requirement that a KK should have at least three directors. There are no specific nationality or residence requirements, though the Ministry of Economy, Trade and Industry (METI) generally recommends that Japanese/foreign joint ventures give the Japanese side directorship representation at least in proportion to its shareholdings. The board of directors must have at least one executive-director participating in management. Management. The Commercial Code limits the authority of the company chairman and president by requiring all directors to participate in decision-making on important matters (for example, disposition of major assets; large borrowings; hiring or dismissal of managers; and establishment, alteration or liquidation of business). Each director can call for board meetings. Labour need not be represented in management or on the board. Since April 2003 the Commercial Code has required all large corporations (those with more than ¥500m paid-in capital, public or private) to adopt a US-style corporate-governance system based on three board committees: nomination committee, compensation committee and audit committee. Each board must include outside directors as majority members. Disclosure. Financial statements (usually prepared by a licensed accountant or lawyer and signed by a representative director) must be made to the tax authorities within two months of incorporation (three months if an extension application is filed in a timely manner) and annually thereafter. Shareholders must receive an annual report containing a balance sheet and a profit-and-loss statement, and also information about the following: condition of subsidiary companies; comparison of business results for the past three years; analysis of the company’s future prospects; and a list of the largest shareholders. A group of shareholders owning at least 10% of the issued shares has the right to inspect the accounts. Auditors. Outside certified public accountants must audit the financial statements of large companies (those with more than ¥500m paid-in capital, public or private). Statutory auditors (appointed by the company) can supervise the board’s performance, demand full business reports from subsidiaries and management, and call directors’ meetings if a director is believed to be engaged in any activity outside the scope of the company’s business. To strengthen the independence of the auditors, the Commercial Code requires their remuneration to be stated in the articles of incorporation or set by a resolution adopted at a shareholders’ meeting. Taxes and fees. Registration tax is proportional to paid-in capital (including subsequent increases with a minimum of ¥30,000). It is charged at the rate of 0.7% of capital, with a minimum of ¥150,000 for the incorporation of a KK. Bank commissions and legal fees vary with the size of the company. Types of shares. Virtually all types of shares may be used, but preferred non-voting shares are limited to one-third of all issued shares. Directors may veto share transfers. Corporations usually issue standard, registered, full-voting shares, with no preference, conversion or cumulative provisions. A revision of the Commercial Code, which has been in force since October 2001, abolished the previous minimum-share-price requirement. New and existing companies may now issue shares valued at any amount, even ¥1. A later amendment of the Commercial Code, implemented in April 2002, allows companies to create various new types of shares, such as shares with voting rights only on specific matters or ordinary shares without voting rights. Control. Shareholders’ and directors’ meetings may be held in Japan or abroad. At least one ordinary meeting of shareholders must be held annually, within three months of the close of the corporation’s financial year. Extraordinary meetings of shareholders may be convened upon demand by shareholders holding at least 3% of total issued shares continuously for six months. The Commercial Code gives shareholders owning at least 300 shares or at least 1% of a company the right to make management proposals, suggest agenda items at shareholders’ meetings and demand explanations from directors or statutory auditors. A quorum at a shareholders’ meeting is more than 50% of the issued shares, and resolutions are adopted by majority vote of the shareholders present. The quorum requirement may be waived in the articles of association for ordinary resolutions, though the minimum quorum for electing directors is one-third of the shareholders. Proxies may be issued, but they must be made out separately for each meeting. Since April 2002 the Commercial Code has allowed companies to offer shareholders the option of voting over the Internet.

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Human resources
Overview The Japanese workforce is highly educated and disciplined. More than half of the high-school population proceeds to higher education at junior colleges and universities, according to the Ministry of Education, Culture, Sports, Science and Technology. Workplace absenteeism is not a problem, though turnover is on the rise as part of a long-term trend towards more job mobility. Job-hopping is still frowned upon, but is not uncommon in the early part of a professional career. Japan’s labour and management system traditionally featured lifetime employment, paternalism in the form of elaborate fringe benefits and wage structures based on length of service rather than performance. (The same is true for the public sector.) But most Japanese companies are finding this system increasingly difficult to sustain. As the Japanese workforce ages, payrolls based on length of service become very costly to maintain. Expensive fringe benefits add to the burden. But changing the social contract of lifetime employment has been difficult because it is an integral part of the Japanese economic system. The result is a massive number of unneeded workers in virtually every industry. Layoffs are difficult and costly because of social constraints, and most big companies are reluctant to lay off workers outright. They prefer to reduce their workforce by attrition and early-retirement programmes, though they sometimes add an element of coercion by assigning unwanted workers to dead-end jobs or giving them nothing to do. These redundant workers often face elaborate forms of harassment from management—and even from their colleagues. The rigidity of the corporate job market is partly offset by the growing presence of non-regular and part-time workers willing to work for less pay with no job security at all. They are the first to be let go in tough economic times. Many young Japanese are voluntarily rejecting conventional jobs by settling down for a freer lifestyle of drifting between marginal and temporary jobs. They are known in Japan as NEET, the acronym for Not in Education, Employment or Training, or “freeters”. Temporary-employment firms (hakken gaisha) catering to this segment of the workforce have grown in number. The NEET phenomenon adds to the difficulty of reinvigorating the local economy. Foreign companies have become increasingly popular places to work— especially among younger people. Some of these companies turn to professional placement agencies that typically work on a contingency basis, with fees of 25–35% of the annual salary of a candidate hired. A governmentrun employment agency known as “Hello Work” offers placement support for people looking for jobs and helps employers find workers; the agency covers all industries. As at June 2011 the unemployment rate had mostly declined since November 2010, in a sign of improving economic conditions since the 2008–09 global financial crisis. According to the Statistics Bureau of the Ministry of Internal Affairs and Communications, the seasonally adjusted unemployment rate for June 2011 was 4.6%, down from 5.2% in June 2010. In June 2011, 60.02m

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working-age people had jobs, up by 30,000 or 0.1% from a year ago. A total of 2.93m were unemployed in June 2011, down from 3.29m a year earlier. Labour law Japan has a number of laws pertaining to labour and the protection of workers. These include the following: the Labour Standards Law of 1947, which set the minimum standards on working conditions; the Minimum Wage Law of 1959, which established the process for setting the minimum wage; and the Industrial Safety and Health Law of 1972, which set the minimum standards on working conditions regarding health and safety. These laws apply in principle to all enterprises in Japan, regardless of whether the employer is Japanese or foreign, or the company is a foreign or Japanese-registered corporation. They also apply to foreign workers in Japan if the foreign workers meet the definition of workers under these laws. Additional important legislation includes the National Health Insurance Law of 1922, which enforces universal health insurance coverage; the Labour Relations Adjustment Law of 1946, which specifies labour-management adjustments and means of resolving disputes; the Workers’ Accident Compensation Insurance Law of 1947, which requires employers to insure workers with premiums borne entirely by the employer; the Labour Union Law of 1949, which guarantees workers the rights to organise, bargain collectively and act collectively; the Welfare Pension Law of 1954, which stipulates requirements for pension contributions from employers and employees; and the Equal Employment Opportunity Law of 1986, which guarantees equal opportunities for female employees. The Equal Employment Opportunity Law requires employers to advertise jobs equally to men and women, and it outlines conditions for women’s employment. Although the law paved the way for women to advance their careers in large corporations, the number of female board members of major companies is negligible, even compared with most other Asian countries. An April 1999 amendment to the law requires employers to prevent sexual harassment at work. An April 1999 amendment to the Labour Standards Law abolished regulations that restricted women from working overtime or late at night. In the same month, a family-care-leave law was enacted that prohibits employers from refusing to allow employees to take leave to care for sick family members. The law decrees that employees may take unpaid leave of up to three months without risking their jobs. Other laws covering human resources include the Job Security Law of 1947, the Law Promoting Employment of the Handicapped of 1960, the Domestic Labour Law of 1970 and the Law on Employment Security for Elderly Workers of 1971. The Ministry of Health, Labour and Welfare also publishes a variety of administrative guidelines on issues such as applying and interpreting labour laws and enforcing safety rules in the workplace. Japanese law guarantees the right of its labour unions to carry out their activities. Employers are not allowed to employ a person on the condition that he/she does not join a union, and they may not cause any disadvantage to an

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employee because he/she is a union member. Furthermore, no company may refuse its trade union’s request for collective negotiations without due cause. Most trade unions in Japan are company based because of the country’s traditional lifetime, seniority-wage employment system and lack of significant job mobility. Industry-wide unions are actually federations of such companybased unions. The union-shop system often determines union-member and employee status, but it is often not strictly implemented. Most enterprise unions cover a range of regular employees, including blue- and white-collar workers. Union dues are generally collected through a check-off system with employers deducting dues from wages. Union officials almost always retain their status as company employees. Unionism has declined over the past two decades, though it rose marginally in 2009, from 2008. The number of union members climbed to 18.5% of the total employed at end-2009 and end-2010, from 18.1% at end-2008, but this was still sharply off a peak of 55.8% of all employed at end-1949, according to the Basic Survey on Labour Unions conducted by the Ministry of Health, Labour and Welfare (MHLW). The general downward trend reflects several factors, including the following: industrial restructuring; increases in part-time work and service jobs; and the presence in the workforce of younger workers, who are generally disinclined to join trade unions. Union membership at end-2010 was insignificant, at 1.1%, among small companies with fewer than 100 employees, which account for much of Japan’s workforce. By contrast, the unionisation rate was 46.6% among companies with 1,000 or more employees at end-2010, up slightly from 46.2% at end-2009 and 45.3% at end-2008. The Japanese Trade Union Confederation (JTUC), or Rengo, is the main umbrella group for unions, with some 6.8m individual members, or 67.8% of the 10.08m total union members of June 2009, according to the Yearbook of Labour Statistics published by the MHLW in April 2011. Rengo has a number of federations, including the Confederation of Japan Automobile Workers’ Unions; Japan Public-Sector Union; Japanese Association of Metal, Machinery and Manufacturing Workers’ Union; Japanese Electrical, Electronic and Information Union; Japanese Federation of Energy and Chemistry Workers Unions; Japanese Federation of Textile, Chemical, Food, Commercial, Service and General Workers’ Unions; and the National Federation of Life Insurance Workers’ Union. Another 10.2% of all union members belonged to two smaller confederations, the National Confederation of Trade Unions (NCTU), or Zenroren, and the National Trade Union Council, or Zenrokyo, in June 2009. The rest are independent unions. Among industry-based unions, the Japan Council of Metalworkers’ Unions had the largest membership, at 2m, in June 2009. Japan’s enterprise-based unions wield substantial influence in collective bargaining, but they are also flexible in presenting their demands and willing to consider business conditions. Unions are actively involved in management decisions; indeed, management makes it a rule to solicit union opinions in taking decisions on general management as well as labour-related issues.

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Strikes remain rare in the private sector, and those that do occur are usually token actions lasting a short time. Since private-sector workers are organised on a company basis and accept a high degree of paternalism, they are mindful of the damage a long stoppage would inflict on their particular enterprises. There were 107 strikes recorded in Japan in 2009, down from 132 in 2008, according to the Survey on Labour Disputes 2009, published by the MHLW. Of the 107 strikes in 2009, 48 lasted for at least half a day and 59 lasted for less than half a day. A total of 20,702 workers were involved in the 107 strikes in 2009, compared with 50,132 workers in the 132 strikes in 2008. The total number of days not worked amounted to just 7.5 days in 2009, down from 11 in 2008. The “spring offensive” (shunto) for wage increases and other labour demands has been institutionalised as an annual round of negotiations covering major industries. Under the system (introduced more than 40 years ago), management and labour representatives hold collective shunto wage talks from mid-February through March to co-ordinate industry-wide wage increases or reductions—even unions not linked to a federation tend to present their demands in the spring. Labour federations represent their union affiliates at the negotiations. The scope of negotiated pay increases in the automotive, steel, shipbuilding and electricalappliance industries has traditionally served as the benchmark for wages for the financial year beginning April 1st. The negotiation directly affects unionised workplaces, and many multinational and non-union companies use the shunto agreements as guidelines for their own decisions on wages. Consequently, disputes are usually settled by collective bargaining in April, and the conditions agreed are written into yearlong contracts. Sometimes, a professional mediator may be appointed from local or national labour-relations commissions established by law. The commissions include equal numbers of representatives from unions, employers and the public. The average springtime annual wage increase, which peaked at 32.9% in 1974, is now typically around 2%. The MHLW reported that the wage increase in 2010 at large enterprises was 1.82%, almost unchanged from 1.83% in 2009. Many federations have stopped setting customary numerical targets for wage demands during their shunto negotiations. Consequently, the shunto system is losing its relevance in the changed employment environment of Japan; there are already signs that some progressive companies are abandoning the practice in favour of independent labour-management negotiations.

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Labour market
(score; 10=good)
G7 (av) 10.0 8.0 6.0 4.0 2.0 0.0 Japan

2006

07

08

09

10

11

12

Source: Economist Intelligence Unit.

Wages and fringe benefits

The salary structure of Japanese corporations is often based on seniority. Foreign-owned companies are popular among younger workers partly because they put less emphasis on seniority. However, some of the larger Japanese companies are beginning to change their compensation practices. Industrial workers performing the same function and producing the same output may receive widely differing wages depending on educational level, length of service, ability, sex and number of dependants. Salaries in Japan are generally paid monthly, usually on the 20th or 25th of the month. Most corporations deposit paycheques directly into their employees’ bank accounts through electronic transfers. Monthly wages usually include a range of allowances on top of base pay. Companies frequently offer family allowances, subsidised medical and dental care, subsidised meals, holidays and excursions, housing (dormitories for single workers and houses for families) and recreational facilities. The total annual package usually consists of 12 regular monthly payments and two bonuses. The amount paid in bonuses makes up a relatively high proportion of total wages. Bonuses, which originated with the payment of allowances during the Obon summer holiday in mid-August and the New Year’s season, are generally paid out as a multiple of the monthly base salary. Each corporation varies the size of the bonus (in terms of number of months) depending on business performance and an agreement with labour. Generally, the larger the company, the larger the multiple. Total summer and winter bonus payments typically amount to five months’ salary. Roughly 30% of the total annual salary reflects a variable profitsharing system. Increasingly, Japanese companies tie a percentage of the bonus multiple to assessments of an employee’s job performance. Some foreign companies do not adhere to the bonus system. Fringe benefits and other non-basic-wage components represent roughly onethird of the total per-capita wage cost. Japanese companies traditionally provide a much wider range of fringe benefits than do companies in other countries. According to the Monthly Labour Survey released by the Ministry of Health, Labour and Welfare (MHLW) in June 2011, the total cash earnings of workers in various industries averaged ¥435,353 during the month, down by 0.8% from a

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year earlier. During the same month, total cash earnings averaged ¥477,491 in manufacturing and ¥795,331 in finance and insurance. More Japanese companies are adopting share options as non-cash incentives for their employees, though this practice is not widely used. The Commercial Code first permitted share options in 1997, and more-recent reforms to the code have increased the flexibility of share options. For example, an amendment implemented in April 2002 allows companies to grant share options not only to directors and employees but also to anyone outside the company if the shareholders approve. Japan has a multi-layered minimum-wage system, which varies by region and industry. The higher of the two minimum wages, either by region or by industry, is applied. There are now 47 regional minimum wages set annually by each local government based on a recommendation from the Central Minimum Wage Council under the MHLW. In addition, local industry-specific minimum wages may be set separately, when deemed necessary. There were 251 industryspecific minimum wages nationwide in August 2011. The Central Minimum Wage Council issues recommendations to local governments for annual hikes in the minimum wage. The latest guideline, issued in July 2011, calls for an increase of ¥6 to ¥736 in the weighted average hourly minimum wage in Japan for fiscal year 2011/12 (April 1st to March 31st). (In Tokyo, the minimum wage was ¥821 per hour in August 2011.) Despite this recommendation, 38 out of the 47 prefectures are likely to raise the minimum wage by just ¥1, according to news reports, since businesses were battered by the March 2011 earthquake and tsunami. Japan has four mandatory social-insurance programmes, which cover all workplaces and workers: Workers’ Accident Compensation Insurance, Employment Insurance, Health and Nursing Care Insurance, and Employees’ Pension Insurance. Japan has a universal health insurance system that covers all persons resident in Japan. Employers pay social insurance premiums including the portion of the premiums payable by employees and deducted from wages. The premium rates are 9.32% for health insurance and 15.704% for public pensions, as a percentage of wages, payable in two equal portions by the employer and the employee. The employment insurance premium rate is 1.55%, of which 0.95% is payable by the employer and 0.6% by the employee. Unemployment insurance is an increasingly important part of the typical compensation package. Under the present programme, a salaried worker and the employer share premium payments. The average limit of unemployment benefits is one year. Almost all companies in Japan have some form of severance-pay system. Employers make one-off payments based on the length of service. Severance pay is treated more favourably for tax purposes than other types of employee compensation. If companies meet certain conditions, they may recognise contributions to severance-pay reserves as deductible expenses.

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Availability of skilled labour
(score; 5=high)
G7 (av) 5.0 4.0 3.0 2.0 1.0 0.0 Japan

2006

07

08

09

10

11

12

Source: Economist Intelligence Unit.

Working hours

Japan’s Labour Standards Law of 1947 requires companies to limit working hours to eight per day and 40 per week. Longer working hours (usually 46) are allowed for the retail and service sectors. Working hours averaged 151.8 per month (or 37.95 hours per week) in June 2011, according to the latest monthly labour survey by the Ministry of Health, Labour and Welfare (MHLW) of workplaces employing five or more persons. Overtime pay is usually 125% of the hourly wage and is limited to 4–6 hours a week. Overtime pay beyond this limit varies by company, but regulation is loose at Japanese workplaces, where employees are often pressured to work beyond official working hours without pay (a practice called service overtime). Labour authorities want to correct this practice by conducting field inspections. The ministry has cited many Japanese companies, large and small, for cutting corners on overtime pay. An amendment of the Labour Standards Law, enacted in December 2008, went into force on April 1st 2010 introducing a three-tier overtime-pay scheme. The scheme sets compensation for monthly overtime hours up to 45 hours at the present rate (125%), overtime of 45–60 hours monthly is at a rate negotiated between management and labour, and overtime exceeding 60 hours is to be compensated at a rate of 150%. As at August 2011 the 150% clause has been waived for small and medium-sized companies for an undetermined period. The reform aims to discourage the practice of spending very long hours on the job. The problem of karoshi (literally translated as death from overwork) has been an issue for decades, with some cases reaching the courts. There are now two conflicting trends in the Japanese labour market: the increasing workload for workers surviving job cuts and other forms of corporate restructuring, and work sharing. The latter movement divides work normally done by one person between two or more. The government encourages work sharing as a way to ease unemployment and supports it with subsidies. Employees simply work shorter hours and receive less pay and fewer benefits. To receive these subsidies, companies must hire workers aged 45–59 who have lost their jobs because of restructuring or other reasons. Other conditions apply, and employers must obtain an agreement from their labour unions before introducing work-sharing schemes.

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Under the Labour Standards Law, minimum holiday-leave time is ten days per year. Annual holiday leave increases by one day for each year during which the worker’s attendance is 80% or more of the total working days, to a maximum of 20 days. The paid leave may be taken consecutively or not. Maternity leave is six weeks minimum and 14 weeks for a multiple pregnancy. Child-care leave and family-care leave are available for parents wishing to take time off from employment to focus on child or elder care.
Compensation, as at June 2011
Sector Electricity & gas utilities Finance & insurance Information & communications Education Real property Manufacturing Construction Mining Transport Healthcare & welfare Services (not elsewhere classified) Wholesale & retail trade Restaurants & hotels * In workplaces employing five or more persons.
Source: Ministry of Health, Labour and Welfare, Monthly Labour Survey June 2011.

