The Formation and Transformation of Securities Law in Japan: From the Bubble to the Big Bang

Abstract

It has been a tumultuous decade for Japanese securities markets. The collapse of the Bubble and advent of the Big Bang have reshaped the markets and spurred significant foreign investment. The newspapers are filled with accounts of mergers, acquisitions, and bankruptcies. Less widely reported, but equally important, has been the dramatic shift in Japanese securities law. Prior to the 1990s, private enforcement of Japanese securities law was "virtually non-existent." The collapse of the Bubble, a regulatory vacuum and unsatisfactory alternative dispute resolution changed this. There has been a litigation explosion resulting in new judicial norms. A proactive judiciary has imposed duties on securities companies and created private causes of action for investors without basis or counterpart in the Japanese Securities Exchange Law. These judicial norms, more than administrative or private norms, have come to regulate the retail securities markets.As with previous periods of judicial activism, the central government has stepped in with new legislation. However, in contrast to earlier retrenchments that removed disputes from the purview of the judiciary, the Diet has codified the new private causes of action and reinforced the role of the judiciary.The changes in Japanese securities law are illustrative of a remarkable shift in Japanese law and present an opportunity to better understand the changing roles of administrative agencies and the judiciary in Japan. These changes also present opportunities, as well as hidden pitfalls, for foreign financial institutions operating in Japan. This paper explores an important area and period of Japanese law that has thus far received little attention.