In response to the question on stare decisis

Unlike US courts, Japanese courts almost never cite, describe, distinguish, etc. other cases.

In the US you expect a court facing a case where the precedents don’t give a clear answer to go through the precedents, describe what was at stake, summarize the reasons the earlier courts gave, etc. This is the methodology of the common law.Japanese courts do consult precedents but they don’t tell the reader which ones they consulted, what the cases said or how the cases logically or otherwise affected the reasoning and outcome of the case at hand.

The fact that Japanese courts don’t have to put their cards on the table by citing specific precedent means that in practice they are free to ignore precedent and frequently do. The line of cases on the so-called “Japanese poison pill” culminating in the Bulldog Sauce case are illustrative. Prior to 2005 Japanese case law held consistently that a company could not issue stock or stock rights if the “primary purpose” was to thwart a takeover. This case law stood in the way of the poison pill. In 2005 Livedoor made a hostile bid for Nippon Broadcasting Service (NBS). To block the bid, NBS issued a slug of warrants to its affiliate, Fuji Television. The Tokyo High Court ruled that the issuance of warrants was invalid because its “primary purpose” was to block a hostile bid, but then went on to add detailed (and gratuitous) dicta that established four new detailed categories of “abusive acquirers” which it would be OK to try to block using warrants. Where these four new categories came from, or what they had to do with the disposition of the case, were never explained. Then, in 2007, Bulldog Sauce shareholders voted to cause the company to issue warrants, the effect of which was coercively to cash out Steel partners as a shareholder. The Tokyo District Court, ignoring both the old “primary purpose” cases as well as the Livedoor-NBS “abusive acquirer” categories, created yet another rule, to the effect that if a large number of shareholders approve an issuance of warrants against a specific bidder, the approval is presumptive evidence that the bidder was somehow “abusive” and deserved to have his bid blocked. The Tokyo High Court, on appeal, then went in a completely different direction and redefined “abusive acquirer” to mean any profit-motivated financial investor that was not in the same business as the target company. The Supreme Court ended up with a position that was similar to, but again somewhat distinct from, the District Court. In none of the cases is there a specific discussion of what the relevant precedents or lower courts actually say. The whole process is a kind of legal shadow boxing that leads to results that are pulled out of a black box.

Comment by Stephen Givens

The Board Director Training Institute (BDTI) is a "public interest" nonprofit in Japan dedicated to training about directorship, corporate governance, and related management techniques. It is certified by the Japanese government to conduct these activities as a regulated nonprofit. Read a summary about BDTI here, and see a menu of its services for both corporations and investors here.

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