Nagashima Ohno & Tsunematsu > Ho Chi Minh City, Vietnam > Firm Profile

Nagashima Ohno & Tsunematsu > Firm Profile

Nagashima Ohno & Tsunematsu is the first integrated full-service law firm in Japan and one of the foremost providers of international and commercial legal services based in Tokyo. In representing its leading domestic and international clients, the firm has successfully structured and negotiated many of the largest and most significant corporate, finance and real estate transactions related to Japan. The firm has extensive corporate and litigation capabilities spanning key commercial areas such as antitrust, intellectual property, labor and taxation, and is known for path-breaking domestic and cross-border risk management/corporate governance cases and large-scale corporate reorganizations.  The over 500 lawyers of the firm, including about 40 experienced attorneys from various jurisdictions outside Japan, work together in customized teams to provide clients with the expertise and experience specifically required for each client matter.

The firm’s HCMC office (Nagashima Ohno & Tsunematsu HCMC Branch) provides a wide range of legal services on matters regarding business expansion into Vietnam, real estate development, infrastructure projects, merger and acquisition and other investment, labor issues, anti-corruption law issues, and so forth.

For more information, please visit the firm’s website.

Press Releases

NO&T joins the Human Capital Management Consortium

13th September 2022 Nagashima Ohno & Tsunematsu (“NO&T”) is pleased to announce that it has joined the Human Capital Management Consortium.The Human Capital Management Consortium was established on August 25, 2022, as a forum for sharing advanced examples of the practice of human capital management, discussing inter-company cooperation, and considering means for effective information disclosure. The Consortium has seven founders, including Kunio Ito, Director of the CFO Education and Research Center at Hitotsubashi University. The Ministry of Economy, Trade and Industry and the Financial Services Agency participate in the Consortium as observers.Amid the growing importance of human capital in corporate activities, NO&T endorses the purpose of establishing the Consortium and will contribute to efforts to implement corporate human capital management and effective information disclosure. Please click here for more information on the Human Capital Management Consortium.View original article here.

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August 25 2022

NO&T joins the Council for Sports Ecosystem Promotion

30th June 2022 Nagashima Ohno & Tsunematsu (“NO&T”) is pleased to announce that it has joined the Council for Sports Ecosystem Promotion as a general member company/organization.

NO&T registers as Healthcare Innovation Hub Support Organization

15th April 2022 Nagashima Ohno & Tsunematsu (“NO&T”) is pleased to announce its registration as a Support Organization of Healthcare Innovation Hub (commonly known as “InnoHub”).

Announcing New Counsel of NO&T

8th April 2022 Nagashima Ohno & Tsunematsu (“NO&T”) is pleased to announce that the following four lawyers in the Singapore office became Counsel of the firm as of April 1, 2022:

Yuko Miyazaki appointed as an International Judge of Singapore International Commercial Court

6th January 2022 Yuko Miyazaki was appointed as an International Judge of Singapore International Commercial Court (SICC) as of January 5, 2022.

Announcing New Partners and Counsel of NO&T

5th January 2022 Nagashima Ohno & Tsunematsu (“NO&T”) is pleased to announce that the following ten lawyers became Partners of the firm as of January 1, 2022:

Legal Developments

Japanese offshore wind energy: 2022 update and outlook

5th January 2023 Countries around the world are tackling the unprecedented dual challenge of achieving climate targets to halt the worst effects of global heating whilst ensuring the stable supply of energy. The Japanese Government is no exception and aims to make renewable energy a major source of electricity to achieve its goal of net-zero greenhouse emissions by 2050. A key component of the Japanese Government’s plan is the utilization of offshore wind energy. The Japanese Government is planning to facilitate the development of 10GW of offshore wind energy capacity by 2030 and possibly another 20GW-35GW capacity by 2040.