Monthly total cash earnings (¥) * 1,106,998 795,331 759,542 671,552 494,762 477,491 476,122 440,461 436,232 395,902 368,552 330,960 134,909

Part-time and temporary help

Part-time and temporary workers in Japan are often hired with one-year contracts, though contract renewals may extend the period. With employers keen to cut payroll costs, part-time and temporary help has become a common alternative to regular employment. The latest Monthly Labour Survey by the Ministry of Health, Labour and Welfare (MHLW) in June 2011 reports that 27.5% of 44.5m regular employees were working part-time in workplaces with five or more employees, slightly down from 27.6% part-timers a year earlier. The rest were working full-time. The Worker Dispatching Law of 1985 protects the rights of temporary workers. Temporary workers must have an employment contract with a licensed temporary-staffing agency, and they work for a client company under a contract between the client company and the staffing agency. As a rule, temporary workers can be placed at companies to perform any duties other than port transport, construction and security, as well as some medical work. With the exception of some jobs, which require expert knowledge, skill and experience, temporary workers’ placement terms are limited to a maximum of three years. If the period of service exceeds three years, the client company must hire the temporary worker as a regular employee. The Labour Standards Law of 1947, the Industrial Safety and Health Law of 1972, the Equal Employment Opportunity Law of 1972 and other labour laws apply to temporary workers. Companies that host temporary workers must

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comply with the provisions of the Labour Standards Law pertaining to working hours, breaks and days off. However, it is the responsibility of the temporarystaffing agency (rather than the client company) to pay social-insurance premiums on behalf of the temporary worker. There is a wide wage gap between full-time and part-time workers. Part-timers receive about 40–50% less than their regular counterparts even when they perform almost the same amount of work. Furthermore, more than half of part-timers are not entitled to paid leave, according to government estimates. National labour unions have pressed for measures to improve the working conditions of part-time and other non-regular workers, but there were no specific developments in this area as at August 2011. Many companies draft separate rules for full- and part-time employees because Japanese law defines part-time workers as supplementary to regular personnel. Because the Labour Standards Law is vague on part-time employment and does not have penalties for non-compliance, the MHLW has its own guidelines covering part-time temporary workers. The Law Concerning the Improvement of Employment Management of PartTime Workers (Part-Time Work Law) of 1993 contains many recommendations for employers’ treatment of part-time workers. Most recommendations are nonbinding, and the only practical legal recourse available to part-time employees seeking remedy for unfair treatment is to file complaints with a local labour office, which intervenes as a mediator. Employers are advised to treat part-time workers as fairly as possible relative to their regular counterparts. Employers are also advised under the law to provide part-time workers with an opportunity to become regular employees, whenever possible. Termination of employment Since lifetime employment has historically been very common in Japan, laying off workers during a business slowdown may be considered unfair dismissal. Indeed, outright dismissal of regular workers is very difficult. The Labour Standards Law of 1947 allows companies to reduce overtime work, curtail shifts and furlough workers, but permanent dismissal is limited to circumstances of serious losses, conclusive proof of dishonesty, extremely unsatisfactory work performance, natural calamity or another well-founded cause. Moreover, a company must list potential grounds for discharge in its rules of employment. Under Article 20 of the Labour Standards Law, one-month prior notice must be given for dismissals. Exceptions are allowed for dismissal without notice, and they include absenteeism, criminal acts and natural disasters. Compensation payment is not mandatory. Court precedents suggest that it is necessary to meet the following four criteria when making employees redundant as part of a restructuring: necessity, best efforts to avoid redundancy, reasonable selection of redundant workers, and a reasonable process based on communication with workers and labour unions. Employers cannot dismiss employees who are on leave because of work-related illness or injury or on maternity leave and for another 30 days after such leave of absence. Under Article 26 of the law, employees are entitled to at least 60% of their normal salary while laid off. Part-timers and other non-regular employees enjoy less stability and are usually the first to go when a company must cut

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costs. Companies in industries specified by the Ministry of Health, Labour and Welfare (MHLW) that are forced to put employees on part-time work furloughs may recoup part of the cost from the government. Although most Japanese companies—as well as the government—still favour a reduction in working hours over outright firing of employees, the prolonged economic weakness of the past decade has put severe pressure on companies to implement non-traditional measures, such as forced leave, layoffs and cuts in new hiring. Japan passed a new bankruptcy law in May 2004 that includes improved advocacy provisions for employees of bankrupt companies. The legislation, implemented in January 2005, replaced the 1922 Bankruptcy Law, and makes it easier for employees of a failed company to recover unpaid wages and retirement allowances. The retirement age, once generally about age 55, has risen steadily since 1980 and is now age 60 or older for most companies. The legal basis for increasing job security for Japan’s ageing population has been strengthening. The Law on Employment Security for Elderly Workers of 1971 was revised in 1994 to require that employers set a mandatory retirement age at 60 or older, starting in 1998. The law was revised again in June 2004, requiring that all employers raise the mandatory retirement age further, to 65 years or older, by 2013. The latest amendment, implemented in December 2004, sets a timetable for compliance with deadlines for an increase in the mandatory retirement age. It was set at age 63 from April 1st 2007 and increased to age 64 from April 1st 2010. It will rise to age 65 from April 1st 2013. Employment of foreigners A foreign national who wishes to work in Japan must submit a visa application to the Ministry of Justice for review. The approval process takes 6–8 weeks. If approved, the authorities issue a special visa that usually limits the type of eligible employment. The visa can usually be extended before it expires. Although no work permits are required, foreigners found to be employed without the proper working visas must usually leave the country voluntarily or face deportation. Foreign nationals residing in Japan longer than a stipulated period must complete alien registration in accordance with the Alien Registration Law of 1952. The application process for alien registration must be completed at the municipal office with jurisdiction in the area of residence no later than 90 days after entering Japan (except when re-entering Japan on a re-entry permit). Japan amended the Immigration Control and Refugee Recognition Act and the Special Act on the Immigration Control in July 2009. Under the amendments, Japan is to install a new system of residence management within three years from July 2009. Under this new system, the maximum period of stay of foreigners residing in Japan legally will be extended to five years from three years. These foreigners shall be issued residence cards (also called special permanent resident certificates) equipped with integrated circuits or microchips, instead of an Alien Registration Certificate. A foreigner with a valid passport and a residence card shall be exempt from applying for a re-entry permit if

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he/she enters Japan within one year of departure. With the introduction of the new system of residence management, the Alien Registration Law and the Alien Registration Certificate will be abolished. However, the new system of residence management and the issuance of special permanent resident certificates were not yet in place in August 2011. The government has maintained its policy of accepting foreign workers in professional and technical fields as much as possible, while nominally discouraging the import of unskilled workers. However, many unskilled foreign workers from developing countries enter Japan with student visas or via trainee programmes. Moreover, a shrinking and ageing domestic labour force is forcing a slow rethink of the country’s immigration policy among the political and bureaucratic establishment.
Hiring of foreign nationals
(score; 5=easy)
G7 (av) 5.0 4.0 3.0 2.0 1.0 0.0 Japan

2006

07

08

09

10

11

12

Source: Economist Intelligence Unit.

National incentives
General incentives Foreign and domestic companies generally have the same access to incentives. The central and local governments offer a broad range of incentives to encourage inward foreign direct investment (FDI). Local governments offer various reductions and exemptions in business taxes, fixed-asset taxes and realproperty acquisition taxes. The Japan External Trade Organisation provides advice and counselling to help investors navigate the many incentives available at the central and local government level. The Programme for Acceleration of Foreign Direct Investment in Japan, instituted in June 2006, remains the basic policy platform with a focus on promoting foreign companies’ role in local economic growth and corporate revitalisation. The programme has improved the rules on mergers and acquisitions, and it has facilitated niche projects targeting specific types of businesses and products, such as medical equipment and pharmaceuticals. General incentives take the form of tax breaks, grants and loan assistance. The Development Bank of Japan provides a range of financing assistance to foreign companies in various stages of operation. Its long-term financing facilities, including many policy loans, are available for qualified domestic and foreign companies undertaking projects as part of their long-term investments in Japan.

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Japan’s annual tax reforms bring a changing menu of benefits, depending on economic conditions. The tax reform for the 2010/11 fiscal year (April 1st– March 31st), for example, extended through March 31st 2013 a special tax credit for companies that have increased their research-and-development expenses. Companies may claim tax credits against their R&D expenditures of up to 30% of the corporate tax due. The Japanese tax-incentive regime heavily favours small and medium-sized enterprises (SMEs), since many of these lack the financial resources to build their businesses. SMEs are officially defined as companies either capitalised at ¥100m or less (¥30m for wholesale companies and ¥10m for retailers, restaurants and personal-service establishments) or employing 300 or fewer regular workers (100 for wholesalers and personal-service establishments and 50 for retailers and restaurants). The tax reform for 2009/10 cut corporate tax rates for SMEs for two years. It cut the tax rate on the first ¥8m in annual taxable incomes for April 2009–March 2011 to 18% (from 22%). Legislation enacted on June 22nd 2011 extended this reduced rate by another year, through March 31st 2012. The tax reform for 2009/10 also reinstated tax-loss carry-backs for those companies. Japan’s parliament failed to enact the tax-reform proposals for 2011/12, including a 5% cut in the effective corporate tax rate, because of the opposition’s control of the upper house and the need to raise funds for reconstruction following the massive earthquake and tsunami in the north of the country in March 2011. However, legislation on June 22nd 2011 provides for the following incentives, besides an extension of the reduced tax rate for SMEs discussed above: • A qualified corporation can claim tax credits for additional new employment during April 1st 2011–March 31st 2014. Tax credits are calculated as ¥200,000 times the standard number of employees, but the credits are limited to 10% (20% for SMEs) of corporate income tax liability for the period. • When a corporation filing a blue tax return (this requires the taxpayer to maintain books and keep continuous accounting records that meet prescribed standards) acquires machinery/equipment to promote environment protection in June 22nd 2011–March 31st 2014, the corporation can claim 30% special depreciation. Alternatively, SMEs can claim a tax credit equal to 7% of the capital expenditure, but not exceeding 20% of their tax liability for the period. • A qualifying multinational company filing a blue return and establishing Asian headquarters or research-and-development operations in Japan is entitled to claim 20% income exclusion over five years, from June 30th 2011 through March 31st 2014. In addition, qualified corporations doing business in designated special zones for international strategy (also called global strategic special zones) can claim special depreciation of 50% for certain assets, or tax credits (see Regional incentives). The Diet (parliament) also enacted legislation on April 27th 2011 providing for tax relief for companies and individuals affected by the March 11th 2011 Tohoku

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earthquake in north-eastern Japan and the associated tsunami and nuclear disasters. Local governments offer various reductions and exemptions in business taxes, fixed-asset taxes and real-property acquisition taxes. Many of these incentives are for both domestic and foreign companies. Industry-specific incentives The government’s tax policy favours environment-friendly products and technologies. For example, businesses may immediately write down the cost of energy-saving equipment, renewable-energy equipment and facilities to produce energy-efficient products, instead of using statutory depreciation. Under legislation enacted in June 2011, when a company filing a blue tax return (this requires the taxpayer to maintain books and keep continuous accounting records that meet prescribed standards) acquires machinery and equipment to promote environment protection between June 22nd 2011 and March 31st 2014, it can claim 30% special depreciation. Alternatively, SMEs can claim a tax credit equal to 7% of the capital expenditure, but not exceeding 20% of their tax liability for the period. Concessionary long-term loans at low interest rates and loan guarantees are available from the Development Bank of Japan for ventures involving natural resources and energy (including energy-saving devices), technology development, maritime transport, urban renewal and anti-pollution technology. Terms vary based on the nature of the project. Regional incentives Many types of incentives are available, primarily for investment in regions outside major metropolitan areas. Some are tied to regional-economicdevelopment projects that aim to achieve balanced economic development between national economic centres and local regions. Concessionary loans from the Development Bank of Japan (DBJ) are available for rural development. Local governments also offer tax breaks, subsidies and low-interest financing. Most of Japan’s 47 prefectures and many municipalities offer tax incentives and subsidies to attract regional investment. Financing and loan programmes help companies to acquire land and buildings and to finance initial operations. Many of these incentives are for both domestic and foreign companies. The Organisation for Small and Medium Enterprises and Regional Innovation helps foreign companies interested in investing in outlying regions. The agency also develops real property for business and residential use throughout the country. Local public bodies have their own incentive programmes that include land leasing. Japan has established a network of foreign-access zones (FAZs) to expand imports into Japan and promote regional development by designating harbours, airports and regions surrounding these facilities as import centres. Previously, only third-sector corporations (hybrid public-private enterprises) engaged in regional development were eligible for assistance, but private companies that process and distribute imported goods now qualify as well.

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Import-related facilities and businesses are concentrated in each FAZ in order to provide assistance for all stages of importing, from customs clearance to product distribution. The Japan External Trade Organisation operates regional FAZ support centres. Prefectural governments run the FAZs, which are subdivided into “special concentration zones” for wholesalers, retailers, manufacturing processors, distributors and other import-related businesses. FAZs also offer simplified procedures for customs duties and consumption-tax payments. Companies operating in FAZs may qualify for low-interest loans from the DBJ. Other incentives include reductions and exemptions from local real-property acquisition taxes and property taxes; special depreciation allowances for import-related facilities; preferential insurance-premium rates; and official guarantees for commercial loans. Despite these incentives, the FAZs have so far failed to attract many foreign companies. Although setting up manufacturing facilities in these FAZs can help to reduce production costs, high transport costs to send products to Japan’s major urban consumer markets largely offset the savings. Facilities operating in regional areas may also face unstable supplies of parts and materials. Under the New Growth Strategy formulated by the Japanese government in June 2010, the Ministry of Economy, Trade and Industry (METI) was tasked to designate special zones for international strategy (SZIS, also called global strategic zones) with “potential international competitiveness.” Legislation enacted on June 22nd 2011 allows qualified corporations doing business in these SZIS to claim either of the following tax incentives: • When a corporation acquires certain assets for use in the SZIS, it can claim special depreciation of 50% (25% for buildings), or a tax credit of 15% (8% for buildings), up to 20% of its tax liability for the period; or • When a corporation engages in approved business activities within the SZIS, it can claim a deduction of 20% of income attributable to the pre-approved business activities. The METI operates many industrial-policy programmes that aim to support regional economic development under various initiatives, such as industrial clusters, business incubation and urban redevelopment. Export incentives and zones As a result of strong pressure from abroad, Japan has abolished all overt export incentives. However, the government still provides indirect support, depending on industrial policy needs. Special tax deductions and credits are used to direct fiscal aid to specific industries, especially small and medium-sized companies. Transfers of taxable assets that qualify as export transactions are tax exempt.

Corporate taxes
Overview Japan’s corporate tax burden is fairly high compared with that of other countries in the region, especially considering their more-generous tax breaks and reductions. But Japan’s annual tax reforms have steadily lowered corporate tax rates in recent years as part of continuing efforts to revitalise the economy.

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The Corporation Tax Law of 1965 governs the principal taxes that companies pay in Japan at the national level. The 47 prefectures in Japan do not have separate tax laws, and the prefectures generally follow the rules set by the national government. The enterprise tax is the mainstay local government tax levied on the basis of taxable profits. The inhabitant tax is also levied as a percapita tax by both prefectures and municipalities, and it varies with the location and size of a corporation. The tax reform of the 2008/09 fiscal year (April 1st– March 31st) introduced a “local corporate special tax” as a new national tax designed to improve the uneven distribution of local tax revenues and help balance local government finances. The basis of corporate income tax in Japan is the worldwide income of corporations established in Japan. The method of corporate income taxation consists of withholding at source and self-assessed tax returns. As a general rule, taxes on interest, dividends and royalties are levied on a withholding basis. The tax year in Japan runs from January 1st to December 31st, unlike the statutory fiscal year that starts on April 1st and ends on March 31st. There are steep penalties for tax evasion, but few cases reach the courts. On the whole, foreign-owned companies face closer tax scrutiny than their domestic counterparts. The Tohoku Legislation approved by the Diet (parliament) in April 2011 provides special tax relief to corporate taxpayers affected by the March 11th 2011 earthquake, tsunami and nuclear crisis in north-east Japan. Under this legislation, corporations that incurred a specified disaster loss may carry back such loss for two years for national tax purposes. (Before this change, one-year tax loss carry-back was allowed for SMEs; for other companies, the one-year tax loss carry-back was allowed only in the year of liquidation). In addition, a corporation that incurred a loss due to the disasters for the interim period ending between March 11th 2011 and September 10th 2011 may claim a refund of withholding tax paid upon filing of an interim tax return.
Tax regime
(score; 10=good)
G7 (av) 10.0 8.0 6.0 4.0 2.0 0.0 Japan

2006

07

08

09

10

11

12

Source: Economist Intelligence Unit.

Corporate tax rates

Japan’s annual tax reforms have steadily lowered corporate income tax rates in recent years. The budget for fiscal year 1999/2000 (April 1st–March 31st) reduced the standard national corporation tax to 30% (from 34.5%) and the maximum local enterprise tax rate to 9.6% (from 11%). As a result, the combined effective

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tax rate for the highest taxable income bracket declined to 40.87% (from 46.36%), according to the Ministry of Finance. The statutory preferential tax rates available to small and medium-sized enterprises (SMEs) with paid-in capital of less than ¥100m were lowered to 22% (from 25%) for the first ¥8m of taxable income on the national level. The tax reform of fiscal year 2009/10 (April 1st–March 31st) lowered the subsidised rate further to 18% as a temporary stimulus measure for business years ending between April 1st 2009 and March 31st 2011. Legislation enacted in June 2011 extended this reduced rate by another year, through March 31st 2012. This is meant to be a temporary tax break—unless extended again in later tax reforms. The rate for taxable income after the first ¥8m is still the standard 30%. Under the 2010 tax reform, a group company that would otherwise qualify as a SME on a stand-alone basis will not be eligible for the reduced corporate tax rate if the parent company of the group has paid-in capital of ¥500m or more. Thus, this SME will be taxed at the standard rate of 30%. The local enterprise tax for large corporations with capital exceeding ¥100m has three components: 7.56% of taxable profits, 0.504% of value added (wages, net interest, net rentals and taxable income before deducting tax-loss carried forward each year), and 0.21% of share capital and capital surplus. Flat rates apply to taxable profits earned by smaller companies: 5% for taxable income up to ¥4m; 7.3% for taxable income of ¥4m–8m; and 9.6% for taxable income in excess of ¥8m. These are standard rates, and the actual local enterprise tax rates may vary by prefecture, depending on local governmental tax codes. According to the Japan External Trade Organisation (JETRO), the effective corporate tax rates for Tokyo-based companies with paid-in capital of less than ¥100m are 29.33% for taxable income up to ¥4m; 30.85% for taxable income of ¥4m–8m; and 40.87% for taxable income in excess of ¥8m. These rates apply for business years ending after April 1st 2011. A corporation or a branch must file a final tax return within two months of the close of its fiscal year. Taxes must be prepaid halfway through the tax year in a sum equal to 50% of the tax payable on the previous year’s earnings. Enterprise tax paid during the current period is deductible from taxable income under both the national corporation tax and the enterprise tax itself.
Corporate taxation
The 2011 tax burden on a foreign-owned subsidiary in the Tokyo area with capital not exceeding ¥100m and a taxable income of ¥1bn is roughly as follows. (Local inhabitant tax is excluded.) Income subject to national corporation tax National corporation tax at 18% on income up to ¥8m National corporation tax at 30% on ¥992m Local enterprise tax and local special corporate tax at 5.0% on income up to ¥4m Local enterprise tax and local special corporate tax at 7.3% on income of ¥4m–8m Local enterprise tax and local special corporate tax at 9.6% on ¥8m–1bn Total taxes Total taxes as a percent of income
Source: Ministry of Finance.

¥1,000,000,000 1,440,000 297,600,000 200,000 292,000 95,232,000 394,764,000 39.5%

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Taxable income defined

A corporation’s taxable income for each accounting period is the excess of gross revenue over total business expenses. A foreign corporation faces corporate tax on its income derived from sources within Japan unless otherwise stipulated in tax conventions for the avoidance of double taxation. Double taxation can be avoided for Japanese branches of foreign corporations because only certain types of income generated within Japan are subject to local taxation. Gross revenue is defined as the increase in the value of assets accruing from every transaction exclusive of gains from certain capital transactions, such as paid-in surplus and share retirement. Generally speaking, business expenses are the decrease in the value of net assets from all transactions other than capital reimbursement or profit distribution. Foreign-exchange transactions are usually recognised when gains are realised or losses sustained. However, outstanding receivables and payables denominated in foreign currency at the end of an accounting period should, in principle, be valued at the rates prescribed by the tax code. When a corporation ceases to exist, either by dissolution or merger, corporate tax applies on its liquidation income. Consolidated taxation has been available since April 1st 2002 to allow groups of companies to file a consolidated return. Consolidated net operating losses may be carried forward for seven years. Net operating losses incurred by a subsidiary before joining the group do not qualify for carry-forward treatment. However, under the 2010 tax reform, a subsidiary’s pre-consolidation tax losses may be carried forward to a consolidated tax group, but such losses may be offset only against the subsidiary’s taxable income. (This rule applies only if the subsidiary is not subject to taxation of built-in gains or losses on its assets upon joining the consolidated tax group). Recent legislation has created new forms of business with different tax consequences. The Company Law, enacted in July 2005 and implemented in May 2006, created the Japanese version of the US limited-liability company (LLC). Called godo-kaisha, Japanese LLCs are taxed as corporations: profits are taxed at corporate tax rates, and dividends at personal tax rates. The Limited Liability Partnership Law, enacted in May 2005 and implemented in August 2005, allows an investor to organise his business as a limited-liability partnership (LLP). Known locally as yugen sekinin jigyo kumiai, LLPs provide the same advantages of management flexibility as LLCs, but they benefit from passthrough taxation that is not available to LLCs. Hence, investors in LLPs are taxed only on their distributions. Tax deductions/credits. Allowable deductions include material costs; trading, manufacturing and administration expenses; and interest, rentals and royalties paid. A management fee to a foreign affiliate may be deductible to the extent considered reasonable for specific benefits received by the Japanese company. Taxpayers compute depreciation of tangible fixed assets by using either the straight-line or the declining-balance method, at the taxpayer’s election. Net losses in each business year are carried forward for the next seven years. Losses may be carried forward in this way only if a blue-form tax return is filed (this requires the taxpayer to maintain books and keep continuous accounting records that meet prescribed standards) in the business year in which the loss

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arose; a final tax return is then filed every subsequent year. For corporations with paid-in capital of ¥100m or less and that file a blue-form return, tax losses incurred in periods ending on or after February 1st 2009 may be carried back for one year. These enterprises receive a full or partial refund of the amount of corporate tax in the business year in which the loss was carried back. The Corporation Tax Law of 1965 allows other tax breaks for normal business operations, as follows: • Foreign taxes levied on Japanese or foreign companies may be credited against Japanese corporation and local-inhabitant taxes. Foreign tax credits are not available for local-enterprise tax purposes, whereas foreign-branch income attributable to business executed outside Japan is exempt from local enterprise tax. Foreign income taxes deductible by a Japanese corporation on dividend income from a foreign subsidiary include the foreign corporate income tax paid by the subsidiary if the Japanese parent company owns 25% or more continuously for six months or longer. • Deductions may be taken against bad debts, goods returned, repairs, overseas investment losses, natural disasters and employee-severance indemnities. • Dividends received by one resident corporation from another resident corporation are excluded from taxable income for corporate income tax purposes if the dividend-receiving corporation owns or holds at least 25% of the shares in the dividend-paying corporation for at least six months before the dividend determination. If the dividend-receiving corporation owns less than 25% of the shares or holds shares for less than six months before the dividend determination, it may exclude 50% of the dividends received. The 2009/10 tax reform introduced a foreign-dividend-exemption system that exempts from tax 95% of dividends received by a Japanese company from its qualifying shareholdings of 25% or more in foreign companies (held for at least six months before the dividend determination). • For corporations with capital of ¥10m or less, entertainment expenses up to ¥4m per annum are 90% deductible. For those capitalised at more than ¥10m, up to and including ¥50m, the deduction applies to 90% of entertainment expenses up to ¥4m per annum. Such deductions are not available to companies with capital exceeding ¥50m. • A special tax credit is extended to companies that have increased their research-and-development expenses. The total tax credit is limited to 30% of the corporation’s tax liability. • Deductions are available for charitable donations up to 1.25% of taxable income and 0.125% of paid-in capital and capital surplus. Donations to foreign affiliates are not deductible. Under the 2010 tax reform, where a donation occurs between group companies, there are no tax implications for either donor or donee (that is, there is no donation income recognition for a donee and no taxable deduction for a donor).

