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M&A boom unlikely to be disrupted by Japan's increased oversight of foreign investment

Experts say that the Japanese plan to grant authorities the authority to order foreign investors retroactively to divest acquisitions aims to protect major companies and supply chains. However, it is unlikely to curb increased M&A activity, they add.

Japan proposed Wednesday amendments to its foreign investment screening laws that would give authorities the option to force foreigners into selling investments they deem to be a risk to national or economic security.

The proposals are part of a push by the Japanese government to reduce risks associated with a?an?inflow?of foreign money into Japan's economy and to maintain control over its key supply chains.

Currently, foreign investors who wish to purchase stakes in Japanese firms outside sectors critical to national or economic security do not have to notify the government beforehand, allowing officials no opportunity to intervene.

Investors who are classified as high-risk are targeted by the new powers, which include those who might work with foreign powers in order to gather intelligence. Since 2017, Chinese companies are required to work with the country's spy agencies.

The period in Japan during which transactions may be reviewed retroactively is around five years.

Nicholas Benes, founder of Board Director Training Institute of Japan, said that Japan would like to prevent Chinese companies from purchasing top-quality Japanese technology and companies.

A government source stated that the proposed changes include stricter requirements on indirect investments made by foreign parents in Japanese companies. This is to bring Japan up to par with its allies, such as the U.S.A, Britain, and Germany, in terms of security oversight.

According to documents issued by the Ministry of Finance, these countries can order divestitures of stakes retroactively.

Benes, a corporate governance expert, said that "in principle, this doesn't stand out as a sore finger because it is similar to other countries' practices."

FIRST MAJOR OVERHAUL EVER SINCE?2019

The first major revision to Japan's foreign investment screening laws since 2019 has been made. This is because the threshold for reviewing stock purchases by foreign entities, which was previously 10%, has now been lowered to just 1%.

The Japanese government will have to review roughly 10 times as many pre-transaction documents than any other country, even though the revisions will limit the number of companies that can be reviewed.

Yohsuke Higashi, a partner and M&A attorney at Mori Hamada and Matsumoto said that the scope of requirements for prior filing should be significantly narrowed in order to strike a balanced, as post-closing interventions will be permitted and requirements will be introduced for indirect investment.

He said that Japan should also?invest more resources in enforcing conditions for risk mitigation attached to approvals, and catching risky transaction through post-closing intervention.

The review team was overloaded. I understand the need to prioritize more important cases. Another lawyer who worked on inbound investments declined to be named as they weren't allowed to speak publicly.

Foreign investment rules were changed in response to corporate governance reforms that the Japanese government implemented. These reforms sparked an increased interest from overseas investors and helped the stock market reach record highs.

According to LSEG, inbound M&A activity jumped 45% compared to a year ago to $33 billion.

Experts say that the proposed changes will not have a significant impact on foreign investment.

Higashi stated that the changes will not discourage M&A aimed at Japanese companies or other direct investments in Japan.

Yuki Kanemoto is a senior researcher with the Daiwa Institute of Research. She also predicts little impact.

He said that the relatively low number of cases that were formally rejected could lead some to believe Japan was more permissive at the moment than Europe or the United States.

"But I suspect that there are a number of cases where an effective rejection was made behind the scenes."

Japan has only rejected one deal in 2008 under its Foreign Investment Screening Law - the attempt to purchase Electric Power Development by London's Children's Investment Fund. (Reporting and editing by Sam Nussey, Thomas Derpinghaus, Anton Bridge)

(source: Reuters)