Rulemaking developments for Level 4 autonomous driving

5th January 2023 On October 27, 2022, the National Police Agency of Japan (the “NPA”) issued drafts of amendments to Cabinet Orders and Ordinances (the “Draft Amendments”) under the Road Traffic Act (the “RTA”) for public comment. The Draft Amendments follow on from amendments made to the RTA, which were passed in April 2022, that introduced a framework to permit vehicles with Level 4 autonomous driving functionality to drive on public roads in Japan. The Draft Amendments include detailed rules with respect to Level 4 autonomous driving, such as the information required to be submitted to obtain the relevant permit, the requirements for individuals engaging in autonomous driving and the requirements for remote monitoring systems. The new rules relevant to Level 4 autonomous driving are scheduled to enter into force in April 2023. The Draft Amendments provide a clearer view of the regulatory framework under the amended RTA and may facilitate the development of autonomous transportation-related services in Japan. This article highlights a number of key points covered in the Draft Amendments.

Recent trends in Chinese merger filing: Why does it take so long?

5th January 2023 Since the enactment of Chinese Anti-Monopoly Law (“AML”) in 2008, merger filings in China have become a common bottleneck for global M&A transactions due to the long time required for review and the difficulty in predicting the prospects for clearance. The implementation in 2014 of a simplified procedure available to transactions that satisfy certain market share thresholds or fall within certain circumstances, as well as the accumulation of experience by the State Administration for Market Regulation (“SAMR”), the Chinese antitrust authority, led to an overall improvement. However, in the past few years, several high-profile M&A transactions still needed significant time to obtain merger filing clearance in China despite utilizing the simplified procedure and having a relatively small impact on the Chinese market.

Changes to rating algorithms used by online platform business operators may violate the Antimonopoly Act

12th October 2022 On June 16, 2022, the Tokyo District Court held that “Kakaku.com”, the operator of an online restaurant review and search platform, had abused its superior bargaining position and violated the Antimonopoly Act by improperly changing its restaurant rating algorithm.

Trends and market standards regarding startup investment in Japan

12th October 2022 According to a recent survey [1], the amount of total funds raised by startups incorporated in Japan reached a record high and exceeded JPY 800 billion in 2021 (the total funding amount was just shy of JPY 90 billion in 2013). Despite the weakening economy and stock market, the pace does not seem to have slowed down in the first half of 2022 during which startups have been reported, in the same survey, to have raised more than JPY 400 billion. Although higher growth rates can be observed in some other regions of the world, the startup industry in Japan has continued to grow steadily during this decade.

Developments in sustainability and corporate governance disclosure in Japan

12th October 2022 On June 13, 2022, the Working Group on Corporate Disclosure of the Financial System Council, an expert council established under the Financial Services Agency of Japan (the “Working Group”), published its report (the “Report”) regarding the proposed reformation of the corporate disclosure obligations of Japanese listed companies [1]. In the Report, the Working Group proposed (i) the strengthening of non-financial disclosures, including sustainability and corporate governance information, (ii) the revision of the quarterly disclosure system and (iii) the promotion of English language disclosures and other matters. In the months ahead, the Working Group will further discuss the forthcoming detailed rules and regulations regarding the corporate disclosure reformation based on the framework formulated in the Report. After the reformation, it is expected that an Annual Securities Report (“ASR”) or other periodical report issued by a Japanese listed company under the Financial Instruments and Exchange Act of Japan (the “FIEA”) will be required to contain detailed sustainability and corporate governance information.

Sports Betting and E-sports in Japan

2nd September 2022 In recent years the worldwide global sports betting market has demonstrated rapid growth year on year and shows no sign of slowing down. For example, the total amount of sports betting in the United States in 2021 was estimated to have been USD 57.22 billion, an increase of approximately 164% from the previous year's total of USD 21.6 billion [1]. While there may be some opposition against proposals to legalize sports betting in Japan, including concerns about the effect on the integrity of sports competition and gambling addiction, the Japanese government is actively considering the pros and cons of permitting sports betting in Japan in order to keep up with the movement of the global market, increase revenues from professional sports and protect the image and likeness of clubs and athletes in professional sports in Japan. In that regard, in relation to the legalization of sports betting, the Ministry of Economy, Trade and Industry of Japan (METI) has begun preparations and the Japan Sports Agency established the Sports Future Development Council.