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• Penalties and interest paid to foreign governments and other international organisations as a result of antitrust action are not deductible for Japanese corporate tax purposes. • Last-in-first-out (LIFO) and average-cost-inventory accounting methods are not acceptable in favour of the first-in-first-out (FIFO) method, in line with recent amendments to Japanese accounting standards. Annual tax reforms. Japan’s annual tax reforms, which come as part of the annual budget package taking effect on April 1st of each year, provide major changes to the corporate tax code. The Tax Commission (an official advisory panel to the minister of finance) and the Council on Economic and Fiscal Policy under the Cabinet Office are the chief architects of these annual exercises. The council is supposed to set basic economic policy, and the commission is supposed to determine the details, but the two are often at odds—especially over corporate tax reform. The council tends to push for corporate tax cuts; the commission puts priority on stable tax revenues. The tax reform of 2004/05 allowed blue-return taxpayers to carry forward losses for seven years, extended from the standard five years. This applies retroactively for three previous taxable years (beginning on or after April 1st 2001). This requires eligible taxpayers to keep accounting books on file for seven years instead of the standard five years. The tax reform for 2005/06 contained measures mostly for households and SMEs, including technical adjustments to existing tax incentives. Notably, it provided a basis for more intervention by tax authorities in profits generated by crossborder partnerships and other non-conventional investment vehicles investing in Japan. Accordingly, it imposed a withholding tax of 20% on capital gains derived from a non-resident investment in a company or a partnership that holds 50% or more of its assets in Japanese real property from April 2005 onwards. Investment partnerships previously had to pay Japanese taxes if each member owned more than 25% of the target Japanese corporation’s aggregate equity and exercised sales of more than 5% of the member’s ownership. These rules do not affect a non-resident or a foreign corporate partner who is a resident of a country that has a tax treaty with Japan. The tax reforms for 2007/08 set the book value of when an asset has been fully depreciated at ¥1, in effect 100% depreciation. Previous asset-depreciation rules let companies write off only up to 95% of a fixed-asset investment. The tax reform of 2008/09 streamlined asset classification and statutory useful lives for depreciation purposes. It also introduced a framework to provide a tax credit (up to 10% of the amount of corporation tax) based on either incremental research-and-development spending or R&D spending exceeding 10% of sales. As a result, corporations investing in R&D can claim up to 30% of their current income tax liabilities (increased from 20% prior to April 1st 2008). It also introduced a tonnage tax system, allowing a fleet-operating company to elect the tonnage tax option. This system lets a company deduct from its taxable income the portion of net revenue from Japanese-fleet operations that exceeds the standard profit per tonne.

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The tax reform of 2009/10 cut the standard corporate tax rates for the lower income brackets for SMEs to 18% (from 22%) through March 31st 2011. Legislation passed in June 2011 extended this incentive through March 31st 2012. The 2009/10 tax reform also reinstated the statutory one-year carry-back of tax losses by SMEs for business years ended on or after February 2009. Under the Tohoku Legislation approved by the Diet (parliament) in April 2011 to provide special tax relief to victims of the March 11th 2011 earthquake, tsunami and nuclear crisis in north-east Japan, corporations that incurred a specified disaster loss may carry back such loss for two years for national tax purposes. In addition, under legislation enacted in June 2011, the one-time depreciation of the cost of investment in energy-saving technologies, including production facilities for energy-efficient consumer electronics, has been made available until March 31st 2012. The tax reform of 2010/11 introduced the group-taxation regime; this allows share redemptions within a group to take place on a no-gain/no-loss basis, thereby deferring realisation of any gains or losses. For losses resulting from liquidation, general income tax principles will apply. The dissolution of a consolidated subsidiary does not mean it is no longer a member of the consolidated tax group. (Prior to the 2010/11 tax reform, when a member of a consolidated tax group was placed into dissolution, it was deemed no longer to be a member of the consolidated tax group.) In general, under the grouptaxation regime, many transactions within groups can now take place without any corporate tax implications, allowing for more-efficient commercial planning and more-effective tax-rate management. In addition, the 2010/11 tax reform provided for broader tax exemption for investments in corporate bonds. For example, interest income and redemption gains derived by foreign investors from certain Japanese corporate bonds may be exempt from Japanese tax if certain requirements are met (for example, if the bond is a book-entry corporate bond). The provision is extended to cover redemption gains from bonds issued by a tokutei mokuteki kaisya (TMK; a special purpose corporation generally used to hold real property) purchased at a discount. The 2011/12 tax-reform proposals include a 5% cut in the effective tax rate of corporate income, an extension of the loss carry forward period to nine (from seven) years and a further reduction in the corporate tax rate for SMEs. However, the Diet failed to approve this package because of the opposition’s control of the upper house. Instead, the Diet enacted legislation in June 2011 with the following key provisions: (1) tax credits for additional new employment during April 1st 2011–March 31st 2014, calculated as ¥200,000 times the standard number of employees, subject to 10% (20% for SMEs) of corporate income tax liability for the period; (2) special 30% depreciation for machinery/equipment to promote environmental protection acquired before March 31st 2014; (3) higher depreciation rates or tax credits for certain assets acquired by corporations in “special zones for international strategy (SZIS)” designated by the government (see Depreciation); and (4) a deduction of 20% on income attributable to the pre-approved business activities in the SZIS.

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Crossborder income. Foreign-affiliated entities are subject to Japanese transferpricing tax rules only if they hold no less than 50% shareholding relationships with Japanese taxpayers, or have other relationships that give them effective control. A 1986 law on transfer pricing requires that the prices of goods and services exchanged between internationally affiliated entities should be at arm’s length, with the taxpayer having the burden of proof on reasonableness of the pricing. (Internationally affiliated entities are defined as those with a relationship consisting of a foreign shareholding of 50% or more, either direct or indirect.) If the taxpayer fails to provide proof or disclose other evidence, the National Tax Agency (NTA) can increase its taxable income. Affiliates of large foreign companies have objected to hefty NTA assessments based on allegations of under-reported profits. Tax officials counter that some foreign companies levy excessive royalty payments on their Japanese operations and overcharge on transfer prices. The NTA can be aggressive in auditing transfer-pricing activities. In March 2006 the NTA issued revised transfer-pricing guidelines that expand the definition of intangible assets from patents and proprietary technical know-how in order to include a broader scope of employee knowledge, corporate management and sales promotion. The NTA also applies “tax haven” rules to Japanese residents (a domestic company and/or a resident individual) directly or indirectly holding more than 50% of the shares of a foreign company whose corporate tax rate is 25% or less. A resident owning 5% or more of this foreign company must report the undistributed profit of the controlled foreign company, in proportion to its share ownership, as its Japanese taxable income. The tax-haven countermeasure can be waived, however, when a foreign subsidiary has fixed facilities, engages in business in the foreign country and conducts business activities in that country. The 2010/11 tax reform modified exceptions to the anti-tax-haven rules. Before the change, a foreign subsidiary is a tax-haven company if more than 50% is owned by Japanese residents and its effective tax rate is less than 25%. The new rules reduce the rate from 25% to 20%. In addition, in calculating the effective 20% effective tax rate, any tax-free dividend received by an upper-tier subsidiary from a lower-tier subsidiary is excluded from the denominator if certain other requirements are met. Another favourable change under the 2010/11 tax reform is a special exception from the definition of tax-haven company for a regional holding company that conducts a certain level of supervisory activities for its subsidiaries. Japan follows OECD rules on thin capitalisation, which apply to domestic or foreign companies borrowing money from parent or affiliated companies overseas in excess of three times the amount of their equity capital. But Japan has never actively enforced the thin-capitalisation rules intended to discourage reduction of corporate taxes by loan grants, rather than capital investments. Nevertheless, the thin-capitalisation rules, implemented in April 1992, limit the ability of foreign-owned Japanese corporations and foreign corporations with Japanese branches to extract earnings sourced in Japan at a low tax cost. In effect, interest that is paid on borrowings from a 50%-or-more-related foreign shareholder and that is not attributable to a Japanese permanent establishment

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of the related foreign shareholder is deductible as a cost only if related debt does not exceed three times equity. Interest on any borrowing exceeding that threshold may not be booked as costs and are thus subject to corporate taxes. Depreciation Companies operating in Japan depreciate their capital assets based on the legal useful life of an asset. They can take depreciation either by fixed amounts (straight line) or by fixed rates (declining balance) under schedules published by the Ministry of Finance (MOF). Tax reforms for fiscal year 1998/99 (April 1st–March 31st) required straight-line depreciation for buildings; prior to March 31st 1998, a company could use both straight-line and declining-balance methods simultaneously for different types of assets at different locations. Buildings acquired in a merger after April 1st 1998 may still be depreciated by either method. As a result of the reform, goodwill must be depreciated on a five-year straight-line basis. The MOF has set the useful life of certain items as follows: cars and lorries, 4–6 years; computers, 4–5 years; intellectual property, 5–10 years; machinery and equipment, 6–22 years; office buildings, 50 years; and other office equipment, generally 5 years. Minimum salvage value is usually estimated at 10% of the acquisition cost. Special depreciation is available for many different types of assets in specified categories. These allowances are broadly grouped into accelerated initial depreciation and additional depreciation. Examples of accelerated initial depreciation, which apply to the first year, include the 18% depreciation rate on equipment used for environmental protection and the 9% rate on aircraft used by airline companies. Special additional depreciation measures include the 20% depreciation allowances for the first five years on buildings used as warehouses. Small assets worth less than ¥100,000 may be deducted immediately (and those with acquisition values of ¥100,000–200,000 may be depreciated over three years). Annual tax reforms include periodic adjustments to depreciation rules. The tax reform implemented in April 2007 allows companies to depreciate their assets to ¥1; the previous maximum was 95% of the asset’s acquisition cost. The tax reform of 2008/09 streamlined asset classification and statutory useful lives to make them more consistent with economic useful lives. The 2009/10 tax reform (with effect from April 1st 2009) extended by two years (until March 31st 2011) a special depreciation provision letting small and medium-sized enterprises claim depreciation of 30% of the cost to acquire qualified machinery with a purchase price of ¥1.2m or more or a tax credit of 7% of the acquisition cost within 20% of the corporation tax due. The tax reform for 2010/11 extended the applicable period by another two years, through March 31st 2013. Legislation passed in June 2011 provides for a special 30% depreciation for companies acquiring, before March 31st 2014, machinery and equipment to promote environmental protection. The taxpayer must be a company filing a blue tax return (this requires the taxpayer to maintain books and keep continuous accounting records that meet prescribed standards) to qualify for this incentive. Alternatively, SMEs can claim a tax credit equal to 7% of the

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capital expenditure but not exceeding 20% of their tax liability for the period. In addition, when a corporation acquires certain assets in the special zones for international strategy designated by the Ministry of Economy, Trade and Industry, it can claim a special depreciation of 50% (25% for buildings), or a tax credit of 15% (8% for buildings), up to 20% of its tax liability. On April 27th 2011 the Diet (parliament) also enacted the “Tohoku Legislation”, providing tax relief for taxpayers affected by the March 11th earthquake, tsunami and nuclear crisis in north-eastern Japan. Under this legislation, a corporation may claim a special depreciation for certain assets in the year of acquisition, in addition to normal depreciation. The qualified assets should be acquired and placed in service between March 11th 2011 and March 31st 2016, and satisfy either of the following: (a) newly acquired assets, such as buildings, machinery and equipment, vessels, aircraft or vehicles to replace assets destroyed in the disasters; or (b) newly acquired assets used in a business carried out in the disaster region. Capital taxes Capital duty is included in local enterprise tax. A specific tax also applies to the registration of a company, branch or real property. The rates vary by type of property. Municipalities levy a fixed-assets tax on land, buildings and other specified assets (such as machinery used for business purposes). The rates on the appraised value of the asset vary by municipality, at 1.4–2.1%. A realproperty acquisition tax of 3% of the appraised value, reduced from the standard 4%, applies at the time land or buildings are acquired. The reduced rate was to expire at end-March 2009, but the tax reform for fiscal year 2009/10 (April 1st–March 31st) extended its effective period until March 2012. The standard rate of registration tax applicable to the transfer of ownership of land was increased to 1.3% (from 1%) from April 1st 2011, and it is set to rise to 1.5% on April 1st 2012, in accordance with the 2009/10 tax reform. The Tohoku Legislation enacted by the Diet (parliament) in April 2011 to provide relief to victims of the earthquake and the subsequent tsunami and nuclear crisis, eliminated local taxes on fixed assets for 2011 for real property in the disaster areas. The legislation also eliminated tax on real property acquired before March 31st 2021 to replace those damaged in the disasters. Treatment of capital gains Companies’ portfolio-investment profits and losses are classified as ordinary corporate income and losses. Capital losses are fully deductible but may not be offset against capital gains. There are no adjustments for the inflationary component of gains. The effective tax rate on capital gains earned from listed shares has been set at 10% (inclusive of a 3% local tax) since 2003. The 2009/10 tax reform extended the 10% rate to continue to apply on capital gains from listed shares sold between January 2009 and December 2011. Under legislation enacted in June 2011, this was extended for a further two years, through December 31st 2013. The effective tax rate on capital gains arising from unlisted shares has been 20% (including a 5% local tax) since 2004. Capital losses on listed shares and share investment trusts (excluding privately placed investment trusts) sold on or after

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January 2004 may be carried forward for three years, allowing investors with capital losses to offset gains for up to three years. The tax reform for 2005/06 provided a measure specifically to plug tax loopholes that let some foreign investors (particularly private-equity funds, hedge funds, venture capitalists and real-property investment funds) avoid paying Japanese tax on investment returns through various offshore tax-haven facilities. A tax-reform measure implemented on April 1st 2005 for non-resident corporations and on January 1st 2006 for non-resident individuals imposes a withholding tax of 20% on capital gains derived from investments in a company or a partnership that holds 50% or more of its assets in Japanese real property. However, tax-treaty provisions limit the real effect of this change, and the withholding-tax obligation applies only for investors owning more than 25% of the company or the partnership. The 2009/10 tax reform, implemented on April 1st 2009, brought another important change to the rules governing fund investment by limited partnerships. Thus, a foreign partner having no permanent establishment in Japan and owning any percentage share of a company may sell any amount of shares through a qualified investment fund without incurring the capital gains tax if the shares are held for at least one year. This special tax treatment is expected to encourage non-residents to invest through (onshore or offshore) partnership structures. Capital gains from the transfer of land are fully taxable for corporate income tax purposes. Annual tax reforms reduce the amount of the taxable gains. For example, the tax reform for 2009/10 introduced a special deduction of ¥10m if an individual or a corporation purchased land during January 2009–December 2010 and owned the land for at least five years before selling it. (However, this special deduction was allowed to lapse at end-2010 and was not extended in subsequent tax reforms.) The Tohoku Legislation enacted in April 2011 provides for rollover relief for newly acquired assets meant to replace those destroyed by the earthquake and tsunami in north-eastern Japan 0n March 11th 2011. This legislation allows the entire amount of capital gain to be deferred for certain assets in the disaster region acquired between March 11th 2011 and March 31st 2016. (Under rules applicable to areas unaffected by the disasters, only up to 80% of the capital gain realised when a new asset is acquired to replace an old one may be deferred). This tax relief also applies for the purpose of calculating the enterprise tax and the inhabitants tax. Taxes on interest and dividends Interest paid to resident individuals and corporations is included in aggregate taxable income. There are exemptions from withholding tax for interest earned on most government bonds. The normal withholding tax on interest is 20% (including a 5% local tax). Tax treaties reduce this rate for residents of a number of countries; however, the lower treaty rates apply only to income that is not attributable to a permanent establishment. Under the 2010/11 tax reform, interest income and redemption gains derived by foreign investors from certain Japanese corporate bonds may be exempt from

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Japanese tax if certain requirements are met (such as if the bond is a book-entry corporate bond). The provision is extended to cover redemption gains from bonds issued by tokutei mokuteki kaisya, a special purpose corporation generally used to hold real property, and purchased at a discount. Furthermore, the reform made permanent the concessionary tax-exemption rule for Eurobonds, which was to expire on March 31st 2010. However, the exemption does not apply to profit-linked bonds and bonds issued to related parties. A tax treaty between Japan and the United States (ratified in both countries in March 2004 and implemented on July 1st 2004) governs cross-Pacific interest and dividend payments. The treaty generally permits a 10% withholding tax on interest payments. It provides a complete exemption for interest paid to banks (including investment banks), insurance companies and registered securities dealers, and to any other financial institution under certain conditions. These include the following requirements: more than 50% of the interest should arise from the issuance of bonds or from taking interest-bearing deposits; the interest is paid to certain qualifying pension funds; the interest arises with respect to debt that is guaranteed, insured or indirectly financed by the government; and the interest applies to indebtedness that arises as part of certain sales on credit of equipment or merchandise. Dividends paid to qualifying pension funds and, in certain circumstances, dividends from subsidiaries to parent corporations are exempt from withholding tax under the treaty with the US. The parent-subsidiary exemption applies only if the parent owns, directly or indirectly, more than 50% of the voting shares of the subsidiary. The withholding rate on dividends not qualifying for a complete exemption is generally limited to 5% if the beneficial owner is a corporation that owns directly or indirectly at least 10% of the voting shares of the company paying the dividend, or 10% otherwise. (Under the old treaty, the withholding rates were 10% and 15%, respectively.) Special rules apply to dividends from US real-estate investment trusts and mutual funds, and from certain similar Japanese entities. There is a 20% withholding tax (inclusive of local tax) on all dividends paid to a resident individual or corporation. Tax treaties usually reduce the withholding tax for foreign shareholders that do not have a permanent establishment in Japan. A reduced rate of 10% (including a 3% local tax) applies to dividends from listed shares and equity investment trusts (except for investment trusts for corporate or government bonds, etc) from January 1st 2004 to December 31st 2011, after a series of tax reforms that extended the period. Under legislation enacted in June 2011, the reduced withholding tax rate of 10% was extended for a further two years, through December 31st 2013. Dividends are paid out of corporate income before income tax. However, at least 50% of dividends received are not treated as taxable income for companies holding only limited, non-controlling stakes—less than 25% of the shares—in the dividend-paying company. Dividends accruing from securities issued outside Japan are subject to withholding at the rate of 20%. For domestic corporations, withholding taxes are considered prepayments against corporate income tax liability, and withheld tax in excess of the liability is refundable.

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The tax reform for fiscal year 2009/10 introduced several new provisions concerning foreign dividends. Beginning in April 2009, 95% of a dividend received from a foreign subsidiary that is at least 25% owned by the dividendreceiving company is deductible from taxable income. Before the 2009/10 tax reform, when the dividend received was included in the taxable income of the Japanese parent corporation, foreign tax credits could be claimed for any foreign dividend tax paid to avoid double taxation. The 2009/10 tax reform, however, abolished the indirect foreign tax credit system and replaced it with a foreign-dividend-exclusion system, which is another way to avoid double taxation. This new system excludes 95% of dividends received from foreign subsidiaries from taxable income. But since the reform amendments apply only to exempt foreign dividends, foreign taxes directly paid on shareholdings of less than 25% will continue to be eligible for foreign tax credits. Taxes on royalties and fees A Japanese licensee must withhold taxes on gross payments that it pays to the foreign licenser. This regulation has been interpreted to cover reimbursed expenses, including travel costs and salaries paid to engineers or technicians provided by the licenser. The company paying the fees may deduct them from taxable income. There are no official limits on the deductibility of payments to a foreign parent, but tax authorities are suspicious of large payments. Japanese definitions of industrial property are broad, and income from contracts that involve any form of technology—even for services performed outside the country—may be subject to withholding tax. The withholding-tax rate on royalties and fees for the licensing of patents, trademarks, copyrights, know-how and technical assistance is generally 20% (reduced under various tax treaties). Income received by non-resident companies (that is, branches of foreign companies operating in Japan) for personal services rendered in Japan, including technical and managerial skills, is subject to the consumption tax as well. Generally, there is little risk that a licensing agreement will result in a permanent operation in Japan. But if the agreement involves construction, installation or assembly activities, and the foreign licenser provides supervisory personnel for such activities for a more than a year, the licenser is deemed to have a permanent establishment in Japan and thus subject to corporate tax. (The 2004 United States–Japan treaty increased this period to two years for construction and installation activities.) The US–Japan tax treaty eliminates all source-country withholding taxes on royalty income. A complete exemption from withholding tax is available for royalties for the use of or right to use any copyright of literary, artistic or scientific work (including movies, films or tapes for television or radio broadcasts), any patent, trademark, design or model, plan, or secret formula or process, or information on industrial, commercial or scientific experience. Double-tax treaties Most of Japan’s tax treaties reduce the rate of withholding taxes on payments of dividends, interest and royalties. Tax accountants urge caution in repatriating dividends where home jurisdictions do not provide for a 100% credit on taxes paid in Japan. Double-tax treaties usually include the following features:

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resident and non-discrimination rules and source-of-income rules;

• permanent-establishment regulations and taxation of business income and income from international transport; • taxation rules on dividends, interest, royalties, real-property income and capital gains; and • rulings on independent professional income, employment income, taxexemption status on short stay (not exceeding 183 days). Japan’s network of tax treaties covered 59 countries in August 2011. The most recent addition was a treaty with Hong Kong implemented in August 2011. Between August 2009 and August 2011, Japan signed protocols amending tax agreements with Belgium, Kuwait, Luxembourg, Malaysia, Singapore and Switzerland. Except for the amending protocol with Singapore, which went into force in July 2010, these changes were awaiting ratification and were not yet in force in August 2011; a new convention replacing an old tax treaty with the Netherlands was signed in August 2010, but also was not yet in force. A convention between Japan and Saudi Arabia for avoidance of double taxation and prevention of tax evasion was signed in November 2010 and was also awaiting ratification in August 2011. A treaty between Japan and Bermuda allowing the exchange of information to prevent international tax evasion went into effect in August 2010. The treaty was the first of its kind that Japan has concluded with a tax haven. The accord requires Japan or Bermuda to provide information, including data possessed by financial institutions, at the request of the other party; however, the information provided has to be kept secret. Japan signed similar treaties between August 2010 and August 2011, with the Bahamas, Cayman Islands, and Isle of Man but these were not yet in force in August 2011. Japan has agreed in principle to sign exchange-of-information treaties with Guernsey and the island of Jersey, both British dependents, but these had not yet been finalised in August 2011. In order to avoid double taxation of income, a domestic corporation may credit foreign taxes imposed on certain income up to the creditable limit. This foreigntax-credit system provides the following: (1) credits for foreign taxes paid directly by a domestic corporation on income earned by it outside Japan (direct tax credits); (2) credits for amounts of tax that have been especially reduced or made exempt in a country under the provisions of a tax convention with that country (tax-sparing credits); and (3) credits for foreign taxes corresponding to the income of a specified foreign subsidiary or similar entity that has been combined with the income of a domestic corporation under a so-called antitax-haven taxation system. A foreign-dividend-exclusion system was introduced in April 2009 to avoid international double taxation. This allows domestic corporations to exclude from their taxable income 95% of dividends received from foreign subsidiaries that are at least 25% owned by the dividend-receiving country.

