Corporate governance rules divide Japan

By Michiyo Nakamoto in Tokyo
Published: May 28 2009 17:24 Last updated: May 28 2009 17:24

It used to be said that Japan’s business community, bureaucracy and politicians formed an iron triangle that was a key factor in the country’s post-war industrial success.
But a stand-off between the Keidanren, Japan’s powerful business lobby, and regulators over whether listed companies should be required to appoint outside directors has exposed cracks in the foundations of the Japanese economic edifice.
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The Keidanren – headed by the indomitable Fujio Mitarai, chairman of Canon – is resisting an initiative by the Ministry of Economy, Trade and Industry to require listed companies to appoint outside directors as a means to improve corporate governance.
Japanese regulators, once criticised for their cosy relationships with companies, have joined investors in raising concerns about the impact of poor corporate governance on the future of the Japanese economy.
The issue of outside, independent directors has been the subject of much debate in recent years, particularly after it was raised by foreign fund managers unhappy with corporate governance standards in Japan.
Under Japanese company law, companies are free to choose between two systems of corporate governance: a system with committees, which requires the appointment of outside directors; and a statutory auditor system, which does not call for outside directors.
In practice, although just 56 of the 2,634 companies listed on the Tokyo Stock Exchange have opted for the committee system, only 1,057 companies have outside directors. Corporate governance advocates, such as the Asian Corporate Governance Association, as well as foreign business lobby groups, including the American Chamber of Commerce in Japan, believe companies should be required to have one-third of board members who are independent.
Regulators too, including Meti, the TSE and the Financial Services Agency have been working to improve corporate governance standards. “Investors are rapidly losing confidence and interest in [the] Tokyo market . . . market players, including . . . listed companies, are facing an urgent need to restore investor confidence and interest,” the TSE noted in a recent report.
The FSA has considered requiring mutual funds and insurance companies to disclose how they voted at shareholder meetings.
Meti plans to compile a report next month on reforms to Japan’s system of governance, in which it would like to include some form of requirement that companies appoint independent directors, as well as a clear definition of what is meant by independence.
But efforts by regulators to implement changes that would bring Japan’s corporate governance standards more in line with international practice have met fierce resistance from the business community. “There is no relationship between a company’s performance and whether or not they have outside directors,” says Yasuhisa Abe, director of the business infrastructure bureau of the Keidanren.
A draft report by Meti’s Corporate Governance Study Group published on Tuesday, suggests Keidanren’s opposition is leading to a compromise solution.
According to the draft, companies will be allowed to choose whether to appoint outside directors. But companies that do not appoint outside directors must disclose their own system of management oversight.
The changes will make Japanese rules similar to the “comply or explain” system in the UK, whereby it is recommended companies have a majority of independent directors and if they do not, are required to explain why.
For many investors concerned about corporate governance in Japan, the final outcome is likely to fall significantly short of what they had hoped for. As one observer notes, given the Keidanren’s power and the lack of public debate, any attempt to impose changes that the business community opposes will end up “whittled down and diluted”.