JFTC merger review to increase reliance on 4c/4d-style internal documents

24th August 2022 On June 22, 2022, the Japanese Fair Trade Commission (the “JFTC”) published a document entitled “The Fair Trade Commission’s Practices Regarding the Submission of Internal Documents in Business Combination Reviews” (the “Guidelines”). The Guidelines signal a shift from the JFTC’s past practice in merger reviews in that, going forward, the JFTC may be more likely to request internal documents from parties involved in merger transactions to determine the merger’s potential impact on the market. The Guidelines indicate the JFTC’s intention to align with international practices, including the U.S. and the EU, in terms of not only the frequency of the requests for internal documents, but also the scope of the document requests. A key difference between Japan and other jurisdictions that parties must keep in mind when preparing internal merger documents is that Japan has no concept of legal attorney-client privilege. As a result, internal documents with attorney comments can be subject to a JFTC document request.

Key takeaways for system vendors from the Japan Fair Trade Commission’s survey report on procurement of information systems by government offices

1st July 2022

Introduction

On 8 February 2022, the Japan Fair Trade Commission (“JFTC”) published its “survey report on procurement of information systems by government offices” (“Report”)^[1].

Shareholder Meeting Digitalization in Japan

24th June 2022

I. Introduction

While discussions about the digitalization of shareholder meetings have been gradually increasing in recent years, the COVID-19 pandemic has drastically accelerated the digital movement in Japan. On June 16, 2021, legislation came into force permitting listed companies to hold exclusively virtual shareholder meetings. Similarly, legislation allowing the electronic distribution of shareholder meeting materials is scheduled to enter into force on September 1, 2022.

Progress in the Human Rights Due Diligence in Japan

24th June 2022

I. Introduction

ESG is facing increased attention from various stakeholders, including regulators, investors and consumers, and among all, human rights, which is positioned as S in ESG, increases the need for due diligence in recent years. METI (The Ministry of Economy, Trade, and Industry) and MOFA (The Ministry of Foreign Affairs) conducted a survey last year regarding companies’ human rights due diligence, and it found that half of Japan’s publicly traded companies do not do due diligence on human rights. Of those who do not, around 30% said they do not know how to conduct such investigations. Since the survey was limited to listed companies and the response rate was not high, it is likely that many more Japanese companies have not actually conducted due diligence. However, with the upcoming guidelines (as described below) and European legislation, Japanese companies will be more required to perform human rights due diligence.

Loan Refinancing in Japan by way of Amendment and Restatement

24th March 2022

I.            Introduction

Refinancing can be a good option for parties seeking to gain improved terms and conditions of existing loan arrangements. For example, in order to achieve a better gearing ratio and partial return of capital, a borrower of the project financing of a power plant might consider refinancing for the purposes of lowering the interest rate and the required DSCR after a certain period of time following the commencement of the operation given that the risk profile of the operational phase is different from the development phase.

Whistleblowing Systems Required by the Amended Whistleblower Protection Act

24th March 2022

I. Introduction

The importance of robust internal whistleblower systems has been highlighted recently in Japan with a number of large-scale corporate misconduct being identified through whistleblowing reports. Since one of the most important aspects of corporate crisis management is to detect and rectify compliance incidents as soon as possible, establishing an effective whistleblowing system is crucial for many, if not all, business operators. Against this background, on June 12, 2020, a partial amendment (the “Amendment”) to the Whistleblower Protection Act (the “Amended Act”) was promulgated. The objective of the Amendment is to strengthen the protection of whistleblowers and facilitate more proactive reporting. The Amendment will take effect on June 1, 2022. While the Amendment has a wide scope, two areas of particularly importance are (i) the mandatory^[1] establishment of internal systems to enable business operators to appropriately respond to public interest whistleblowing reports^[2], and (ii) the designation of persons responsible for responding to public interest whistleblowing reports.

II. Mandatory Establishment of Internal Systems to Enable Business Operators to Appropriately Respond to Public Interest Whistleblowing Reports