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Withholding tax rates under Japan’s tax treatiesa (%)
Recipient’s country Dividends Interest Royalties Recipient’s country Dividends Interest Royalties Australia 0/5/10/15 0/10 5 Malaysia 5/15 10 10 Austria 10/20 10 10 Mexico 0/5/15 10/15 10 Bangladesh 10/15 10 10 Netherlands 5/15 10 10 Belgium 10/15 10 10 New Zealand 15 — — Brazil 12.5 12.5 12.5/15/20 Norway 5/15 10 10 Brunei 5/10 10 10 Pakistan 5/7.5/10 10 10 Bulgaria 10/15 10 10 Philippines 10/15 10 10/15 Canada 5/15 10 10 Poland 10 10 0/10 China 10 10 10 Romania 10 10 10/15 Czech Republic 10/15 10 0/10 Russiab 15 10 0/10 Denmark 10/15 10 10 Singapore 5/15 10 10 Egypt 15 — 15 Slovakia 10/15 10 0/10 Fiji 10/15 10 10 South Africa 5/15 10 10 Finland 10/15 10 10 South Korea 5/15 10 10 France 0/5/10 0/10 0 Spain 10/15 10 10 Germany 10/15 10 10 Sri Lanka 20 0/20 0/10 Hong Kong 5/10 0/10 5 Sweden 0/5/15 10 10 Hungary 10 10 0/10 Switzerland 10/15 10 10 India 10 10 10 Thailand 15/20 10/20 15 Indonesia 10/15 10 10 Turkey 10/15 10/15 10 Ireland 10/15 10 10 United Kingdom 0/5/10 0/10 0 Israel 5/15 10 10 United States 0/5/10 0/10 0 Italy 10/15 10 10 Vietnam 10 10 10 Kazakhstan 5/15 10 10 Zambia 0 10 10 Luxembourg 5/15 10 10 (a) The treaty rates apply only if the income is not attributable to a permanent establishment in Japan; otherwise, a flat rate of 20% generally applies. Multiple rates in this table refer to preferential rates to tax-qualified dividends, interest and royalties. For dividends, the rates may vary according to equity holding ratios. For interest, lower rates typically apply if the beneficiary is a financial institution. Rates on royalties may vary according to the type of intellectual property involved. (b) The Russia–Japan treaty applies to the following former Soviet Union states: Armenia, Azerbaijan, Belarus, Georgia, the Kyrgyz Republic, Moldova, Tajikistan, Turkmenistan, Ukraine and Uzbekistan.
Source: Ministry of Finance.

Intercompany charges

Pricing between internationally related parties should be at arm’s length, with the taxpayer having the burden of proof concerning the reasonableness of the pricing. (Internationally related parties are defined as those with a relationship consisting of a foreign shareholding of 50% or more, either direct or indirect.) If the taxpayer fails to provide proof or disclose evidence, the authorities have the discretion to increase taxable income. Advance confirmation of the reasonableness of the taxpayer’s methodology may be obtained from the National Tax Agency (NTA). The advance-pricing arrangement or agreement (APA) has been available in Japan since 1987 as a mechanism for resolving in advance transfer-pricing differences between a taxpayer and the NTA. Basically, an APA is an agreement on an appropriate transfer-pricing methodology for covered transactions. If a taxpayer files a tax return as a counterparty to an APA, confirmed transactions covered by the APA are treated as having been conducted at arm’s-length prices. The number of bilateral and multilateral Japanese APA cases involving foreign tax administrations increased sharply from 21 in 1997 to 149 during tax year 2009 (April 1st 2009–March 31st 2010), according to Ernst & Young.

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The APA programme has evolved from mutual-agreement procedures (MAP) that the NTA had been using to establish a broad understanding on the terms of transfer pricing with taxpayers and foreign tax authorities. Therefore, a MAP case may or may not involve an APA. If a taxpayer files a request for MAP, the taxpayer can request a deferral of the payment for both corporation tax and local taxes by providing collateral. Turnover, sales and excise taxes Japan’s national and local indirect tax, known as the consumption tax, applies to purchased goods and services. (Export transactions including international communications and transport are exempt from consumption tax. It is a broad value-added tax charged to end-users; hence, businesses in effect collect the tax. The tax rate is 5% (made up of a 4% national consumption tax and a 1% local consumption tax). There has been considerable debate in recent years over doubling the consumption tax to 10% to help finance the country’s basic publicpension plan rather than the present funding mix of taxes and premiums. However, political hurdles remain too high for any consumption tax increase to become a reality anytime soon. The amount of consumption tax payable by businesses is based on the total amount of sales in a given tax year. Since April 2004, retailers and service providers must display price tags that include the 5% consumption tax. If taxable sales for consumption tax purposes exceed ¥10m in the base period (two years before the current year), the company must file a consumption tax return. Corporations with taxable sales of ¥10m or less for the base period are exempt from the consumption tax regime, but they may elect to forgo the exemption status and become a voluntary taxpayer to qualify for deductions or refunds of the consumption tax they paid on their purchases. Under legislation passed in June 2011, this exemption will not apply if the corporation has more than ¥10m taxable sales in the first six months of the prior business year. In addition, if a corporation’s taxable sales ratio is 95% or more, 100% of input consumption tax on taxable purchases is creditable. However, under the legislation of June 2011, this will not apply if the corporation has more than ¥500m of taxable sales. The following transactions are defined as non-taxable: (1) transfer or leasing of land; (2) transfer of securities; (3) transfer or exchange of currency; (4) interest on loans, guarantee fees and insurance premiums; (5) medical care covered by insurance; and (6) education and welfare. The taxable base for imported goods is the cost-insurance-freight (cif) value of the goods assessed for customs purposes and customs duties. Tangible assets imported from a bonded area are subject to the tax. Intangible assets purchased from abroad are taxable only when the transaction is considered a domestic transaction. For example, royalty payments for the use of patents or trademarks that are registered only in Japan are subject to the tax, even if the payment is made outside Japan. All export transactions are tax exempt, but evidence of export is required. The following defines export transactions: (1) transfer or lease of a tangible or intangible asset for use outside Japan; (2) performance of services for a company resident outside Japan; (3) international transport of passengers or

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freight, and telephone and postal communication between Japan and a foreign country; (4) transfer, leasing or repair of a vessel or aircraft. A “provisional” tax on petrol that had reached about ¥25 per litre since its introduction in 1974 had expired in April 2008 but was reinstated in May 2008. The one-month lapse in the tax was triggered by political wrangling between the ruling coalition and opposition parties over petrol tax levels, given high global fuel prices. The tax is used to fund road-development projects. Other taxes Registration and licence tax applies on registrations in official books or documents for the acquisition, creation, transfer, alteration or lapse of rights; for the practice of certain professions; and for obtaining a business licence. Taxable registrations and licences include registration of real property and ships; registration of commercial companies; registration of patent rights, design rights, utility-model rights and trademarks; registration for practice by qualified lawyers, doctors, accountants and appraisers; a licence to operate in the banking business; and liquor-business licence. Registration tax rates vary with the value of property. Stamp duties of ¥200–600,000 apply on persons for the execution of taxable documents such as deeds of contract and certificates. Under the Tohoku Legislation enacted in April 2011 to provide relief to victims of the March 11th 2011 earthquake and tsunami in north-eastern Japan, stamp duty is eliminated for loan contracts between local governments or government-affiliated financial institutions and victims of the disaster, signed between March 11th 2011 and March 31st 2021. Real-property transfer contracts or real-property construction contracts for victims of the disasters signed during the same period are also exempt from stamp duty.

Personal taxes
Overview Individual income tax comprises self-assessed income tax and withholding income tax. Self-assessed income tax applies on income for the calendar year. Residents must submit an income tax return for the income earned each year (except when withholding at source provides for all tax-payment procedures) and must pay the tax owed between February 16th and March 15th of the following year. Some low-income taxpayers need not file tax returns if (1) total income does not exceed the combined total of deductions and (2) total income from employment (as the only taxable income) does not exceed ¥20m. Anyone having a domicile in Japan at January 1st each year is subject to the local-inhabitant tax levied by prefectures and municipalities. The local taxes are assessed on income for the preceding year. Joint filing is not permitted. The income of each spouse is assessed and taxed separately. The Income Tax Law of 1965 covers three residential-status categories, as follows: • A permanent resident is an individual with a domicile or residence in Japan for one year or longer. He or she must report worldwide income as taxable income.

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• A non-permanent resident is a non-Japanese national with a domicile or residence in Japan for a period of less than five years in the preceding ten years, and with no intention to live in the country permanently. He or she must report Japanese-sourced income and foreign-sourced income paid in or remitted to Japan as taxable income. • A non-resident is an individual who does not qualify as a permanent or non-permanent resident. He or she must pay tax only on Japanese-sourced income. Salaries, wages, bonuses and other allowances are viewed as income from sources in Japan if services are performed in the country. A non-resident’s tax liability is usually settled on a withholding basis, except for capital gains from a transfer of real property. A person entering Japan as an employee is presumed to be a resident immediately upon his or her entry into Japan unless evidence shows that the stay in Japan is to be for less than one year. The employer withholds workers’ income tax on salaries, wages and other allowances at the time of payment. In addition, the employer compiles the annual tax returns of corporate employees, including year-end adjustments to withheld payments. However, an employee must individually report his or her earned income under any of the following circumstances: (1) when he or she permanently leaves Japan; (2) when he or she has total income exceeding ¥20m; and (3) when he or she has earned employment income from abroad. The Income Tax Law provides the tax codes for individual income on a withholding or self-filing basis. Determination of taxable income Taxable individual income is based on the calendar year. Income tax applies on a self-assessment basis, with liability determined by the taxpayer’s declaration based on proper records of the tax base and the tax amount due. Income tax on employment income is withheld according to various tax tables based on a taxpayer’s income and his or her personal deductions. There are separate tables for periodic employment income and for bonuses and other special payments. Interest (including gains from the redemption of certain discount bonds), dividends, retirement allowances and other types of personal compensation other than salary income are also subject to withholding at source. Taxable income for purposes of the local-inhabitant tax is calculated under rules in the Income Tax Law, unless otherwise specified by local tax laws. The Income Tax Law stipulates that employment income includes salaries, wages, bonuses and other allowances (such as for cost-of-living, housing, tax, children’s education or medical) received as compensation for services provided as an employee. Some allowances (such as for commuting) are not taxable, but low-interest loans provided by the employer for buying an employee’s residence and other expenditures are taxable. Compensation other than employment income is generally taxable as business or miscellaneous income, and it is calculated differently from employment income. Because of the widespread use of the withholding tax system and year-end adjustments, very few wage and salary earners need to file final tax returns. Employees must individually report their earned income if (1) they permanently leave Japan; (2) have total income exceeding ¥20m; or (3) have earned employment income from abroad. The Income Tax Law provides the

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tax codes for individual income on a withholding or self-filing basis. The system requires that income derived from interest, dividends, employment and retirement is to be taxed at source and at the time of payment. A resident taxpayer is entitled to a basic personal allowance of ¥380,000. An allowance of ¥380,000 is also permitted for a spouse, and special allowances exist for the disabled and for low-income households. The 2010/11 tax reform (from April 1st 2010) eliminated the ¥380,000 exemption for each dependent aged 15 and younger, and reduced the exemption for other age brackets (see table below). To replace the tax exemption, the Diet (parliament) in March 2010 passed a separate law that provides a monthly child-rearing allowance of ¥13,000 for each child aged 15 and younger, as from April 1st 2010. Foreign residents who have lived in Japan for more than a year are entitled to the new child-rearing allowance regardless of where their children live, even if overseas. Furthermore, the allowance is exempt for individual income tax purposes. Applications may be made with the Ward Office in a municipality. The Diet had failed to enact the proposed 2011/12 (April 1st to March 31st) tax reform by mid-August 2011, because of the failure of the ruling Democratic Party of Japan (DPJ) to get the co-operation of the opposition-controlled upper house. Among other measures, the proposed tax reform would have abolished the deduction for adult dependants and increased the monthly child-rearing allowance to ¥20,000 per child, from April 1st 2011. However, the DPJ was able to muster enough votes to enact legislation that would allow the continued payment of the ¥13,000 child-rearing allowance for the rest of the fiscal year ending March 31st 2012. In addition to the personal tax exemption, a cumulative employment-income deduction applies, with the following schedule: 40% of gross employment income up to ¥1.8m, with a minimum of ¥650,000; ¥180,000 plus 30% on income exceeding ¥1.8m and up to ¥3.6m; ¥540,000 plus 20% on income exceeding ¥3.6m and up to ¥6.6m; ¥1.2m plus 10% on income exceeding ¥6.6m and up to ¥10m; and ¥1.7m plus 5% on income exceeding ¥10m. Social-insurance premiums are fully deductible, and life-insurance premiums may be deducted up to ¥50,000. Taxpayers may also deduct casualty-insurance premiums of up to ¥3,000 (up to ¥15,000 if the policy has a term of ten years or longer). Medical expenses and contributions to charities recognised by the Ministry of Finance are partially deductible. Unreimbursed medical expenses are deductible if they exceed the smaller of 5% of income or a total of ¥100,000, but there is a ¥2m cap on the combined amount of deductions that can be claimed for the year. The first ¥10,000 in qualifying contributions is not deductible; amounts over ¥10,000 are deductible up to 25% of gross income. Qualifying contributions include those made to governments, municipalities, organisations, corporations, the Japanese Red Cross and foundations for educational, social welfare, scientific or similar purposes. Under legislation enacted by the Diet in June 2011, when individuals make qualified donations to designated non-profit organisations, they can claim tax

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credits equal to 40% of the donations in excess of ¥2,000, up to 25% of their income tax liability for the taxable year. Housing loans are eligible for tax credits over ten years at a rate of 1% of the qualified amount of an outstanding loan. The taxpayer’s income must not exceed ¥30m to qualify for the residential mortgage tax credit. A housing allowance becomes subject to tax if the employee pays considerably less than 50% of the reasonable rent for a property. Non-cash fringe benefits are taxable, such as employer-provided private health insurance. Gifts of up to a total of ¥25m may be exempt from gift tax. Residents who pay foreign income taxes may credit these against their Japanese taxes or deduct them from taxable income as necessary expenses. Personal education expenses and relocation expenses are deductible from personal income tax. Personal capital gains on public and corporate bonds are tax exempt (and losses are not recognised). This privilege is not available for bonds with warrants and privately placed bond investment trusts. Zero-coupon bonds issued by Japanese companies abroad are another exception. Rather than paying interest on a periodic basis, these bonds are issued at a discount from their par value and increase in value as they approach maturity. Japanese tax codes treat this discount on zero-coupon bonds as capital gains. Under the Tohoku Legislation passed by the Diet in April 2011 to provide relief to victims of the March 11th 2001 earthquake and tsunami in north-eastern Japan, individuals who suffered disaster losses on their residence or other property may claim, by election, disaster-loss deductions under the Income Tax Law or tax exemption under the Disaster Relief Law. If the disaster-loss deduction under the Income Tax Law is elected, the disaster losses are deductible from the 2010 taxable income (as the earthquake and tsunami are deemed to have occurred in 2010), and any excess losses may be carried forward for five years (up from three years prior to the Tohoku legislation). If tax exemption under the Disaster Relief Law is elected, the disaster loss is also deemed to have occurred in 2010. In addition, under the Tohoku legislation, donations by individuals related to the earthquake and disbursed over March 11th 2011–December 31st 2013 to certified non-profit organisations or the Central Community Chest of Japan may claim income deduction for up to 80% of total income. Alternatively, a tax credit for up to 40% of the total income may be claimed instead of an income tax deduction. This rule applies to individual tax returns for 2011, 2012 and 2013. Share options are relatively new in Japan. The National Tax Agency (NTA) has come under pressure to set clear rules, consistent with international standards, on taxing share options. An amendment to the Commercial Code implemented on April 1st 2002 allows companies to offer share options to anyone (even lawyers and business consultants) if shareholders approve. Companies could previously offer share options only to board members and to employees. The NTA generally treats share-option gains as employment income instead of as extraordinary income, which is taxed at about half the rate. The difference

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between grant price and fair market value is taxed when the share options are exercised. The NTA taxes, on a time-apportionment basis, the share-option gain recognised by any individual who was resident in Japan at any time during the period between the grant and exercise dates. There are no withholding requirements on the exercise of shares of non-Japanese companies. The individual must report such income to the NTA on the annual personal tax return. There have been many lawsuits contesting the NTA’s treatment of income derived from share options. Recent court decisions have ruled that share-option income should be categorised as employment income, upholding the NTA’s position.
Personal tax rates, 2011
Taxable income (¥) 0–1.95m Over 1.95m to 3.3m Over 3.3m to 6.95m Over 6.95m to 9m Over 9m to 18m Over 18m Tax deduction for dependent children Rate on bracket (%) 5 10 20 23 33 40

National income tax Local inhabitant tax (¥) (¥) Age 0–15 None None Age 16–18 380,000 330,000 Age 19–22 630,000 450,000 Age 23 and older 380,000 330,000 The following is an outline of the personal tax calculations for two individual residents, each with two dependent children (younger than age 16) and a dependent spouse, who earn ¥5.4m and ¥9.72m. (They are assumed to be covered by life insurance but do not carry personal pensions. Local-inhabitant tax is not included in this calculation.) Item Gross income Net from adjustment sheet for year-end income* Deductions: Basic allowance Annual social insurance Life insurance Property/casualty insurance Dependent spouse Other dependants Total deductions Taxable income Income tax payable (per above rates) Tax as a percent of gross income
Sources: Ministry of Finance; Economist Intelligence Unit calculations.

Person 1 ¥5,400,000 3,780,000 380,000 599,280 50,000 3,000 380,000 0 1,412,280 2,367,720 236,772 4.38%

Person 2 ¥9,720,000 7,548,000 380,000 1,738,920 50,000 3,000 380,000 0 2,551,920 4,996,080 999,216 10.28%

*Published by tax authorities in accordance with the standard earned-income deduction schedule.

Personal tax rates

Personal tax rates are progressive, with six brackets of 5–40%. Persons residing in Japan on January 1st of the year are subject to the local-inhabitant tax— prefectural tax of 4% and municipal tax of 6% on taxable income.

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A 20% withholding tax (including 5% local-inhabitant tax) applies on all dividends and capital gains paid to an individual resident. For non-resident individuals, tax treaties between Japan and the respective countries supersede the local taxation rules on dividends and capital gains. Similarly, a 20% withholding tax applies on interest paid to an individual resident taxpayer. The normal withholding tax on interest paid to non-residents is also 20%, but tax treaties reduce this for recipients in many countries. Capital taxes Inheritances and gifts that exceed basic exempt amounts are taxable at steeply graduated rates of 10–50%. Depreciable fixed-assets tax applies, at a municipality level, at an annual rate of 1.4–2.1%. City-planning tax applies on land and buildings in certain urban areas as a surtax on fixed-asset taxes, at a rate of 0.3% on land and structures within city planning zones. Real-property acquisition tax applies on purchases of land or buildings, at 3% of acquisition value. Moreover, a registration and licence tax applies on the registration of real property, along with a stamp duty payable as a tax on stipulated documents.

Competition policy
Overview The Japan Fair Trade Commission (JFTC) acts as the watchdog for enforcing the Anti-monopoly Law of 1947, which remains the backbone of competition and price policies in Japan. The Anti-monopoly Law prohibits private monopolies, unreasonable trade restraints and other unfair business practices. It also regulates international agreements and contracts that restrict competition. Under the law, the JFTC requires companies to report certain share acquisitions, mergers, business transfers and spin-offs within 30 days. Non-compliance with these notification requirements incurs hefty fines. The Anti-monopoly Law includes criminal accusation and investigation procedures and related penalties for interfering with investigations; streamlined hearing procedures; and a corporate-leniency programme for some economic crimes. Surcharges on violations of the Anti-monopoly Law may increase depending on the size of the company cited. The anti-monopoly legislation was revised most recently in June 2009 to expand the scope of violations subject to surcharges, raise fines on ringleader companies in bid-rigging and cartel activities by 50%, and increase the maximum jail term for cartel and bid-rigging individual violators to five years from three years. The amendments of 2009 expanded the corporate-leniency programme, allowing regulators to waive or reduce penalties for multiple companies admitting to violations in return for leniency. The amendments of 2009 came into force in January 2010. In Japan, unlike in the United States, private parties do not have the legal standing to bring civil actions under antitrust law. Consequently, the JFTC institutes virtually all such suits in Japan. Under a 1999 bilateral antitrust agreement, the JFTC and the US Federal Trade Commission help each other in antitrust-enforcement activities and consider co-ordinating investigations involving the markets of both countries. The JFTC

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entered into similar agreements with the European Commission in 2003 and Canada’s Competition Bureau in 2005. The interests of the JFTC often differ from those of the more entrenched regulators in Japan’s various ministries. For example, foreign companies new to sectors regulated by the Ministry of Economy, Trade and Industry or other ministries, often find themselves attempting to prove to a group of their competitors that they will have no adverse effect on them. The ministries call such meetings of “concerned parties” if they see the need to review competitive conditions in the sector. This non-tariff barrier goes by the euphemism of “demand-supply adjustment” in market-entry regulation and price regulation. This is particularly true in financial services, one of the most heavily regulated industries. During fiscal year 2010 (April 1st 2010 to March 31st 2011), the JFTC said it had issued cease-and-desist orders in 12 cases, including four bid-rigging violations, six price-fixing incidents by cartels, and one case each of abuse of superior bargaining position and trading on restrictive terms.
Promotion of competition
(score; 5=high)
G7 (av) 5.0 4.0 3.0 2.0 1.0 0.0 Japan

2006

07

08

09

10

11

12

Source: Economist Intelligence Unit.

Monopolies and market dominance

The Anti-monopoly Law of 1947 empowers the Japan Fair Trade Commission (JFTC) to break up companies it defines as monopolistic. But this power is limited since such action requires consultation with the powerful, pro-business Ministry of Economy, Trade and Industry (METI). Several major multinational companies including Intel and Microsoft of the US have run into legal disputes with the JFTC during the past decade over their business practices in Japan. The commission enforces various reporting and notification requirements on large business organisations under the Anti-monopoly Law. They are broadly divided into two categories: one for going concerns and the other for new companies. Hence, a company and its subsidiaries with combined assets of ¥2trn (¥600bn for holding companies and ¥8trn for banks, insurers and securities companies) must file reports on business operations with the JFTC within three months of the closing of books every year. A newly established company that meets the same asset-size tests must declare to the JFTC the nature of its business operations, including any subsidiaries, within 30 days from the date of establishment.

