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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 allow authorities to order foreign investors retroactively to divest acquisitions aims to protect major companies and supply chains. However, it is unlikely to reduce increased M&A activity.

Japan proposed Wednesday amendments to the foreign investment screening laws that would give authorities the?option of forcing foreigners to sell their investments deemed as posing risks to national and economic security. The proposals are being made as the administration of 'Japanese' Prime Minister Sanae Takayichi steps up its efforts to reduce risks posed by an inflow foreign money into Japan's economy and control over major 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, so officials are unable to intervene. These new powers are targeted at high-risk investors, such as those who might work with foreign powers for intelligence gathering. Since 2017, Chinese companies are required to?cooperate with the country's spy agencies.

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

Nicholas Benes of the Board Director Training Institute of Japan said, "Japan wants 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.

According to documents from the Ministry of Finance, these countries can order divestitures retroactively.

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

FIRST MAJOR OVERHAUL EVER SINCE 2019.

Japan is making its first major overhaul of its foreign investment screening laws since 2019. The threshold for reviewing stock purchases by foreign entities has been lowered from 10% to 1%.

The 1% threshold is a significant increase in the number of pre-transaction submissions that the Japanese government must deal with compared to other countries. However, the revisions will reduce the scope of the businesses subject to review. Yohsuke Higashi, a partner and M&A attorney at Mori Hamada and Matsumoto said that the scope of pre-transaction filing requirements needs to be significantly narrowed in order to achieve a balance. This is because post-closing interventions will be permitted and indirect investment requirements will be introduced. He said that Japan should also put more resources into enforcing the risk-mitigation requirements attached to approvals, and catching risky deals through post-closing intervention.

The review team was overloaded. I understand the need to prioritize more important cases. Another lawyer who worked on inbound investment deals, but declined to be identified, as they weren't allowed to speak publicly, agreed.

The changes to the foreign investments rules are a result of corporate governance reforms that were led by the Japanese government. These reforms?led to an increase in overseas interest in Japan, and helped to push the stock exchange to 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 involving Japanese companies or other direct investments in Japan.

Yuki Kanemoto is a senior research scientist at 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 and Anton Bridge. Additional reporting by Makiko Yamazaki)

(source: Reuters)