PLC Global Finance update for November 2010: Japan | Practical Law

PLC Global Finance update for November 2010: Japan | Practical Law

The Japan update for November 2010 for the PLC Global Finance multi-jurisdictional monthly e-mail.

PLC Global Finance update for November 2010: Japan

Practical Law UK Articles 9-504-0459 (Approx. 3 pages)

PLC Global Finance update for November 2010: Japan

by Atsumi & Sakai
Published on 30 Nov 2010Japan
The Japan update for November 2010 for the PLC Global Finance multi-jurisdictional monthly e-mail.

Capital markets

Tokyo Stock Exchange to launch PRO-BOND market

On 10 November 2010, Tokyo AIM, Inc., a subsidiary of Tokyo Stock Exchange Group Inc., announced that it will establish the "TOKYO PRO-BOND Market" (a bond market for professional investors) though no exact date has yet been set.
Tokyo AIM, Inc. previously launched TOKYO AIM; a stock market for professional investors.
Tokyo AIM, Inc. has stated its intention is that the new market becomes a centre for the Asian bond and to be competitive with the Euromarket. The new market will enable issuers to benefit from a speed and flexibility of issuance equivalent to using Euro MTN programmes, by means of simplified disclosure documents and procedures.
The types of securities to be covered by the TOKYO PRO-BOND Market includes:
  • Straight corporate bonds.
  • Government agency bonds.
  • Investment corporation bonds.
  • Municipal bonds.
  • Bonds issued by an SPC under Japanese Securitisation Law.
  • Securities issued by foreign entities which are similar to the abovementioned type of bonds.
Listing on the PRO-BOND Market will be made by application by the issuers after prior consultation with Tokyo AIM, Inc. Unlike Tokyo AIM, appointment of J-Nomad as a listing agent is not necessary for listing on the PRO-BOND Market. The main listing criteria are:
  • That the bonds be rated by a rating agency that is registered in Japan or an agency deemed equivalent to such registered agency.
  • That the lead managing underwriter is listed on the lead manager list of the PRO-BOND Market.
Disclosures can be made either in Japanese or English. Disclosure at the time of listing is composed of program information and individual information. Ongoing disclosure obligations will be, unlike those applicable to stock markets, limited to events such as dissolution, insolvency, dishonour of notes, etc. The details of disclosure obligations are to be determined.

Dispute resolution

Method of compulsory execution against real estate held by an association without legal capacity clarified by Japanese Supreme Court

On 29 June 2010, the Supreme Court of Japan clarified that courts may grant an order for compulsory execution against real estate held by an association lacking legal capacity (kenri noryoku naki shadan) even though the real estate was not registered in the name of the association due to its lack of legal capacity. The decision provides welcome clarification with regards to an issue that has been met with divided opinion in Japan.
As a general rule under Japanese law, in order to obtain compulsory execution against real estate, the petitioner would need to show that the name on the document evidencing the right to enforce against the obligor (for example, a final and binding court decision against such obligor) is the same as the name on the property register. The problem was that the Supreme Court would not allow an association without legal capacity to register real estate in the name of the association due to the members of the association being treated as co-owners of assets held by it. As such, any real estate held by an association without legal capacity would be registered in the name of the individual who is its representative or in the name of all individual members.
In its decision, the Supreme Court held that it will grant an order for compulsory execution against real estate held by an association if the petitioner can show that the real estate belongs substantially to the association (irrespective of the name in which the real estate is registered). In relation to the evidence required, the majority simply referred to a final and binding judgment or alternative equivalent document proving that the real estate substantially belongs to the association. Further, one of the judges issued a supplemental opinion that the evidential burden may also be met by providing other forms of evidence such as a record of settlement, notarial deed or similarly formal document stating that:
  • The relevant real estate is substantially owned by the association.
  • That the registered holder of the real estate is a member of the association.