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The JFTC polices collusion in pricing. If the top three companies in an industry account for more than 70% of the market and the total annual value of goods they supply to Japan exceeds ¥30bn, the JFTC can investigate if the companies practise parallel pricing (that is, they raise prices by the same or similar margins within three months of one another). For companies found to have formed illegal cartels or to have raised prices in concert, the JFTC assesses a surcharge on the amount of sales generated during the illegal-action period: 10% for manufacturers, 3% for retailers and 2% for wholesalers. Smaller surcharges apply to small and medium-size enterprises. The JFTC may increase or decrease these penalties by 20%, depending on the circumstances surrounding a violation. A June 2009 amendment to the Anti-monopoly Law raised surcharges against ringleader companies in bid-rigging and cartel activities, from 10% to 15%, regardless of the company’s size or industry. The amendment increases the top jail term for cartel and bid-rigging crimes, to five years (from three years). The Anti-monopoly Law (including amendments of June 2009) considers the following business practices to be unfair: abuse of a superior bargaining position; deceptive customer inducement; discriminatory treatment on transaction terms; dealing on exclusive terms; dealing on restrictive terms; exclusionary types of private monopolisation (excluding the business activities of other entrepreneurs); interference with a competitor’s transactions; interference with a competitor’s international operations; tie-in sales; unjust high-price purchasing; and certain types of unfair trade practices such as concerted refusal to trade, discriminatory pricing, unjust low-price sales and resale-price restrictions. The JFTC has a number of guidelines under the Anti-monopoly Law and several related laws, such as the Subcontract Act of 1970, for providing the basics of competition-policy enforcement in the following areas: mergers and acquisitions, unfair trade practices, parallel pricing, trade associations and other anti-monopoly issues. For instance, the “Guidelines Concerning Designation of Specific Unfair Trade Practices by Large-Scale Retailers Relating to Trade with Suppliers; Guidelines for Large-Scale Retailers”, issued in May 2005 and implemented in November 2005, lists unfair trade practices by powerful retailers with annual sales of ¥10bn or more and sales-floor space of 1,500 sq metres (3,000 sq metres in Tokyo) as violations of the Anti-monopoly Law. Among the unfair trade practices cited are return of goods for unwarranted reasons, after-purchase price cutting, exploitation of supplier manpower and forced arrangement of sales outsourcing (in which a large retailer will use its dominant position to make its suppliers send their own employees to help operations at the retailer’s stores, usually without compensating the supplier). With a view to opening Japan’s markets to both domestic and foreign business, the JFTC is tightening rules on practices that block entry into markets. These include requirements for trade-association membership and the use of government regulations to fend off competition. The JFTC has undertaken a major reform against cartels since in the 1990s. However, Japan’s large industrial groups, known as keiretsu, constitute de facto cartels. These tight networks of companies that share capital, research and

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development, customers, vendors and distributors, based around large banks and trading houses, play a powerful role in the economy and are deeply rooted in the country’s economic history. There are two types of keiretsu: horizontal and vertical. Horizontal keiretsu often consist of a bank at the core and many companies from related and unrelated industries clustered around it. Member companies may be major manufacturers, large service providers (like life-assurance companies) and other important companies. General trading companies also set up operations at the core of major horizontal keiretsu. They function primarily in wholesale trade, especially in commodity items. Vertical keiretsu centre on a major manufacturer that is not part of a horizontal keiretsu. Unlike in a horizontal keiretsu, with its member companies in diverse industries, the members of a vertical keiretsu are usually in a single industry. They consist primarily of supplier and distributor relationships that service the large manufacturer at the core of the group. A series of mega-bank mergers that have created giant Japanese banking groups across keiretsu lines in recent years are weakening the solidarity among member companies. Recent legal amendments that allow for triangular mergers by foreign companies (whereby the subsidiary of the acquiring corporation merges with the target company and the subsidiary offers the parent’s shares in the transaction) have led to a slight increase in cross-shareholdings. Nonetheless, the broader trend has been towards fewer keiretsu and efforts to reform the Japanese system of corporate governance. Most notably, a new holdingcompany system is changing the picture of big business. A post-war ban on holding companies aimed to prevent the revival of the pre-war zaibatsu industrial groups (which were even tighter versions of keiretsu). An amendment to the Anti-monopoly Law ended this ban in December 1997. The JFTC’s guidelines on holding companies have the following stipulations: • A holding company is defined as an enterprise with more than 50% of its assets in shares of its subsidiaries; a subsidiary is defined as a company with more than 50% of its outstanding shares held by its parent company. • Any holding company with more than ¥300bn in total assets in its group must report its formation to the JFTC. • A holding company with a financial component and having more than ¥15trn in assets will be banned for excessive concentration of business, as will one with a non-financial component and more than ¥300bn in assets. These asset ceilings seem too low, given the size of many single Japanese companies. Nevertheless, some conglomerates have embraced the opportunity to regroup their operations under holding-company structures. Banks, securities companies and insurers have been allowed since March 1998 to organise groups. A bank-led holding company is supposed to hold stakes of more than 50% in each of its subsidiaries in banking, securities, trust banking, insurance and investment-trust advisory services. But it may not have non-financial companies under its control. The recent banking mergers in Japan, which

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created several of the world’s largest financial institutions, were formulated under this law. Securities and insurance holding companies are supposed to have securities and insurance subsidiaries, respectively, but the distinction among bank, securities and insurance holding companies is gradually disappearing with continued deregulation and a trend towards universal banking. The Anti-monopoly Law prohibits financial institutions—if not part of a financial holding company—from holding 5% or more of the outstanding shares in a domestic company (but insurance companies may own up to 10%). The law introduced these restrictions to prevent a concentration of economic power in the hands of banks at the centre of a keiretsu business group. Banks and other financial institutions can obtain permission from the JFTC for exceptions to these rules. The JFTC’s guidelines set 10%, 25% and 50% as important sharepurchase thresholds, at which the effects on competition must be examined. One of the consequences of the global economic downturn that began in 2008 is a heightened state of alert among international competition authorities against cartel activities. The JFTC is no exception. For example, in May 2011, the JFTC issued cease-and-desist orders against four manufacturers and distributors of airseparation gases (such as oxygen, nitrogen and argon) and fined them a total of ¥14.1bn for agreeing among themselves to raise prices of these products by 10% in 2008. In November 2010 the JFTC also found six manufacturers and distributors of electric wires liable for price fixing and fined four of them a total of ¥10.8bn. Mergers The Commercial Code sets out the procedures for corporate mergers in Japan, but there are also rules in the Financial Instruments and Exchange Law of 2006, the regulations of the individual stock exchanges, the Anti-monopoly Law of 1947 and other business laws. Merging companies will need to prepare a merger schedule that considers these various reporting and licensing provisions. The Japan Fair Trade Commission (JFTC) tries to be flexible in the application of the Anti-monopoly Law, and it has thwarted few deals. The commission’s policy on mergers and acquisitions and other types of “joint relationships” is described in comprehensive guidelines. They define the effects of a merger, an acquisition or formation of other joint relationships that may “substantially” restrict competition. In principle, mergers must be filed with and approved by the JFTC. If a tie-up is subject to reporting under the Anti-monopoly Law, it must be reported to the JFTC at least 30 days in advance. The parties to a proposed merger can consult with the JFTC to determine the likelihood of problems in gaining approval. The JFTC must inform the parties of any problem within 30 days of being notified. Under an amendment to the Anti-monopoly Law enacted in June 2009 and in force from January 2010, the following will trigger notification requirements: if the acquiring company or corporate group has a total domestic turnover of at least ¥20bn and the target company or corporate group has consolidated domestic turnover of at least ¥5bn. The same notification thresholds apply to both Japanese and foreign corporations. The amendment also incorporates the concept of a corporate group consisting of the parent company of the acquirer

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and its subsidiaries. A combination within the same corporate group will be exempt from notification requirements. There are no reporting requirements for interlocking directorates. For share acquisitions, notification requirements will be triggered when a corporate group’s ownership of voting shares in a Japanese company rises above 20% and 50%. This must also be reported to the JFTC at least 30 days in advance. The JFTC published new merger guidelines in March 2007 that shifted the emphasis from market share to market concentration, similar to the method used by regulators in the United States. The JFTC previously focused on whether a merger between parties would create a combined market share of more than 35%. The new guidelines will also take into account how a merger affects market concentration, using the Herfindahl-Hirschman Index (HHI), which uses the sum of the square of the market shares of each company in a particular industry to gauge concentration. The guidelines of 2007 let the JFTC approve mergers without review if one of the following three conditions are met: (1) if the industry’s HHI is 1,500 or less after the merger; (2) if the industry’s HHI prior to a merger is 2,500 or less, the figure rises by no more than 250 through the merger; or (3) if the industry’s HHI before the merger is more than 2,500, the figure increases by 150 or less through the merger. Freedom to sell Japan’s Anti-monopoly Law of 1947 bans discriminatory treatment of other entrepreneurs, concerted price increases, under-pricing to attract customers and similar practices. Exclusive distributorships are allowed, but the law expressly forbids a foreign supplier and Japanese distributor from unduly hindering parallel importing of goods covered by an agreement. It is possible to sue an unauthorised dealer. Companies must also be careful about discriminatory pricing. The Japan Fair Trade Commission (JFTC) has sometimes banned price variations between different geographical areas or between large and smaller orders. There are particular restrictions on large retail stores in Japan under the LargeScale Retail Store Location Law of 1998. The legislation, implemented in June 2000, regulates the economic and environmental effects of retail operations with floor space exceeding 1,000 square metres. It eased limits in an earlier law on the opening of large retailers near smaller shops, and followed foreign complaints about unfair restrictions on businesses and violations of the World Trade Organisation’s service-sector agreement. The real effect of the legislation has been overwhelmingly positive and has allowed several global retailers to move aggressively to expand their operations. Wal-Mart Stores (US), Costco Wholesale (US) and Ikea (Sweden) have been leading foreign discount-store chains into the market by opening new outlets throughout the country. However, Japan’s tough retail environment has proved too difficult for many large foreign retailers. Such companies often face the high cost of real property, difficulty in securing large, conveniently located plots of land and complex distribution systems.

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Price controls

Japan has no formal price controls, but indirect regulation influences prices on a wide range of products. For decades, major producers, backed by regulators ostensibly concerned with stability, have been able to dictate retail as well as wholesale prices. However, weak economic conditions and deregulation programmes have enabled discounters to undermine much of this structure. Although prices for many imported consumer goods have fallen sharply in recent years, they remain substantially higher than international prices. The present government policy is to encourage lower prices by eliminating regulations, rationalising the distribution system and increasing anti-monopoly efforts, while easing deflationary pressure on real property. Power companies have free rein to set retail charges for customers using at least 2,000 kw a year, a privilege also accorded to gas utilities for contracts of at least 1m cubic metres. These companies must report charges to smaller users to the Ministry of Economy, Trade and Industry. An amendment of the Food Law (passed in June 2003 and implemented in April 2004) opened the way for price deregulation in the rice market by implementing a gradual shift away from government control over rice production and distribution. Despite this amendment, the government continues to implement a price-support policy, which limits rice planting to about 60% of Japan’s paddy fields. Japan has not lifted this policy, which dates back to 1971, for fear that rice prices could collapse. In addition, the government continues to support rice farmers by buying the grain when prices fall.
Price controls
(score; 5=few)
G7 (av) 5.0 4.0 3.0 2.0 1.0 0.0 Japan

2006

07

08

09

10

11

12

Source: Economist Intelligence Unit.

Exchange controls
Overview Japan took its most decisive step towards foreign-exchange (forex) liberalisation in May 1997 with a major revision to the 1980 Foreign Exchange and Foreign Trade Control Law. The revised law, implemented in April 1998, was renamed the Foreign Exchange and Foreign Trade Law and eliminated most of the remaining forex controls. The following are the main provisions of the law: • It abolished the authorised forex-bank system, which required all forex entering and leaving the country to pass through particular banks authorised by the Ministry of Finance (MOF). The revised law permits any entity or individual
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to conduct forex business as long as it complies with the Banking Law and other financial-services regulations; • It included “electronic money” in the definition of the means of payment;

• It liberalised netting and other crossborder settlements. Permits for such transactions are no longer required; and • It abolished permission and prior-notification requirements in favour of ex post facto reporting to guarantee free capital transactions. The Ministry of Finance retains the right to review the above conditions in order to comply with economic sanctions and other international actions or to correct any “dramatic imbalance” in the balance of payments. It can also limit the freedom of forex transactions to prevent illegal activities. An amendment was made to the Foreign Exchange and Foreign Trade Law in February 2004 along these policy lines. The amendment specifically allows the government to invoke economic sanctions against North Korea in the form of restrictions on remittances to and trade with the communist country, even without international authorisation such as a UN resolution. Japan is a member of the Financial Action Task-Force (FATF), an international agency based in Paris that has emerged as the main global watchdog for money-laundering and terrorist-financing. In response to FATF concerns, Japan passed the Anti-Organised Crime Law, which took effect in February 2000. This extended the definition of the crime of money-laundering to include more than 200 activities. It also established the Japan Financial Intelligence Office. For the everyday application of the Foreign Exchange and Foreign Trade Law’s liberalised regulations, the MOF has the following guidelines: • Companies and individuals may open an overseas current account denominated in yen or other currencies. • Companies and individuals may freely engage in crossborder lending and borrowing. • US-dollar-based settlements between companies may freely take place to save conversion costs. • Individuals may freely exchange US dollars, and domestic retail stores may accept dollars for payments. Retail sales of financial products may be denominated in foreign currency. Domestic investors may buy and sell foreign securities on their overseas accounts. Prior notification is not required (though ex post facto reporting is) for a non-resident’s issue of domestic bonds (such as samurai or shogun bonds), or for a resident’s issue of overseas bonds (such as Eurobonds). There are no restrictions on forex brokers, including on derivatives trading and over-the-counter retail trading in forex (hence, for example, street vendors, supermarkets and other retail establishments may operate currency shops).

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Repatriation of capital

Capital related to approved investments may be freely remitted at prevailing foreign-exchange rates. No tax is withheld on the repatriation of branch profits to the home office. An amendment to the Japan–United States tax treaty, in force since July 1st 2004, stipulated that either country may tax gains from the sale of assets of a permanent establishment under its jurisdiction and from the sale of containers, trailers, barges and related equipment used solely in that country.

Profit remittances

Investors may remit earnings from validated investments without restriction, at prevailing foreign-exchange rates. Remittances made by a branch of a foreign corporation to its head office are in principle free from taxation. Hence, the payer branch cannot ordinarily treat such remittances as expenses, and these same remittances may not be treated as income by the recipient head office. Certain remittances regarded as income to the parent company (like payments of interest, dividends and service fees) require withholding of income tax at the source at the time of payment.

Loan inflows and repayment

Domestic and foreign-owned companies may borrow freely from overseas and need only report these transactions to the Ministry of Finance (MOF). There are no restrictions on interest payments, loan maturities or credit ceilings for loans obtained overseas by foreign and domestic companies. Large foreign companies tend to use foreign sources for long-term financial needs, borrowing mainly in US dollars. There are no borrowing restrictions on resident or non-resident individuals. Principal and interest payments on overseas loans are freely permitted. Amounts exceeding ¥5m must be reported to the MOF. The validation of a licensing agreement carries an implicit guarantee of convertibility regarding the income arising from the agreement. After complying with simple formalities, a company may remit abroad without restriction royalties and licensing or technical fees stemming from validated agreements. Certain licensing agreements must be reported to the Ministry of Finance or other relevant ministries. There are no government-imposed limitations on receipt of export proceeds. No official restrictions apply to payments for imports. The Foreign Exchange and Foreign Trade Law of 1997 repealed all remaining restrictions on leading and lagging of payments. Most goods now qualify as “freely importable” and do not require an import licence. The only exception is for those commodities falling under import quotas, where the Japanese importer must apply for licence approval.

Remittance of royalties and fees

Restrictions on trade-related payments

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Policy towards foreign trade and exchange controls
(score; 10=good)
G7 (av) 10.0 8.0 6.0 4.0 2.0 0.0 Japan

2006

07

08

09

10

11

12

Source: Economist Intelligence Unit.

Trade policy
Overview Japan’s economy is highly dependent on foreign trade, and the global economic downturn that began in 2008 dealt a severe blow to the country’s exports. However, the level of exports began to rise in 2010, reflecting a recovery of Japan’s main markets. According to the Ministry of Finance (MOF), the value of exports increased by 14.9%, to ¥67.8trn, during fiscal year 2010/11 (April 1st– March 31st), from ¥59trn in 2009/10. The value of imports also rose, by 16%, to ¥62.4trn from ¥53.78trn during the year earlier period. Japan posted a trade surplus of ¥5.4trn in 2010/11. The United States was Japan’s biggest export market for many years. This has changed in recent years, however, with the slowdown in the economies of the US and other western markets. Japan has instead focused on increasing trade with China and its other Asian neighbours, such as the Association of SouthEast Asian Nations (ASEAN). According to the MOF, China was the top destination for Japanese exports in fiscal year 2010/11, accounting for ¥13.4trn of total merchandise exports during the year, followed by the US (¥10.4trn), the ten-member ASEAN trade bloc (¥9.89trn) and the European Union (¥7.7trn). The top sources of Japan’s imports in 2010/11 were China (¥13.8trn), the ASEAN bloc (¥9.1trn), the US (¥5.88trn) and the European Union (¥5.87trn). Top exports were transport equipment, which accounted for 22.2% of exports in 2010/11, followed by machinery such as power generators and computers (20.3%), and electrical machinery such as semi-conductors and electrical appliances (18.5%). Japan’s top imports in 2010/11 were mineral fuels such as petroleum (29%), electrical machinery (13.1%), manufactured goods (8.9%) and chemicals (8.8%). A growing sense of commitment to multilateral trade arrangements as well as Japan’s efforts to globalise its economy and promote international standards in industry, commerce and finance has mitigated trade pressure from the US and the EU, which are registering sizeable trade shortfalls with Japan and seeking a wider and easier access to Japanese markets. Japan has also implemented various deregulation measures since the 1990s to eliminate roadblocks to imports. Meanwhile, the government’s long-standing emphasis on import

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promotion is giving way to export promotion as the global economic recession is taking a toll on Japan’s export-dependent economy. Tariffs and import taxes Japan’s Ministry of Finance formulates tariff policies, and its Customs and Tariff Bureau implements these policies. Major legislation governing customs tariffs include Customs Law, Customs Tariff Law, Temporary Tariff Measures Law and the Customs Tariff Law Schedule. As a member of the Harmonised System, Japan shares a common international (maximum six-digit) trade-classification system. Japan’s import-tariff rates can be divided into law-based tariff rates and treaty-based tariff rates. Law-based tariffs (state-set tariffs) include the general rate, temporary rate and preferential rate. The Customs Tariff Law sets out the general (also called basic) rate that remains unchanged for a long time; the Temporary Tariff Measures Law sets out the temporary rate that applies for a specified period. The preferential rate under Japan’s Generalised System of Preferences Scheme (GSP) is applicable to developing countries. Treaty-based tariffs (also known as the conventional most-favoured-nation, MFN, rate) include World Trade Organisation or bound rates, which apply to all members of the WTO. A separate set of tariffs are set forth in economic partnership agreements (EPA) that apply to signatories of EPAs with Japan. Tariff status varies from country to country (for example, least-developed countries are generally granted zero tariffs); the updated table of countryspecific tariff information is available from the Japan Tariff Association (http://www.kanzei.or.jp/english/). Goods from the United States face WTO rates unless a lower temporary rate applies. According to the most recent trade profile for Japan published by the WTO, simple MFN tariffs averaged 5.1% in 2009; applied tariffs for all goods averaged 4.9%. Ad valorem tariffs cover about 90% of Japan’s tariff items. Nevertheless, specific tariffs apply to a range of imported products, including alcoholic beverages, foodstuffs, petroleum products and vegetable oils. Japan uses high tariffs to protect its high-cost but politically sensitive farming sector. Meanwhile, the government is obliged to maintain WTO-imposed minimum-access quotas under the tariff plan. A simplified tariff system for low-value imported freight worth less than ¥100,000 (such as small packages for personal imports) simplifies determination of tariff rates, eliminates the extra time necessary to determine the type of product and precise value, and minimises customs brokers’ handling charges. Importers may choose either the normal rate or the simple tariff, which might be higher or lower. It is possible to obtain an advance ruling on tariff classification and duty rates from a local customs office. Besides customs duty, there is a 5% consumption tax (general excise tax) on all goods sold in Japan. This applies on the cost-insurance-freight (cif) value of the product plus the import duty. Duties and consumption tax are payable when making an import declaration at the time of customs clearance by the importer. Packages containing items with a value of ¥10,000 or less are exempt from duty and consumption tax—except for certain products, such as leather goods.

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Indeed, tariffs have fallen to zero in many major sectors—such as cars, car parts, computers, crude oil, industrial machinery and software. Japan is the only industrialised country that puts no customs duties on imported cars. Import duties on agricultural items continue to decrease under WTO agreements, with notable exceptions—such as rice. Despite the continuing realignment of the Japanese tariff structure with international standards, there is still the issue of tariff escalation—the tendency for tariffs to be higher on processed goods than on the raw materials from which they are produced. Trade peaks—that is, a single tariff or a small group of tariffs that are particularly high (often defined as greater than three times the average nominal tariff)—also are a concern for companies exporting to Japan, since they present significant tariff barriers to market access. These higher tariffs typically apply to food products in order to protect domestic producers; they include 40% on processed cheese and 38.5% on beef.
Tariff and non-tariff barriers
(score; 5=low)
G7 (av) 5.0 4.0 3.0 2.0 1.0 0.0 Japan

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07

08

09

10

11

12

Source: Economist Intelligence Unit.

