Category: Law

2013 marked another year of vigorous international anti-corruption enforcement.

http://bit.ly/1dul0CF

Now that Japan has accepted the comply-or-explain principle, the fact that the EU also adopted that principle in 2006, and the manner in which it was done, is quite relevant:

http://bdti.mastertree.jp/f/jo9kqg7u

Based on the results of the inspection of Mizuho Bank Co., Ltd and Mizuho Financial Group, Inc. conducted by the Financial Services Agency (hereinafter referred to as the “FSA”) and the reports submitted by Bank, the FSA today took the following administrative actions against Mizuho Bank Co., Ltd and Mizuho Financial Group, Inc. in order to ensure sound and appropriate business operations.

[ Available at: http://www.fsa.go.jp/en/news/2013/20131226-1.html ]

Excerpt: On January 29, 2014, the Brazilian Clean Companies Act (CCA) will enter into force. The CCA is an aggressive and broadly drafted piece of legislation which represents a firm statement of intent from the Brazilian government to align itself with global trends and tackle corruption head on. Brazil is an important trading partner for many UK companies and the reverse is also true.1 Companies doing business in Brazil should take note of the CCA and ensure that their existing compliance controls and procedures respond appropriately to its particular features.

Excerpt from introduction: Unfortunately, little data is consistently available on the pace of, and trends in, international anti-bribery enforcement, although such information is essential to understanding the extent to which countries are enforcing their anti-bribery statutes and encouraging greater transparency in global business. TRACE publishes the Global Enforcement Report (GER) annually to meet this need.

This could go bump in the dark. The WSJ: The arrests on bribery charges of two Japanese businessmen Thursday — an official running a pension fund affiliated with a blue-chip company, and a Deutsche Bank AG employee seeking his business — were rooted in the quirks of Japanese law, and its pension industry.

Nisshimura & Asahi have created this useful presentation on Lessons Learned from Recent JapaneseM&A Contract Interpretation Cases, which covers recent legal history in this area and the following topics:

Emancipation of Japanese M&A Contract Drafting
Buyer’s Knowledge
Liquidated Damages
Entire Agreement Clause
Indemnification Claims

http://bdti.mastertree.jp/f/4drb1qmt

Marubeni and other Japanese companies are included in lists like this of the largest settlements, or the largest investigations underway:

https://twitter.com/tom_mcleod/status/387348013544251392/photo/1

We were studing the above topics recently and came across these helpful memos:

Lazarus – Independence Under Delaware Law
http://bdti.mastertree.jp/f/h4em9f7p

Dunn – Good Faith in Delaware
http://bdti.mastertree.jp/f/l3cufnqp

Siegel – Illusion of Enhanced Review – 2013
http://bdti.mastertree.jp/f/x0j7hc5w

Willkie Farr – Entire-Fairness-As-A-Limit-On-Control
http://bdti.mastertree.jp/f/ir40tsel

Detailed Harvard Law Blog entry below, analysis byDavis Polk here. You have to admirethe direct language in this ruling: [I]f you’re going to have a company domiciled for purposes of its relations with its investors in Delaware and the assets and operations of that company are situated in China that, in order for you to meet your obligation of good faith, you better have your physical body in China an awful lot. You better have in place a system of controls to make sure that you know that you actually own the assets.