Article 11 (2) of the Amended Act requires business operators to establish internal systems and take other measures necessary to respond appropriately to public interest whistleblowing reports. According to the guidelines issued for the appropriate and effective implementation of measures to be taken by business operators pursuant to Article 11, Paragraphs 1 and 2 of the Whistleblower Protection Act (the “Guideline”), those systems and measures are largely divided into three elements (i) systems to respond to whistleblowing reports across divisions and departments, (ii) systems to protect whistleblowers, and (iii) measures to ensure the effective function of the whistleblowing systems.(i) Systems to Respond to Whistleblowing Reports Across Divisions and DepartmentsA business operator shall (i) establish an internal whistleblowing contact (the “Contact”) and clearly specify the departments and persons in charge of receiving whistleblowing reports from the Contact, conducting investigations, and taking the necessary measures to rectify the misconduct specified in the whistleblowing report; (ii) take measures to ensure independence in cases where management is suspected of having involvement in the reported misconduct; (iii) conduct necessary investigations unless there are justifiable grounds not to commence an investigation; and (iv) take measures not to involve persons who are related to the case and to eliminate any conflicts of interest.(ii) Systems to Protect WhistleblowersA business operator shall take measures to prevent disadvantageous treatment against whistleblowers, including, but not limited to, taking disciplinary action or other appropriate measures when disadvantageous treatment occurs. A business operator shall also develop systems to prevent employees and officers from sharing information contained in whistleblowing reports outside of the necessary scope and shall take appropriate remedial and restorative measures in the event of improper information sharing.(iii) Measures to Ensure the Effective Function of the Whistleblowing SystemsA business operator shall (i) provide education and training regarding the Amended Act and whistleblowing systems to employees, officers and retirees, (ii) in cases where a whistleblower report is received in writing, promptly notify the whistleblower of the remedial measures implemented to address the reported facts, to the extent that doing so does not hinder the proper execution of business and the protection of the confidentiality, credibility, reputation and privacy of the parties involved, (iii) take measures concerning the retention, review and improvement of whistleblowing records, and the disclosure of the operating results of the whistleblowing systems. Additionally, the elements required to be taken by the Guideline shall be reflected in a business operator’s internal rules and the business operator shall operate in accordance with those rules.

III. Designation of Persons Responsible for Responding to Public Interest Whistleblowing Reports

Article 11 (1) of the Amended Act requires business operators to designate a person (the “Designated Person”) to receive whistleblowing reports, conduct investigations into the reported facts, and engage in initiatives to implement remedial measures to address the results of the investigations^[3]. If in the course of their work, the Designated Person becomes aware of certain information that would allow them to identify the whistleblower, the Designated Person becomes subject to a strict duty of confidentiality, which, if violated, would subject the Designated Person to potential criminal penalties composed of a monetary fine of not more than JPY 300,000. The introduction of such a duty of confidentiality can be regarded as a major revision in Japanese practice and, thus, it is necessary to include in the internal rules that the business operator shall clearly notify the Designated Person of their duties and obligations.Notwithstanding the above, under Article 12 of the Amended Act, disclosure by the Designated Person of the protected information does not constitute a violation of the duty of confidentiality if there is a "justifiable reason" for such disclosure. It can be reasonably assumed that there would be a "justifiable reason" in cases where the whistleblower has given his or her consent, or where information is shared with persons who require such information for the purpose of conducting the investigation.

IV. Comments

While many business operators may have already established an internal whistleblowing system, the introduction of the Amended Act and the Guideline is a timely reminder for business operators to review their internal practices. As the whistleblowing system constitutes an extremely important part of a company's compliance system, it is important for each business operator to examine its specific arrangements by referring to the Amended Act and the Guidelines to ensure its processes are compliant and in line with best practice.View original article here.

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[1] Business operators with 300 or less employees on a regular basis are only obligated to make an effort to meet those requirements.[2] Public interest whistleblowing reports mean whistleblowing reports that fall under the category of Public Interest Whistleblowing Report provided for in Article 3, Item 1 and Article 6, Item 1 of the Amended Act.[3] Business operators with 300 or less employees on a regular basis are only obligated to make an effort to appoint a Designated Person.

Japan’s Economic Sanctions against Russia

24th March 2022

I. Introduction

In light of the current conflict between Russia and Ukraine, the Japanese government has implemented various economic sanctions against Russia based on the Foreign Exchange and Foreign Trade Act of Japan (the “Foreign Exchange Act”). Japan’s economic sanctions have been implemented in concert with many western industrialized countries and regions (such as the US, the EU and the UK), and consist of, among others, import/export restrictions, the freezing of assets of certain individuals and entities, and a prohibition on issuing or circulating certain securities.