Import restrictions

Most goods now qualify as freely importable. Exceptions, provided for in the Foreign Exchange and Foreign Trade Law of 1997, require approval in the interests of the “sound development of foreign trade and the national economy”. These include compliance with conventions, resolutions of the United Nations Security Council and other international agreements (as for wildlife under the Washington Convention and hazardous waste under the Basle Convention). Some drugs, chemicals and fisheries products are subject to import-licence requirements. Also regulated are ammunition, military planes, substances related to nuclear power and weapons. Importers have to declare their imports to customs authorities after the arrival of their cargoes from foreign countries. Import declarations must include necessary documents such as an invoice, a bill of lading containing a shipper’s assurance of contents and a certificate of origin to obtain customs clearance. More than 90% of import procedures are now computerised. Penalties for false declarations (deflating import values to reduce import duties and consumption taxes) more than tripled in October 2005. Surcharges on false declarations were raised to 35% (from 10%), added to the duties and taxes owed, and surcharges for failure to make declarations increased to 40% (from 15%).

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Import controls are under the jurisdiction of the Ministry of Economy, Trade and Industry. The Customs and Tariff Bureau of the Ministry of Finance has its own list of items banned from import: (1) opium and other narcotic drugs, stimulants and psychotropic substances (excluding those designated by an ordinance of the Ministry of Health, Labour and Welfare); (2) firearms (such as pistols, rifles and machine guns), ammunition for such articles and firearm parts; (3) explosives; (4) gunpowder; (5) substances specified in the Chemical Weapons Prohibition Law; (6) pathogens specified in the Law on Prevention of Infectious Diseases; (7) counterfeit, altered or imitation coins, paper money, bank notes or securities; (8) books, drawings, carvings and other articles harmful to public security or morals (obscene or immoral material such as pornography); and (9) articles that infringe on intellectual-property rights such as patents, utility models, designs, trademarks, copyrights, neighbouring rights or layout designs of integrated circuits. Other imports may be subject to restrictions as provided by various domestic laws and regulations under different government agencies. For importing goods prohibited or otherwise restricted, the importer must obtain an import permit and official approval under the Customs Tariff Law and other relevant laws. These laws include the Basic Law on Biodiversity of 2008, Explosives Control Law of 1884, Fertiliser Control Law of 1948, Firearms and Swords Possession Control Law of 1958, Food Sanitation Law of 1947, Foreign Exchange and Foreign Trade Law of 1997, High-Pressure-Gas Safety Law of 1951, the Law Concerning Wildlife Protection and Hunting of 2002, Law on the Evaluation of Chemical Substances and Regulation of Their Manufacture of 1973, Narcotics and Psychotropics Control Law of 1951, Pharmaceutical Affairs Law of 1960, Plant Quarantine Law of 1950, Poisonous and Harmful Substance Control Law of 1950, and Stimulant-Drug Control Law of 1951. For environmental reasons, exports and imports of certain types of harmful waste require approval from the Ministry of the Environment. Japanese regulations severely restrict the use of chemicals and other additives in foods and cosmetics. Since February 2009, parcels entering or leaving Japan worth more than ¥200,000 must be declared in the Customs area and be accompanied with an entry or exit permit, either by the sender or receiver, or by the post office or customs-clearance agents. The Japanese Measurement Law of 1992 requires all imported products and shipping documents to show metric weights and measures. Country-of-origin regulations apply under various laws and requirements of the Japan Fair Trade Commission. Because all these laws and regulations apply specifically to individual products, it is important to work with a prospective agent/importer to ensure that the items meet any applicable requirements. Most labelling laws are not required at the customs-clearance stage but at the point of sale. In June 2003 Japan enacted the Law Concerning the Conservation and Sustainable Use of Biological Diversity Through Regulations on the Use of Living Modified Organisms. The law came into force in February 2004 at the same time that the Cartagena Protocol on Bio-safety took effect in Japan. The bio-safety treaty, adopted in Cartagena, Colombia, in January 2000, regulates

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international trade of genetically modified organisms (GMOs) in order to prevent imported GMOs from damaging ecosystems and to preserve biodiversity. The law requires GMO handlers, including importers, to obtain government approval before conducting experiments with GMOs or using them in the open air, and they must provide the government with a plan outlining GMO use and an assessment on the probable effect on biodiversity. The government can issue a retrieval order if problems are found in the plan. The inspection of genetically modified foods was made compulsory under a separate law enacted in 2001. An amendment to the Customs Tariff Law, passed in March 2004 and implemented that April, requires customs authorities to notify the holders of intellectual-property rights (IPR) of import declarations if the goods in question are suspected of infringing registered IPRs. The information should include the importer’s identity and address. The Japanese IPR holder may request an injunction against imports of certain products for IPR reasons. Importers of commodities that come under official import quotas must apply for licence approval. Japan maintains quotas on many agricultural products, and liberalisation tends to move ahead one product at a time. The country is steadily aligning regulations on farm imports with international standards, though its guidelines are still often seen as discriminatory. Japan has rescinded strict quotas for imported foodstuffs such as barley, beef, peanuts, rice, starch and wheat. Instead, it has set minimum-access quantities; imports exceeding these quantities are allowed, though they face high tariffs. Deregulation, often spurred by pressure from abroad, has helped to remove non-tariff barriers in sectors such as agriculture, cars, car parts, medical equipment and supplies, semiconductors and telecommunications equipment. In recent decades, the United States has exerted considerable influence over Japan’s foreign-trade regime with numerous complaints over market access. These have led to a series of bilateral agreements. Notable successes in Japanese-US trade include agreements on beef, citrus fruits and semiconductors. Trade agreements have been less effective for apples, insurance, construction and government procurement of telecoms equipment and services. The US also considers rice trade, port service and governmentprocurement practices to be problematic areas. For its part, the Ministry of Economy, Trade and Industry (METI) has criticised the use by the US of unilateral measures, including Section 301 of the US Trade Act, as contravening the free-trade principles of the World Trade Organisation. In Japan, anti-dumping filing proceedings take about a year before the government decides whether to impose punitive tariffs. The Ministry of Finance and the METI must commence investigations within two months after accepting dumping complaints from the private sector. The exercise of antidumping clampdown on imports is rare. Japan has an arrangement with the US to speed up border clearance of goods transported between the two countries. Under the agreement signed in June 2009 between the Ministry of Finance’s Customs and Tariff Bureau and the US Customs and Border Protection, Japanese exporters certified as the Authorised

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Economic Operator (AEO) receive preferential evaluation for clearing their cargoes through US borders. (The AEO programme does not cover exporters from the United States to Japan.) The AEO programme is a mechanism of the World Customs Organisation for promoting trade security. Brokers, carriers, distributors, exporters, importers, intermediaries, manufacturers, port and terminal operators and warehouses designated as AEOs after meeting certain requirements receive fast access to customs clearance. Since 2008 Japan has signed similar AEO mutual-recognition agreements with Canada, the European Union, New Zealand and Singapore. Under the agreements, certified companies in these territories can expect their shipments to be subjected to fewer inspections. However, the expedited entry process does not apply to goods originating from areas in Japan suspected of nuclear contamination as a result of the Fukushima nuclear disaster in March 2011. Japan also has so-called customs mutual assistance agreement ties with China, the EU, Macao, the Netherlands, Russia, South Korea and the US to facilitate effective co-ordination and information exchanges between customs authorities of the respective countries. Taxes on exports There are no explicit taxes on exports. Consumption tax does not usually apply to exports from Japan. Naha, the prefectural capital of Okinawa, is the only free-trade zone (FTZ) in Japan. Established by the Okinawa Development Special Measures Act in 1987 on a 23,691-sq-metre area near Naha Airport and Naha Port, the zone offers many incentives, including tax advantages, to Japanese and foreign companies that set up in the area. The Okinawa FTZ also has several industry-specific subdivisions, such as the Information and Communications Industry Promotion Zone and the Financial Business Promotion Zone. A 35% reduction on corporate income tax is available for a ten-year period. Other concessions— related to national taxes, regional taxes and import duties—are available. The Okinawa Development Finance Corp, which provides regional development financing, also offers long-term, low-interest loans to foreign companies moving into the free-trade zone. Export restrictions are normally non-existent, other than export declarations to customs authorities with procedures similar to import declarations. Articles prohibited for export under the Customs Law include narcotics and psychoactive drugs and stimulants; pornographic materials showing children; and goods that violate intellectual-property rights. As with imports, the Minister of Economy, Trade and Industry (METI) maintains special controls on selected items for economic and security reasons, such as those related to nuclear power, chemical and biological weapons, missiles and conventional weapons. And like imports, exports subject to special regulations must be cleared by relevant laws and by ministries with relevant jurisdiction. United Nations’ sanctions and other international export controls also provide the grounds for export restrictions. For example, Japan has banned all trade with North Korea since 2006, following the UN Security Council’s resolution

Free ports, zones

Export restrictions

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condemning North Korea’s weapons-of-mass-destruction programme. In an announcement made in April 2011, the METI extended the ban until April 13th 2012, saying imports from and exports to that country will have to be approved by the ministry. The Foreign Exchange and Foreign Trade Law of 1997 provides for cases where the METI may require exporters to obtain approval for the following purposes: maintaining national security, international peace and safety; maintaining the equilibrium of the international trade balance; and contributing to the sound development of foreign trade and the national economy. Hence, METI approval may be needed for transactions in certain industrial sectors and business with countries subject to economic sanctions. Military technology may be exported only to the United States. This exception let the two countries reach agreement in early 1995 on the exchange of dual-use technology. An amendment to the Foreign Exchange and Foreign Trade Law (enacted in April 2009 and in force from November 2009) increased the criminal penalties for exporting controlled items without a licence to a maximum prison term of ten years (up from five) and a fine of ¥10m (up from ¥2m). The amendment also introduced a legal framework, the Standards for Exporters, that requires exporters—including small and medium-sized enterprises—to maintain strict control of sensitive exports. The standards urge companies that have certain sensitive technologies (such as those with the technology to manufacture weapons of mass destruction) to establish an Internal Compliance Programme (ICP)—a set of internal rules to comply with export-control laws and regulations. One of the elements of the ICP is the appointment of a highranking executive officer as chief export-control officer who can make a final judgment and stop the export of the sensitive technology or product if there is any doubt or concern. The Customs Tariff Law, revised in March 2006, provides a legal basis for customs action against exports of goods infringing upon intellectual-property rights. The amendment, implemented on April 1st 2006, specifically defines exports of counterfeit goods as acts of trademark infringement and empowers Japan Customs to impound the goods in question. An area of co-operation between Japan and the US concerns exports from Japan under the so-called Container Security Initiative (CSI), promoted by the US as an anti-terrorism measure. The customs administrations of Japan and the US started a CSI programme in March 2003, under which US Customs officials are stationed in the port of Yokohama and Japanese customs officials are assigned to the port of Los Angeles/Long Beach to conduct pre- and postshipment screening and clearance operations. A CSI with Canada was implemented in January 2009. Export insurance and credit The Japanese government provides official insurance coverage for imports and intermediary trade with developing countries, as well as for exports. It also covers foreign direct investments undertaken by domestic companies. The Japanese government deregulated the market and started to issue licences to both private domestic and foreign insurers in 2005; until then, the Nippon

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Export and Investment Insurance (NEXI) had been the exclusive provider of foreign trade and investment insurance services in Japan. NEXI offers nine types of insurance: (1) export credit insurance covers losses incurred when Japanese companies are unable to export goods, or unable to collect receivables, because of (i) force majeure such as war, revolution, import restriction/prohibition, terrorism or natural disasters or (ii) bankruptcy of the business counterpart; (2) insurance for loans (buyer’s credit) available to Japanese commercial banks unable to receive repayment of loans from overseas importers; (3) export-credit insurance for small and medium-sized enterprises; (4) overseas untied loan insurance, covering losses by a Japanese company or commercial bank that provided a foreign government or a company with longterm business funds untied from exports to Japan; (5) overseas investment insurance covering losses by a Japanese company that has established a subsidiary or a joint venture in a foreign country; (6) export-bill insurance providing coverage for commercial banks against default on their export bills; (7) export-bond insurance covering losses by a Japanese commercial bank or other lender that issues letters of guarantee for a Japanese exporter; (8) prepayment import insurance, covering losses of a Japanese importer who had paid for goods in advance but could not receive the goods on due date; and (9) trade insurance from standing orders from a specific buyer. The last allows Japanese exporters to choose a regular customer and set a claims payment limit for insured events based on the estimated transaction value for the year with this particular buyer. This has the advantage of simplified application procedures where applicants do not have to apply for coverage for each export contract. A variation of the export-credit insurance is the intellectual-property licence insurance covering losses when Japanese companies are unable to collect a royalty for intellectual property because of force majeure or bankruptcy of the business counterpart abroad. Overseas investment insurance also may include losses by a Japanese company that has not set up a subsidiary in a foreign country but has incurred losses when an acquired real property, mining right or equipment brought from Japan became useless due to force majeure. In addition, this insurance covers losses incurred when a Japanese company cannot remit proceeds acquired through the sale of business property because of prohibitions of foreign-currency conversion or suspension of remittance. In April 2007 NEXI launched a new insurance product insuring resources and energy-development investments and loans against political and commercial risks, with an underwriting ceiling of ¥300bn. According to the most recently released figures, total underwriting volume by NEXI fell to ¥8.2trn in 2009/10 (April 1st–March 31st) from ¥9.7trn in the previous fiscal year. China accounted for 9.1% of the underwritten amount, followed by Panama (9.1%), the US (7.2%), South Korea (6.6%) and Indonesia (5.5%). Total claims paid by NEXI fell to ¥10.4bn in 2009/10 from ¥17.2bn in the previous fiscal year because of a substantial decrease in claims payments related to political events, according to NEXI. The decline also reflected the unusually high claims in 2008/09 that stemmed from a severe foreign-exchange

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crisis in Cuba at that time. Of the total claims for 2009/10, 91.9% consisted of export-credit insurance. Official export-credit programmes. The Japan Bank for International Cooperation (JBIC), part of the government-owned Japan Finance Corp, has provided official export credit since it assumed the functions of the old ExportImport Bank of Japan in 1999. The bank’s export-credit operations primarily support deals involving sales of plants and equipment to developing countries. Eligible transactions include exports of machinery and equipment and other capital goods, aircraft, ships and vehicles as well as parts and components; provision of technical services (including consulting, monitoring and supervision); and overseas construction projections. Buyer’s credit and bank-tobank loans are provided directly to foreign importers and foreign financial institutions for financing the import of Japanese goods and services. The JBIC also provides co-financing with other financial institutions. Export loans cover, in principle, 50–60% of the value of goods and services exported. Interest payments and repayment terms are determined in accordance with the Arrangements on Guidelines for Officially Supported Export Credits, which member nations of the OECD established. Loans are generally 3–5 years for exports and 3–10 years for imports and investments. They may have longer or shorter terms in special cases but rarely exceed 15 years. To obtain such a loan, an exporter must approach the JBIC through a commercial bank. Foreign companies are eligible for official export credit. Private export-financing techniques. Private export financing is sourced mainly via commercial banks, with rates generally 2–3 percentage points higher than those of the JBIC. Since commercial banks earn fees in addition to a certain percentage of each foreign-exchange transaction, they charge lower interest rates on loans for import or export financing than those for domestic purposes. The relationship between general trading companies (sogo shosha) and exporters is an important feature of the private export-financing environment in Japan. General trading companies, typically affiliated with a large industrial grouping (keiretsu), are integrated, comprehensive organisations with extensive financing capabilities. They often serve as intermediaries for small and medium-sized companies. Letters of credit are often issued in their name rather than in the name of smaller companies. With the trading company taking on the risk of the transaction, the foreign exporter is protected from the possible bankruptcy of the smaller company.

Intellectual property and e-commerce
IPR overview Any company with patents, trademarks or other intellectual property may enter into a licensing agreement with a Japanese company. The agreements are private, and the foreign company need not establish a presence in Japan. Licensing is most common in electronics, information technology, chemicals and pharmaceuticals. Japanese companies have started to place greater emphasis on not just acquiring and registering intellectual-property rights (IPRs)

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but also exploiting them, through licensing and collaboration agreements, and enforcing their rights. The government’s Intellectual Property Strategy Headquarters is responsible for formulating national IPR strategy. Its policy agenda includes the transfer of intellectual property from academic institutions to industry, the expansion of personal incentives for corporate employees involved in research and development, and tougher enforcement of IPR laws against infringement. Early efforts by the Intellectual Property Strategy Headquarters led to sweeping legislation in November 2002. The Basic Law on Intellectual Property broadened the definition of intellectual property to cover not only specific rights, such as patents and copyrights, but also business assets based on knowledge, including trade secrets. Under the law, intellectual property refers to inventions, devices, new varieties of plants, designs, works and other property produced by human creative activities; trademarks, trade names and other marks used to indicate goods or services in business activities; and trade secrets and other technical or business information useful for business activities. Despite the reforms, some Japanese entrepreneurs say the present system falls short of global standards. For example, unlike the United States, Japan does not allow patents for medical techniques like surgical procedures. According to the World Intellectual Property Organisation, Japan was the second-largest country of origin of patent applications under the Patent Cooperation Treaty in 2010, following the United States, and ahead of Germany, China and South Korea. Patents have had a narrow scope in Japan; this has encouraged many filings based on minor variations, a practice called cluster filing or patent flooding. Reflecting this traditional emphasis on quantity rather than quality, some 70% of all patents registered in Japan are believed never to have been used. One of the major strategic priorities of Japanese IPR policy has been increased practical access to registered patents. The Japan Patent Office provides free online patent information (at http://www.jpo.go.jp). Its Industrial Property Digital Library has online information on existing patents, utility models, designs and trademarks, and also on those undergoing official screening. Protection of intellectual property Patents, industrial designs and models, trademarks, trade secrets and copyrights are all legally recognised in Japan. Once secured, there is adequate enforcement of these property rights. International pressure for standardisation of intellectual-property laws and the self-interest of Japanese companies against piracy problems in other Asian countries are forcing the government and industries to improve protection of intellectual-property rights (IPR). Rights holders have been allowed to file ceaseand-desist orders against imports violating IPR laws since 2003, and Japan introduced clampdowns in 2007 on export of pirated goods violating IPR laws. A series of amendments to IPR laws has resulted in stiffer criminal penalties for infringement. The maximum penalties available for patent, design, trademark

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and trade-secret violations were doubled in January 2007 to ten years in prison and ¥10m in personal and ¥300m in corporate fines. The same increase in penalties took effect for copyright violations in July 2007. Negotiation and arbitration may be more successful than litigation in enforcing IPRs in Japan since Japanese courts are overburdened and trials can be quite complex. Court proceedings involving intellectual property usually take two years to conclude. There are no legal restrictions on access by foreign investors to Japanese lawyers, but some factors hinder foreign investors from getting proper legal advice on IPRs. These include strict limits on legal practice in Japan by foreign lawyers and by the few Japanese lawyers capable of handling international business transactions. Parties to an IPR dispute may turn to the Japan Intellectual Property Arbitration Centre, established in 1998 by the Japan Federation of Bar Associations and the Japan Patent Attorneys Association. The centre offers mediation services for speedier out-of-court settlements. Japan has taken measures to protect the IPR of Japanese companies overseas. For example, the Office of Intellectual Property Protection (OIPP) under the METI has an IPR Overseas Infringements Investigation Programme that allows Japanese companies or trade associations to request investigation of possible overseas violations. After the investigation, the government can initiate bilateral negotiations with the countries concerned and seek settlement under international agreements such as the World Trade Organisation disputesettlement procedures. According to the OIPP’s annual report, released in June 2011, the number of Japanese companies experiencing counterfeit damage overseas has been rising in recent years, most notably in China, South Korea and Taiwan. For example, 1,059 of the companies surveyed by the OIPP in fiscal year 2009/10 reported being hurt by counterfeit damage, up from 925 in the previous fiscal year. About 60% of these companies suffered damage on the Internet, such as the online sale of counterfeit goods and unauthorised use of trademarks. Patents in Japan are granted to the first person to file an application for a particular invention, rather than to the first person to invent it. The patent is valid for 20 years from the date an application is filed (a five-year renewable limit applies for pharmaceutical products and agricultural chemicals). Japan’s Patent Law of 1960 covers products or methods characterised by highly creative technological ideas; items characterised by a longer lifecycle than a new utility model; hardware and related computer programs; and plants, animals and micro-organisms. Legal proceedings for establishing patent infringements are complex and can be time-consuming. Under the present IPR system, the lead time between initial legal procedures and dispute settlement can take as long as two years—more than twice as long as in the United States. Court-awarded damages or out-ofcourt settlements are typically small compared with those in other developed countries. By the time rulings appear, patent and other IPR violators, notably importers of counterfeit products, have pocketed their profits and are forced to pay only nominal fines and compensation to plaintiffs. Moreover, high legal

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fees discourage small companies from pursuing legal compensation. According to government figures for 2010, the Courts of First Instance averaged 14.8 months to conclude IPR cases. Courts of Second Instance averaged eight months in 2010 to conclude IPR appeals. The Intellectual Property High Court, established in April 2005 at the Tokyo High Court under judicial-reform legislation passed in June 2004, has nationwide jurisdiction. It has 18 judges and both specialised investigators and outside experts advising the judges. The court handles disputes involving patents, utility models, integrated-circuit layouts and their use, trademarks, copyrights, publishing rights, neighbouring rights and related rights. The court may order the parties concerned not to divulge trade secrets in a pending case. Patent court proceedings may proceed in a closed session for better protection of trade secrets. The Intellectual Property High Court is efficient. It disposed of 101 appeal cases, and commenced proceedings on 104 appeal cases in 2010, according to its website. On average in 2010 it took the court 8.5 months to complete proceedings for each case, from commencement to disposition, compared with ten months in 2009. In addition, the High Court commenced proceedings on 413 suits in 2010 against decisions made by the Japan Patent Office; it disposed of 444 cases during the year. Although privately supplied alternative dispute resolution (ADR) services have existed in Japan for many years, Japan enacted a formal ADR law only in 2004. The Law on the Promotion of the Use of Out-of-Court Dispute Resolution Procedures, implemented in April 2007, promotes privately supplied ADR and provides for a certification system for law firms providing ADR services. There have been several amendments to Japan’s intellectual-property laws in recent years. The most significant revisions include the following: • As from January 1999, infringed parties can claim punitive damages regardless of the licence fee between the bona fide contractors. The maximum penalty for patent infringement was set at ¥150m. The 1999 amendments also expanded the Design Law of 1959 to cover system designs used for such items as kitchens and personal computers, and to eliminate a provision for mandatory registration for the design of component parts of an article. • As from January 2003, revisions to the Patent Law made it easier to claim indirect or contributory infringement. The amended law stipulates that indirect infringement occurs when the potential infringer produces, uses and/or sells an unpatented component indispensable for a patented invention with intent to cause infringement. • An amendment to the Patent Law in May 2003 made it easier to obtain international patents by allowing applicants to receive an automatic designation from all contracting states of the Patent Co-operation Treaty. • Another amendment to the Patent Law implemented on April 18th 2009 made further improvements, including an overhaul of the licence-registration process. The amendment makes it possible to register a “provisional nonexclusive licence” and a “provisional exclusive licence” before an invention is patented; and to register a group of non-exclusive licences granted from a

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comprehensive licence contract. Before this amendment, there was no way to register a licence before an invention was patented. If a licenser transferred an invention, as under a merger-and-acquisition deal, or went bankrupt before it was patented, a licensee had no means to assert the licence against anyone who later acquired the patent rights. Under the Patent Law, a patent licence can be registered with the JPO for protection when both the licenser and the licensee agree. Though the registry of licences is accessible by the public, the identity of the licensee, the scope of licensed patents and the scope of exploitation are kept confidential. For a nonexclusive licence, a registration is not a prerequisite for a licence contract to come into force. The legal effect of registering a non-exclusive licence is that once it has been registered, it will be effective against a third party later acquiring the patent right or a trustee in bankruptcy. However, the grant of an exclusive licence has no effect until it is registered; in other words, a registration is necessary for an exclusive licence to come into force. Transfers, modification or termination of an exclusive licence, or restrictions on disposal of an exclusive licence also have no effect unless such actions are registered. The JPO’s medium- to long-term goal to expedite patent examination calls for reducing the average patent-examination period to 11 months by 2013. The JPO has begun to recruit experts from the private sector, typically patent attorneys and persons from corporate intellectual-property departments, as examiners. One of the major issues involving industrial research and development in a corporate setting has been how to resolve conflicts of interests between employees and employers. In the past, when lifetime employment and other paternalistic features of corporate employment were strong, the inventions of employees were widely considered the property of the company. The Patent Law provides that employee-inventors have the right to receive “reasonable” compensation and that the sum of that remuneration must relate to the value the employer gains from such inventions. Utility models. The Utility Model Law allows registration of utility models, a minor form of patent with ten years of protection from the filing date. The law provides protection for items having a short lifecycle, characterised by potential for early implementation and embodying creative ideas relating to the shape of products, their structure and other technological aspects. Inventions subject to protection under the Utility Model Law are of the same nature as inventions protected under the Patent Law, but utility-model rights are granted more expeditiously. The requirements for patent applications generally apply to utility-model applications. Exercise of utility-model rights against infringement must be preceded by a warning supported by a technicalevaluation document prepared by an examiner at the JPO. The June 2004 amendment of the Patent Law in conjunction with a revision of the Utility Model Law introduced provisions making registered utility models convertible to patents. A utility-model registration can be converted to a patent application within three years of the filing date.

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Designs. Under Japan’s Design Law, protection is available for the shape, form and external appearance of an object. To be registrable, a design must be able to be recreated using an industrial (mechanical or manual) process and must be able to be mass produced. Examination criteria include novelty, ease of creation and uniqueness. If more than one application is filed for the registration of two identical or similar designs, the application filed first will be eligible for registration. If the same person files two identical or similar design applications within a certain period, one of which is deemed the original design and the other is deemed a related design, both designs will be eligible for registration under the relateddesign system. Protection of design rights begins once a design is registered. Unlike the trademark system, it is necessary to pay an annuity each year in order to maintain protection of designs. An amendment of the Design Law, implemented on April 1st 2007, extends the protection of designs from 15 years to 20 years. The amendment also expands the scope of designs eligible for protection to interface screens on display panels of electronic devices. Design rights generally lapse after 20 years; however, if the form of the registered object becomes famous, it is possible to receive continued protection under the Unfair Competition Prevention Law. Trademarks. The Trademark Law protects trademarks and service marks, which take the form of characters, figures or signs or any combination thereof, or any combination thereof with colours. The Unfair Competition Prevention Law of 1993, which the Ministry of Economy, Trade and Industry (METI) enforces, provides additional trademark protection (see discussion below). Trademarks must be registered in Japan to ensure enforcement. Often, an identical or similar trademark has already been registered or applied for before a foreign individual or company begins using it in Japan. Hence, a foreign entity intending to enter the Japanese market must first investigate the prior registration or application of the trademark. The first comprehensive revision of the Trademark Law in 40 years came into force on April 1st 1997. The updated law better accommodates problems peculiar to the Japanese trademark system and is more compatible with foreign laws. Amendments to the law include (1) simpler procedures for trademark registration and trademark renewal; (2) a multi-class application system, allowing several goods and/or services to be designated in one application; (3) introduction of a post-grant opposition system; (4) completion of a renewal after paying the renewal fee; (5) abolition of the mandatory public notice of transfers of trademark rights; (6) abolition of the associated trademark system, meaning that as long as they are registered by the same person, similar trademarks may be filed as “normal” trademarks; and (7) stiffer fines for violating the Trademark Law. Another amendment to the Trademark Law, enacted in June 2005 and implemented in April 2006, allows local associations to register trademarks of goods and services that are specific to their particular region/area, a change intended to protect and promote businesses in regional areas. The trademark

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must consist of the name of the region and a product name. It was not possible to register such marks under the old rules. The Industrial Property Digital Library at the JPO has databases of trademarks. Since March 2000, trademark holders have been entitled to compensation for damages for the period from application to registration of the trademark. The Unfair Competition Prevention Law makes protection available for new items for up to three years from the date they were first sold in Japan, even if no patent, utility-model right or design has been registered. Thus, if any other person copies a new product, protection is available under criminal or civil law. A revision of the Customs Tariff Law of 1954 under the jurisdiction of the Ministry of Finance, enacted in March and implemented on April 1st 2006, specifically defined exports of counterfeit goods as acts of trademark infringement and empowered Japan Customs to impound the affected goods. Trade secrets. The only trademark protection available in Japan prior to registration comes under the Unfair Competition Prevention Law. The law defines trade secrets as technical or business information useful in commercial activities, such as manufacturing or marketing methods, which is kept secret and not publicly known. The law covers various types of unfair competition such as unauthorised imitation of merchandise and false indications of origin of goods. It also protects trade secrets against unauthorised disclosure or misappropriation. A June 2005 amendment to the law, implemented in November 2005, substantially improved trade-secret protection by increasing penalties against trade-secret infringement across the board. The revised law made it easier to prosecute former employees and executives for using or disclosing the trade secrets of their former employers. The latest amendment of the law, enacted in April 2009 and implemented in April 2010, changes the purpose of a punishable violation of trade secrets from “unfair competition” to “acquisition of unfair profits” and “infliction of damage to the rightful owner”, in effect increasing the scope of enforcement to moresubtle forms of trade-secret infringement. The METI revised the “Trade Secret Management Guidelines” in April 2010 to help companies better manage confidential information. Copyrights. The Agency for Cultural Affairs oversees Japan’s copyright system under the Copyright Law. Japan is a member state of the two conventions for international protection of copyrights: the Bern Convention and the Universal Copyright Convention. The Copyright Law gives protection in Japan to any work first published in a member state of either convention. This law provides limitations on copyrights to permit fair exploitation of works, such as reproduction for personal use and for educational purposes. It recognises neighbouring rights. The Copyright Law was amended in 1991 to prohibit unauthorised duplication and distribution of foreign recordings produced after 1971. Another revision of the law in 1996 extended retroactive protection to copyrights for sound recordings for 50 years. A 2003 amendment extended the term of copyright protection for cinematographic works, animation and video games to 70 years, to bring the term of protection closer to international norms. A 2007

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amendment doubled maximum criminal penalties to ten years in prison and ¥10m in fines. The same amendment also expanded the scope of copyright infringement to the export of pirated materials or the possession of such materials for export purposes. An amendment of the Copyright Law enacted in June 2009 and in force from January 2010, makes it illegal for individuals to download from the Internet, for business and personal use, materials that have been uploaded without permission of the copyright holders. However, there are questions regarding enforcement, given that the law does not stipulate penalties for violation. Nevertheless, the Japan Association for Rights of Authors, Composers and Publishers and the Recording Industry Association of Japan have welcomed the amending law, saying it leaves the door open for civil suits claiming damages. The 2009 amendment also makes it legal for search engines to scan and index Internet contents.

Intellectual-property law
Conventions. Paris Convention for the Protection of Industrial Property (joined 1899); Bern Convention for the Protection of Literary and Artistic Works (joined 1899); Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods (joined 1953); Strasbourg Agreement Concerning the International Patent Classification (joined 1977); Convention for the Protection of Producers of Phonograms Against Unauthorised Duplication of Their Phonograms (joined 1978); Patent Co-operation Treaty (joined 1978); Budapest Treaty on the International Recognition of the Deposit of Micro-organisms for the Purposes of Patent Procedure (joined 1980); International Convention for the Protection of New Varieties of Plants (joined 1982); International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (joined 1989); Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks (joined 1990); Trademark Law Treaty (joined 1997); Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (joined 2000); WIPO Copyright Treaty (joined 2002); and WIPO Performances and Phonograms Treaty (joined 2002). Basic laws. Design Law, Patent Law, Trademark Law, Utility Model Law (all in effect since 1960); Copyright Law (1970, enforced in 1971).

Patents
Types and duration. Patents cover products or methods characterised by highly creative technological ideas; items characterised by a longer lifecycle than a new utility model; hardware and related computer programs; and plants, animals and micro-organisms. Duration is for 20 years from filing date of the patent application. Unpatentable. Patents may not be issued for therapeutic methods; products contrary to public health, order or morals; inventions with no industrial utility; and inventions lacking novelty. All areas of technology are patentable. Fees. Application, ¥15,000 (English-language application, ¥24,000); annual fees, ¥2,300 (plus ¥200 per claim) for the first to third year, rising to ¥61,600 (plus ¥4,800 per claim) for the last 15 years; and examination, ¥118,000 (plus ¥4,000 per claim). All patent fees are payable in cash or by patent-revenue stamps to the Japan Patent Office (JPO).

Industrial designs and models
Duration. Industrial designs are protected for 20 years from the date of registration. Utility models are protected for ten years from application date. Fees. For industrial designs: application, ¥16,000; demand for secrecy, ¥5,100; annual fees, ¥8,500 for the first three years (similar design ¥8,500), rising to ¥33,800 for years 16–20. All fees are payable in cash or by patent-revenue stamps. For models: application, ¥14,000; request for technical opinion on registrability, ¥42,000 (plus ¥1,000 per claim); annual fees, ¥2,100 for the first three years (plus ¥100 per claim), ¥6,100 for the next three years (plus ¥300 per claim) and ¥18,100 (plus ¥900 per claim) for each remaining year. All fees are payable in cash or by patent-revenue stamps.

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Trademarks
Types and duration. Trademark protection is granted to characters, figures or signs or any combination thereof, or any combination thereof with colours. Duration is for ten years, renewable for like periods. Legal effect. First applicant is entitled to registration and exclusive use, but a trademark may be registered without having been used. A trademark unused for more than three years may be cancelled. Service marks are registrable. Not registrable. Names and marks that might be confused with existing ones are not registrable. Fees. Application, ¥3,400 (plus ¥8,600 per classification); registration, ¥37,600; and renewal application, ¥48,500. All fees are payable in cash or by patent-revenue stamps.

Copyrights
Types and duration. Copyrights for literary works, musical works, artistic works, cinematographic works and computer programs are either transferable or non-transferable. Protection usually runs for 50 years after the death of the creator. Cinematographic works, as well as works authored by corporations, where the individual author or authors are unknown, are protected for 70 years following publication, or 70 years following creation if the work is not published. Works should be registered when transferred. So-called neighbouring rights are granted to those who communicate a work publicly for the same 50-year duration from the date of performance. Registrable. No formalities are required for legal protection, but the works must be original. Types of property eligible for protection include literature, music, drama, art, architecture, maps, films, pictures and computer programs, and secondary works like translations and edited works such as newspapers and databases. Applicable fees. Registration of the date of first publication, ¥3,000; registration of transfer of copyright and related rights, ¥18,000; registration of the establishment of publishing rights, ¥30,000. Legal effect. Unless there is evidence to the contrary, the respective registered dates are the dates of creation of the work, and its first publication. The registered person is presumed to be the author. Registering the transfer helps to oppose thirdparty claims, regarding both copyright and related rights.
Protection of intellectual property
(score; 5=high)
G7 (av) 5.0 4.0 3.0 2.0 1.0 0.0 Japan

2006

07

08

09

10

11

12

Source: Economist Intelligence Unit.

Registering property

The main features of Japan’s Patent Law are as follows: (1) public disclosure of the application 18 months after the filing or priority date (anyone may submit an opposition to a patent application within three months of the publication date); (2) substantial examination, made on request by the applicant or a third party within three years from the filing date, during which time the patent receives preliminary protection as long as the patent is granted (if no examination is requested in the three-year period, the application is voided); (3) an appeal before the Japan Patent Office (JPO), which may be requested within three months of denial of a registration; and (4) a trial for the invalidation of a patent that was granted unfairly or has become invalid.

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Patent applications go to the commissioner of the JPO in Tokyo. Applications should specify the title of the invention; investor’s and applicant’s full names, domiciles and nationalities; specifications in Japanese; and drawings and technical papers. The application may include several claims if closely related. The claim priority date is when the first application was filed in a Paris Convention country. Foreign applicants must appoint an agent domiciled in Japan to represent them. Applications may be in English if they are followed by a translation within two months. Various JPO requirements (like formats and filing methods) add to the time and cost of filing, making the advantage over normal filing in Japanese marginal at best. The April 2008 amendments to the Patent Law and the Trademark Law extended the appeal period to three months from 30 days, from April 2009, and instituted another round of fee cuts, beginning June 2008. The patent application fee, for one, was cut to ¥15,000 from ¥16,000. The JPO estimates that the cost of maintaining a patent right for ten years has dropped to ¥440,000 (from ¥490,000) as a result of the fee cuts. The examination fees were also cut, from August 1st 2011. For example, the fee for examining an ordinary patent application was reduced to ¥118,000 (plus ¥4,000 per claim) from ¥168,600 (plus ¥4,000 per claim). According to the METI, the latest round of fee cuts would reduce the examination request fee for patents with an average number of claims from about ¥200,000 to ¥150,000. The JPO extended the appeal period for international applicants, from July 1st 2009. When an international application is rejected within four months after the date of application for failure to comply with JPO requirements, an applicant may appeal within two months (previously one month) after the receipt of the rejection. Under the JPO’s paperless system, applications should be made whenever possible via online communication for patents, utility models, industrial designs and trademarks. The JPO is computerising patent procedures and databases to allow early publications. Patent-fee waivers are available to certain innovative small and medium-sized companies. The established search and commenting mechanism of the Patent Co-operation Treaty (PCT) applies in Japan. The JPO launched its Super Accelerated Examination (SAE) system in October 2008, in an effort to cut the examination backlog. The SAE system is designed to complete examination within 2–4 weeks, compared with the 2–3 months it takes to issue the first action. To be eligible for SAE, (1) the application must not be a national phase entry of a PCT application; (2) the application must be related to an invention either currently being practiced or planned to be practiced within two years from the date of filing a request; (3) a corresponding application has been filed with at least one non-Japanese foreign patent/intellectual property office; (4) all SAE procedures must be conducted through the JPO’s online filing system. In September 2009 the JPO expanded the SAE programme to international applications. The main contents of the expanded SAE system are as follows: (1) the application must be an associated application related to the implementation of an invention and related to foreign countries; (2) the waiting

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period of the preliminary examination is one month from the date of application for domestic applicants and two months from the date of application for international applicants; (3) an appeal must be lodged within 30 days (and within 60 days for a non-resident applicant) after the receipt of a rejection notice from the JPO. The Patent Prosecution Highway (PPH) system provides a simpler way of exploiting the JPO’s expedited procedures. The system allows patent applicants to file requests for an accelerated examination when their applications have been assumed as patentable by the office where the application was filed first. Full implementation of the PPH between the JPO and the US Patent and Trademark Office (USPTO) began in January 2008. Since then, the JPO has entered into separate PPH projects with the European Patent Office and also the patent offices of Austria, Canada, Denmark, Finland, Germany, Hungary, Mexico, Russia, Singapore, South Korea, Spain, Sweden and the UK. The JPO and the patent offices of seven countries (Austria, Canada, Finland, Russia, Spain, the UK and the US) expanded the PPH programme via a one-year pilot programme, PPH Mottainai, which started on July 15th 2011. Under PPH Mottainai (the Japanese term for “wasteful”), patent applicants may file requests for an accelerated examination when their applications have been assumed as patentable by one of the participating patent offices, regardless of the office in which the applications were first filed. The programme may be extended at the end of the pilot period in July 2012. In November 2009 the JPO launched a pilot programme for accelerated examination and trial of “green applications”—that is, patent applications for technologies designed to save energy and reduce emissions. These types of applications are now eligible for accelerated examinations, along with applications filed by small and medium-sized enterprises, individuals or universities; applications related to foreign applications; and those related to exploited inventions and the like. For the so-called green applications, prior-art reference must be disclosed and compared with the subject invention based on prior-art research. The peculiarities of the Japanese Design Law and the Japanese language make it especially important for design applicants not domiciled in Japan to cooperate closely with a local patent attorney who will handle the application. The first-to-file rule applies. Upon registration, the contents of the application are normally published in the official design gazette. At the time of filing, however, an applicant may request secrecy for up to three years. The Utility Model Law provides for the granting of ten years of protection for an idea almost immediately. Unlike patent applications, utility-model applications do not require requests for examination, since this takes place at the time of filing with no need for substantive examination. Trademark applications should include the applicant’s name (including the representative’s name for juridical persons), domicile, name of agent or attorney, and the description and class of goods or services on which the mark will appear. Registrations are accepted in the order received. As with patent

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applications, a resident agent (usually a lawyer or a patent agent) must handle the trademark application. Copyright registrations are generally via the Agency for Cultural Affairs.

Recent licensing agreements
Procognia, a biotechnology company based in Israel, announced in July 2011 that it had signed a licensing deal giving CTC Laboratory System (CTCLS), a Japanese company, a non-exclusive licence to sell, distribute and market GlycoScope, a technology it had developed designed specifically for pharmaceutical companies and research laboratories. GlycoScope is used to identify the glycosylation structure of glycoproteins, which are used in many drugs. This is an essential process for the successful functioning of the drugs in the human body. Procognia said CTCLS has ties with many bio-pharmaceutical companies in Japan and is thus in a strong position to introduce and promote the GlycoScope technology there. The exact amount of royalties was not disclosed, but Procognia said CTCLS will receive some percentage from the sales revenue. Boston Biomedical, a American pharmaceutical company, signed a licensing agreement giving Dainippon Sumitomo Pharma the option for exclusive rights to develop and commercialise BB1608, a compound that targets malignant cancer stem cells, it was reported in April 2011. Under the deal, Boston Biomedical received a US$15m upfront payment, and will obtain clinical trial support from the Japanese company. Upon successful clinical development of BB1608 and if Dainippon exercises the option provided for in the agreement, Boston Biomedical could receive a total maximum of about US$100m in royalties and milestone payments, according to news reports. Optimer Pharmaceuticals, based in the US, announced in February 2011 that it had signed a licensing deal for Fidaxomicin, its experimental antibiotic, with the European unit of Astellas Pharma, a Japanese drugmaker. The deal gives Astellas the rights to develop and sell the drug in Europe and parts of the Middle East and Africa. Optimer received an upfront payment of US$68m and is eligible to receive additional cash payments of up to US$156m upon the achievement of regulatory and commercial milestones, according to news agency Reuters. Should the drug be approved, Optimer would receive tiered double-digit royalty payments on net sales of Fidaxomicin, which is being developed as a treatment for Clostridium difficile infection, a serious illness caused by infection of the colon’s lining. Astellas will assume all future costs associated with the development, manufacture and commercialisation of Fidaxomicin in Europe, parts of the Middle East and Africa, as well as the costs of filing for European approval of the drug, according to Reuters. O Neill (Luxembourg), a manufacturer of wetsuits, sports clothing and accessories, has given Itochu the rights to manage its brands in Japan under a master licensing agreement signed by the two companies, it was reported in September 2010. Itochu, which brought leading US brands such as Converse, Airwalk and Keds to Japan, has also signed a sub-licensing deal with Nikki, another Japanese company, allowing the latter to manufacture and distribute O Neill’s products in Japan. The value of the licensing and sub-licensing agreements were not disclosed.

Negotiating a licence

Small companies unfamiliar with licence transfers and similar operations require extensive guidance in Japan, and even some larger companies may be unaware of the finer points of these transactions. Nevertheless, the foreign party is discouraged from bringing a lawyer to the early stages of negotiations, since doing so might alienate the Japanese company. To reassure themselves of their own interpretations, Japanese companies may ask their lawyers to draft a non-binding memorandum based on their understanding of on-going talks. There are a number of drawbacks to licensing intellectual property in Japan. Agreements often prove to be short-lived since the Japanese licensee improves upon the licensed products or technology, and then exports the improved version back to the originating country—thereby becoming a competitor of the licenser. Moreover, both parties often overlook the indirect costs of managing and policing agreements. Licensees often under-report sales and under-remit royalty payments. The wisdom of licensing frequently depends on the status of

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a company’s patents in Japan, together with the degree to which it must disclose trade secrets to its licensee. Joint-venture partnerships involving technology transfer or licensing agreements with a Japanese partner have the same pitfalls as a straight licence: the value of a joint-venture arrangement may diminish as the Japanese partner improves upon or becomes less dependent on the technological innovations. Disclosure fees are common and provisions for minimum royalties are often included in licensing arrangements. There is an increasing number of free licences offered by licensers on a pro-bono basis; many are part of cross-licensing deals. If a licenser is starting from scratch, it can best identify potential local partners and gather other relevant information (like terms of similar agreements) through the Japan External Trade Organisation. Other sources of information can be an industry association such as the Electronic Industry Association of Japan or a large local law firm or accountancy. Foreign companies find it extremely difficult to patent pharmaceutical products and introduce them into Japan’s distribution system. Because of the close relationships among manufacturers, wholesalers, hospitals and physicians, most foreign companies must license their technology to established Japanese healthcare companies. Administrative restrictions Under the Foreign Exchange and Foreign Trade Law of 1997, foreign companies that want to manufacture in Japan must notify the Ministry of Finance within 15 days of the execution of the licensing agreement with an independent Japanese company, its own wholly owned subsidiary or a joint venture. They must also notify the Japan Fair Trade Commission if the licence agreement is exclusive; if it extends beyond one year; and if the licensee is a competitor with a 10% or greater market share and/or is ranked third or higher in the respective Japanese industry and/or the contract provides for setting prices in Japan for such goods or services. These notifications are followed by official reviews, the results of which are normally issued within 60 days. If the authorities believe that a proposed agreement either threatens national security or disrupts pertinent domestic industries, they may recommend revision or cancellation. Although recommended contract changes may be negotiable, ultimate recommendations not accepted by the affected parties may be imposed by ministerial order. An amendment of the Anti-monopoly Law, implemented in January 2000, makes it possible for anyone to demand the invalidation of a licensing agreement on the grounds of unfair practices and to seek compensation for damage caused by the invalid licensing agreement. The Japan Fair Trade Commission has separate Guidelines on Standardisation and Patent Pool Arrangements, issued in 2005. The guidelines stipulate that a patent holder is violating the Anti-monopoly Law of 1947 if it refuses to grant a licence on a patented technology it promotes as an industry standard. The guidelines also object to the practice of preventing patent-pool participants to grant a licence to third parties.

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Forms of e-commerce

Japan discovered the Internet’s potential as an e-commerce platform relatively late. Since Japanese companies had been burdened with surplus workers and unsold inventories, they tended to cling to their complicated distribution systems and trading practices—which, until recently, gave Japan its unique middleman economy. The Internet has forced companies to restructure to lower transaction costs, cut the number of workers and streamline communications. The upside potential is large, with huge savings expected in the cost of doing business. In the fashion typical of Japanese conglomerates, or zaibatsu, once major manufacturers with established trading practices and brand names take the plunge into e-commerce, their entire supply chains quickly follow. Consumer-electronics gadgets have largely driven the Japanese version of the information-technology revolution. Among these, mobile phones have emerged as the most hotly contested platform of cutting-edge e-commerce technology. Mobile-phone network operators are adding new handset features to retain customers amid toughening competition. For example, they are incorporating electronic cash and credit features so that subscribers can pay for goods via their mobile-phone bills. E-commerce based on personal computers is gaining ground as a result of the nationwide deployment of broadband technology. Japanese broadband services are highly competitive by world standards: they are fast and inexpensive. Indeed, international surveys indicate monthly broadband access fees in Japan are the lowest among major countries. Online shopping has begun to catch on among Japanese consumers, and popular Internet portals are leading the trend. Yahoo! Japan, a subsidiary of the US Internet portal, which operates the country’s biggest general-information website, is rapidly building muscle in its online-shopping arm. It successfully beat off competition from eBay (US) to build one of the country’s most popular online-auction sites, Yahoo! Auctions. Rakuten, a leading local online-shopping mall, is another major player in the field, with more than 20,000 merchants and 25m registered products on its main site. Online banking and investment is also an important facet of e-commerce in Japan. Japan Net Bank, Sony Bank, eBank and Seven Bank, all Japanese banks, are the main Internet-only banks. Seven Bank has the largest network of automated teller machines (ATMs) in the country because of its connection with the ubiquitous 7-Eleven convenience shops (licensees of the US chain) that are found across Japan. Internet-only brokerage firms specialising in equity and currency trading have become very popular with retail investors over the past five years. The leading online brokerage firm is the local SBI Securities. It gained its market position by offering low commissions and an option to trade via mobile phones.

Growth of e-commerce

According to an e-commerce survey released in June 2011 by the Ministry of Economy, Trade and Industry, business-to-business (B2B) e-commerce in Japan was worth ¥169trn in 2010, up from ¥131trn in 2009. The consumer survey, conducted from October 2010 to February 2011, also estimated business-toconsumer (B2C) e-commerce at ¥7.8trn in 2010, up from ¥6.7trn in 2009.

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Japan has very sophisticated infrastructure for e-commerce. According to the Ministry of Internal Affairs and Communications (MIC), the mobile-phone subscriber base reached 120.7m at end-2010, with the penetration rate reaching 95% of the total population. According to the Economist Intelligence Unit, the number of mobile subscriptions is set to increase to 136m by 2014, thus reaching a penetration rate of more than 100%. (The population was estimated at 127.37m at end-2010.) The penetration rate of personal computers is also very high, with an estimated 102.9 PCs per 100 people in 2010. The MIC reported 34.59m Internet service contracts at end-2010, including 8.59m digital subscriber line (DSL) contracts, 19.77m fibre to the home (FTTH) lines and 6.23m cable-television lines. It estimated that there were 94.62m Internet users in Japan at the end of 2010, up by 540,000 from a year earlier. In addition, 77.9% of households had a broadband connection at the end of 2010, and of these, 52.2% use the FTTH. The Economist Intelligence Unit reports that Japan is the second-largest information technology (IT) spender in the world, after the United States. Total IT spending in Japan was an estimated US$142.8bn in 2010, which includes expenditure on hardware, services and packaged software. This represented an estimated 2.4% of Japanese GDP in that year, compared with spending of around 2% of GDP in China and South Korea.
E-business readiness
(score; 10=high)
G7 (av) 10.0 8.0 6.0 4.0 2.0 0.0 Japan

2005

06

07

08

09

10

Source: Economist Intelligence Unit.

E-government trends

In May 2010 the Japanese government released a “New Strategy in Information and Communications Technology”, with the main goal of “developing a citizenoriented electronic administration”. Under this strategy, by 2020 citizens and corporate users will be able to file applications and obtain certificates “closely related to their (citizens) daily lives” (such as Certificates of Residence and Certificates of Registered Seal) from the government electronically 24 hours a day, without having to visit government offices. The government also aims, possibly as early as 2013, to install terminal booths in convenience stores to provide access to these administrative services. A citizen identification system looks to be operational by 2013, allowing individuals to monitor the use of their personal data by the national government (and by more than 50% of local governments by 2020).

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Under the strategy, Japan targets that, by 2013, administrative information will be disclosed over the Internet as a rule and in formats that will allow secondary use. In addition, by 2015, a fibre-optic highway is to be completed, giving every household broadband service. In the United Nation’s bi-annual e-government survey for 2010, Japan ranked 17th out of 184 countries assessed in October–December 2009. Its latest ranking was a drop from 11th place in the previous survey, released in 2008. The survey ranked countries according to an assessment of the state’s online presence, the country’s infrastructure capacity and a composite of the adult literacy rate and the enrolment rate. In the UN’s e-participation index, Japan ranked higher, at sixth place among 184 countries, than its overall position. Japan ranked 11th in this category in 2008. This index evaluates how governments are including citizens in their decisionmaking process, how governments are providing information and knowledge, and how they are consulting with citizens to obtain feedback and opinions. The UN report cited a Japanese portal for providing access to statistical data (http://www.e-stat.go.jp/SG1/estat/eStatTopPortalE.do) that has a user-friendly interface and allows for straightforward searches to access government data from various ministries and agencies. Users can securely register to receive email updates on statistics and may subscribe to RSS feeds. A mobile version of the portal is also available. The UN report also cited Japan’s national portal of (http://www.e-gov.go.jp/) for being “rich in e-information and content” and for providing extensive links to ministries and key government resources. Consumer protection The Ministry of Economy, Trade and Industry (METI) issued the Guidelines on Electronic Commerce in 2002 to provide its interpretations of various legal implications concerning e-commerce, including consumer protection. The guidelines were renamed Guidelines on Electronic Commerce and Information Transactions in March 2007 to cover new areas of e-commerce such as onlineauction sites. The expanded guidelines set real-world principles based on various e-commerce laws; they cover personal information, web advertisements, licensing contract terms and intellectual-property rights, and even the responsibilities of peer-to-peer (P2P) file-sharing-site operators. The METI established the Next Generation Electronic Commerce Promotion Council of Japan (Ecom) in January 1996 to oversee business-to-business (B2B) and business-to-consumer (B2C) e-commerce. The Ecom issued the Guidelines Concerning the Protection of Personal Data in Electronic Commerce in the Private Sector in March 1998. The guidelines contain the following provisions, but there are no specific penalties for violations: • Individuals using personal data in e-commerce should clearly specify, within the bounds of legitimate business, the purpose of collecting such data and the boundaries of necessary information for that purpose; • The use and disclosure of personal data collected legally should be limited to the stated purpose of collecting such data;

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• Reasonable security measures should be taken, both technically and organisationally, against such risks as unauthorised access to personal data or the loss, destruction, alteration and leakage of personal data; • Individuals engaged in collecting, using and disclosing personal data have the obligation to take sufficient care to maintain the confidentiality of personal data under the provisions of laws and regulations; and • Refusals by the subject of the personal data to the use or disclosure to third parties of previously collected personal data should be honoured with full faith. Another relevant set of guidelines sets out the basic principles of privacy protection and obligations on the part of telecom-service providers. These Guidelines Concerning the Protection of Personal Data with Regard to the Telecommunications Business, issued in December 1998, are under the jurisdiction of the Ministry of Internal Affairs and Communications. A 2005 amendment to the law allows telecom-service providers to exchange information about spammers. Japan implemented anti-spam legislation in July 2002. The Law on the Regulation of Specific Electronic Mail Transmission established “opt-out” as the default model for e-mail marketing by requiring marketers to facilitate and honour recipients’ unsubscribe requests from any future mailings. E-mail marketers also have to specify in each piece of e-mail both that it is an advertisement and that it has been sent without permission. In addition, mailers must offer a valid return address, telephone number and subject line in each piece of mail. In November 2005 the government expanded the definition of spam to include unsolicited e-mail ads and promotional materials sent to email addresses of business enterprises and other organisations. In addition, it outlawed the transmission of spam with fake sender e-mail addresses and other false sender information; allowed Internet service providers and other telecoms carriers to deny access when large volumes of the same or similar emails are sent by particular users; doubled the maximum penalty for violations of anti-spam law to ¥1m and introduced prison terms of up to one year. The Personal Data Protection Law, implemented on May 30th 2003, requires businesses and organisations handling a large volume of personal data to do the following: specify the purpose for using personal data; use personal data only for the stated purposes; follow appropriate procedures for collecting personal data; safeguard personal data against loss, system failure and leakage; and comply with rightful requests for correction or deletion of personal data. They must not provide personal data to third parties without consent. The law allows relevant ministries to request reports from, or issue recommendations or orders to, the processors concerning their handling of personal data. In view of upholding freedom of speech, personal data obtained for journalistic, literary, academic, religious or political purposes may be exempt from the law. Moreover, individuals who believe their personal information has been misused may file complaints with the government. In March 2007 the government clarified the emergency circumstances in which addresses and other information can be released to third parties. Permissible exceptions may be made for recalls of dangerous products, student information

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in the wake of disasters and accidents, details on the conditions of unconscious hospital patients and so on. In May 2011 the METI invoked the Personal Data Protection Law to hold Sony Computer Entertainment accountable for the hacking of the company’s networks, which resulted in the theft of personal data of more than 100m Sony customers. Although the METI did not take punitive measures, it ordered Sony to implement measures to prevent a repetition of the security breach. Also in May 2011 the ministry released guidelines, called Strict Implementation of Security Measures, to help companies combat cyber-attacks aimed at stealing confidential information. The Cabinet adopted basic guidelines in April 2004 for the protection of personal data in the public and private sectors. The Ministry of Economy, Trade and Industry (METI) issued its own privacy guidelines in June 2004, covering economic and industrial areas. The Ministry of Health, Labour and Welfare published guidelines in June 2004 specifically applying to employers about employees’ personal data. A new government agency, the Consumer Affairs Agency (CAA), was established in September 2009 to oversee the entire range of consumeradvocacy programmes under some 30 different laws, such as the Food Safety Basic Law of 2003. According to the METI, the CAA-backed National Consumer Affairs Centre (NCAC) of Japan (http://www.kokusen.go.jp/ncac_index_e.html) has made it easier for consumers to report Internet sites that sell counterfeit goods. NCAC, founded in 1970, collects consumer-related information from local consumer centres throughout Japan and responds to enquiries and complaints from consumers. Japan’s parliament in June 2011 enacted legislation criminalising the creation or distribution of computer viruses. The legislation, which amends the Penal Code, makes the creation or distribution of computer viruses without reasonable cause punishable by up to three years in prison or ¥500,000 in fines. The acquisition or storage of viruses is punishable by up to two years in prison or a fine of ¥300,000. The new law also makes it a crime to send e-mail messages containing pornographic images to a random number of people. The law allows authorities to seize or copy data from computer servers for investigation purposes and to ask Internet service providers to retain communications logs, such as the names of e-mail senders and recipients, for up to 60 days. Because of concerns that keeping such communications logs could violate the privacy of communications guaranteed by the constitution, the judicial affairs committee of the upper house attached a resolution to the legislation calling on authorities to apply the law prudently. The new law, implemented in July 2011, will allow Japan to join the Convention on Cybercrime, an international treaty signed by 31 countries. Contract law and dispute resolution The Consumer Contract Act, in force since April 2001, provides the legal framework for consumer protection in Japan. The law established specific rules and regulations applicable to contracts concluded between consumers and businesses. Prior to the law, consumer protection had been under a variety of general laws such as the Civil Code.

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The latest realignment of the Japanese legal system with the rise of e-commerce involved an amendment to the 1898 Law Concerning the Application of Laws in General, or Horei, in June 2006. Horei sets rules on conflict of international laws along the line of Japan’s civil-law traditions. Its basic principles uphold citizens’ choice of law by requiring that transactions should be governed under the laws of the country where the transaction occurs. The amendment extends the same right to crossborder e-commerce by applying Japanese consumer protection even where a contract provides otherwise, thereby protecting Japanese consumers who might have entered into transactions with overseas businesses without properly understanding international legal implications. For example, Japanese consumers buying goods online from a US company still have the right to invoke the Consumer Contract Act even if they agreed to the terms of the contract citing a US state law. If a Japanese consumer files a lawsuit in a Japanese court for repayment from a US vendor, and if the court upholds the consumer’s claim, the consumer can take the case to a US court that has jurisdiction over the seller and seek the fulfilment of the Japanese court ruling. The Law Concerning Electronic Signatures and Certification Services took effect on April 1st 2001. Under it, government approval is required for certification agencies that confirm the validity of digital signatures. Foreign certificationservice providers can receive accreditation under this law. An attempt to establish untruthful identity through an authorised agency could be punishable by up to three years in prison or ¥2m in fines. The Japan Quality Assurance Organisation and the Electronic Signature and Authentication Promotion Centre are authorised to certify digital signatures. Their services are legally binding. As an alternative to the slow and costly court system, parties to an e-commerce dispute involving intellectual-property rights may turn to the Japan Intellectual Property Arbitration Centre, established in 1998 by the Japan Federation of Bar Associations and the Japan Patent Attorneys Association. The centre offers mediation services for speedier out-of-court settlements. Basis of taxation Japan is still formulating its response to e-commerce taxation issues. Japanese tax authorities will fall into step with international guidelines taking shape in the Organisation for Economic Co-operation and Development (OECD). Consumption tax, which applies to domestically sold products and services, is a particularly tricky issue. OECD countries agreed in 2001 that consumption taxes for purchases made online should be paid in the customer’s country of residence, no matter where the retailer is based. Crossborder sales of electronically downloaded digital products or provision of services are generally considered to be made in the geographical location where the offices of vendors are located (that is, in foreign countries). For example, if a provider of online content based in the US sells to a customer in Japan, the consumption tax would probably not apply. But if a company based in Japan provides the same products and services, its fees would be subject to tax.

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Key contacts
• • Bank of Japan (BoJ), 2-1-1 Nihonbashi-Hongokucho, Chuo-ku, Tokyo; Tel: (81.3) 3279–1111; Internet: http:// www.boj.or.jp/en. Cabinet Office (CAO), 1-6-1 Nagata-cho, Chiyoda-ku, Tokyo; Tel: (81.3) 5253–2111; Internet: http:// www.cao.go.jp/indexe.html. CAO’s Invest Japan office is at 3-1-1 Kasumigaseki, Chiyoda-ku, Tokyo; Tel: (81.3) 3581–8950; Fax: (81.3) 3581–4772; Internet: http://www.invest-japan.go.jp/en_index.html Development Bank of Japan 1-9-1 Otemachi, Chiyoda-ku, Tokyo; Tel: (81.3) 3270–3211; Internet: http:// www.dbj.jp/en/ Financial Services Agency (FSA), 3-2-1 Kasumigaseki, Chiyoda-ku, Tokyo; Tel: (81.3) 3506–6000; Internet: http://www.fsa.go.jp/en/index.html. Japan Association of Corporate Executives (JACE), 1-4-6 Marunouchi, Chiyoda-ku, Tokyo; Tel: (81.3) 3211–1271; Fax: (81.3) 3213–2946; Internet: http://www.doyukai.or.jp/en. Japan Business Federation (JBF; also known as Keidanren), 1-3-2 Otemachi, Chiyoda-ku, Tokyo; Tel: (81.3) 6741-0222; Fax: (81.3) 6741-0233; Internet: http://www.keidanren.or.jp. Japan Chamber of Commerce and Industry (JCCI), 3-2-2 Marunouchi, Chiyoda-ku, Tokyo; Tel: (81.3) 3283–7823; Internet: http://www.jcci.or.jp/home-e.files/jcci.htm. Japan External Trade Organisation (JETRO), 6/F Ark Mori Bldg, 1-12-32 Akasaka, Minato-ku, Tokyo; Tel: (81.3) 3582–5511; Internet: http://www.jetro.go.jp. Japan Fair Trade Commission (JFTC), 1-1-1 Kasumigaseki, Chiyoda-ku, Tokyo; Tel: (81.3) 3581–1998; Internet: http:// www.jftc.go.jp/en/. Japan Finance Corporation (JFC), 1-9-3 Otemachi, Chiyoda-ku, Tokyo; Tel: (81.3) 5218-3100; Fax: (81.3) 5218-3955; Internet: http://www.jfc.go.jp/english/index.html. Japan Patent Office (JPO), 3-4-3 Kasumigaseki, Chiyoda-ku, Tokyo; Tel: (81.3) 3581–1101; Fax: (81.3) 3581-0762; Internet: http://www.jpo.go.jp. Japan Tariff Association (JTA), 3-11-11 Nihonbashi-Honcho, Chuo-ku, Tokyo; Tel: (81.3) 5614–8871; Fax: (81.3) 5614–8873; Internet: http://www.kanzei.or.jp/english/ Japanese Society for Rights of Authors, Composers and Publishers (JASRAC), 3-6-12 Uehara, Shibuya-ku, Tokyo; Tel: (81.3) 3481–2121; Internet: http://www.jasrac.or.jp/ejhp/index.htm. Ministry of Economy, Trade and Industry (METI), 1-3-1 Kasumigaseki, Chiyoda-ku, Tokyo; Tel: (81.3) 3501–1511; Internet: http://www.meti.go.jp/english/index.html. Ministry of the Environment (MOE), 1-2-2 Kasumigaseki, Chiyoda-ku, Tokyo; Tel: (81.3) 3581–3351; Internet: http:// www.env.go.jp/en. Ministry of Finance (MOF), 3-1-1 Kasumigaseki, Chiyoda-ku, Tokyo; Tel: (81.3) 3581–4111; Internet: http:// www.mof.go.jp/english/index.htm. Ministry of Justice (MOJ), 1-1-1, Kasumigaseki, Chiyoda-ku, Tokyo; Tel: (81.3) 3580–4111; Internet: http://www. moj.go.jp/ENGLISH/index.html. The MOJ issues work visas for foreigners who are seeking employment in Japan. Its Immigration Information Centre, at the Tokyo Regional Immigration Bureau Office (5-5-30 Konan, Minato-ku, Tokyo; Tel: (81.3) 5796–7111; Internet: http://www.immi-moj.go.jp/english/index.html) provides guidance on obtaining visas, establishing or changing status of residence, and other immigration matters. Ministry of Health, Labour and Welfare (MHLW), 1-2-2 Kasumigaseki, Chiyoda-ku, Tokyo; Tel: (81.3) 5253–1111; Internet: http://www.mhlw.go.jp/english/index.html. Ministry of Land, Infrastructure, Transport and Tourism, 2-1-3 Kasumigaseki, Chiyoda-ku, Tokyo; Tel: (81.3) 3253–8111; Internet: http://www.mlit.go.jp/en/index.html. Ministry of Internal Affairs and Communications (MIC), 2-1-2 Kasumigaseki, Chiyoda-ku, Tokyo: Tel: (81.3) 5253–5111; Internet: http://www.soumu.go.jp/english/index.html. National Tax Agency (NTA), 3-1-1 Kasumigaseki, Chiyoda-ku, Tokyo; Tel: (81.3) 3581–4161; Internet: http://www. nta.go.jp/foreign_language/index.htm. Nippon Export and Investment Insurance (NEXI), 3-8-1 Nishikanda, Chiyoda-ku, Tokyo: Tel: (81.3) 3512–7650; Fax: (81.3) 3512–7660; Internet: http://nexi.go.jp/en/

• • • • • • • • • • • • • • •

• • • • •

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• • • •



Organisation for Small and Medium Enterprises and Regional Innovation, Japan (SMRJ), 3-5-1 Toranomon, Minato-ku, Tokyo; Tel: (81.3) 3433–8811; Fax: (81.3) 5470-2376; Internet: http://www.smrj.go.jp/english/index.html. Osaka Business and Investment Centre, 2-8 Honmachi-bashi, Chuo-ku, Osaka; Tel: (81.6) 6944-6298; Fax: (81.6) 69446293; Internet: http://o-bic.net. Statistics Bureau, Ministry of Internal Affairs and Communications, 19-1, Wakamatsu-cho, Shinjuku-ku, Tokyo; Tel: (81.3) 5273-2020; Internet: http://www.stat.go.jp/english/info/sitemap.htm. Tokyo Business Entry Point, 30th floor, Tokyo Metropolitan Government Main Building No. 1, 8–1 Nishi-Shinjuku, Shinjuku, Tokyo; Tel: (81.3) 5320-4889; Fax: (81.3) 5388-1465; Internet: http://www.tokyo-business.jp/eng/entrypoint /index.html. Tokyo Stock Exchange (TSE), 2-1 Nihonbashi-Kabutocho, Chuo-ku, Tokyo; Tel: (81.3) 3665–1881; Fax: (81.3) 3662–0547; Internet: http://www.tse.or.jp/english/index.html.

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