Corporate governance reforms in Japan – practical views of a Board Director

Board Director's view of corporate governance reforms in Japan. New governance rules introduced by the Tokyo Stock Exchange in June 2015 bring rapid change.

A Board Director’s view

Corporate governance reforms in Japan progress faster than even one of their key promoters expected, and cost almost no tax payers money

Author: Gerhard Fasol

Corporate governance reforms in Japan are one component of “Abenomics” to bring back economic growth to Japan.

Corporate governance reforms in Japan are driven at least in part by the spectacular stagnation of Japan’s top 8 electronics conglomerates, which 25 years ago dominated world electronics, but largely failed to adapt to the changes driven by much more agile Silicon Valley or South Korea based competitors. The right type of Board Directors, could potentially have rung the alarm bells much earlier, and woken up executive management under their supervision.

A welcome factor is that corporate governance reform costs Japan’s heavily indebted Government almost no money – unlike public works programs, and similar traditional ways of stimulating the economy.

The speed with which Corporate Governance Reforms in Japan are being implemented surprised even one of their main promoters, emeritus Group CEO of the Japan Exchange Group, Atsushi Saito, as expressed in his recent talk.

In March 2014 the shareholders appointed me as independent Board Director of the Japanese cybersecurity company GMO Cloud KK, which is listed on the First Section of the Tokyo Stock Exchange. Our main business are internet security solutions, cybersecurity, digital identity management solutions, and cloud hosting and related services and solutions.

Read an article on Corporate Governance Reforms here in the Journal of the American Chamber of Commerce in Japan (ACCJ), and more below in this post – from my experience practicing corporate governance in Japan as a Board Director.

The main components of corporate governance reform in Japan

The main components of Japan’s corporate governance reform are:

  1. The revision of the Company Law (会社法(平成十七年七月二十六日法律第八十六号)), Law No. 816 of July 26, 2005. The latest revision is No. 63 of September 4, 2015 (平成二七年九月四日法律第六三号).
  2. The Corporate Governance Code of the Tokyo Stock Exchange (TSE), issued on June 1, 2015, “Seeking Sustainable Corporate Growth and Increased Corporate Value over the Mid- to Long-Term”
  3. Japan’s Stewardship Code, issued by Japan’s Financial Services Agency (FSA) on February 26, 2014, “Principles for Responsible Institutional Investors ≪Japan’s Stewardship Code≫- To promote sustainable growth of companies through investment and dialogue”

What is corporate governance and why?

Japan’s Corporate Governance Code, which was issued by the Tokyo Stock Exchange on June 1, 2015, defines Corporate Governance as “a structure for transparent, fair, timely and decisive decision-making by companies, with due attention to the needs and perspectives of shareholders and also customers, employees and local communities”.

The subtitle of Japan’s Corporate Governance Code is its mission statement: “Seeking sustainable corporate growth and increased corporate value over the mid- to long-term”.

Corporate governance has been analyzed in great detail in Professor John Kay’s analysis of UK’s capital markets: “The Kay Review of UK Equity Markets and long term decision making“, which was triggered by certain M&A transactions among other factors, and published on 23 July 2012.

“The Kay Review of UK Equity Markets and Long-Term Decision Making” has been archived in UK’s National Archives here.

The Kay Review analyzes UK’s capital markets in depth, and argues that its companies’ duty to be successful in the long-term, and its only the success of companies that brings wealth to all stake holders and people who invest in companies, in many cases pensioners. Over the years a fine grained system of specialized service providers has developed between companies on one side, and individual investors on the other side. Professor Kay argues that this system of intermediaries (fund managers, analysts etc) can be seen as “overhead” and needs to be as efficient as possible.

Overall the capital market system needs to be built on long term trust and stewardship, not on anonymous one-time monetary transactions.

The Kay report had important impact, for example it led to the end of the requirement of quarterly financial reports by UK companies, as we discussed here.

Martin Lipton, of the NY law firm Wachtell, Lipton, Rosen & Katz, in an article published on the Harvard Law School Forum on Corporate Governance and Financial Regulation blog encourages the US Securities and Exchange Commission (SEC) to keep the UK developments in mind, when reforming the reporting requirements for US corporations, and also calls for an end to the requirement of quarterly reporting.

Why end the requirement of quarterly financial reports? Because short term focus on quarterly financial performance may cloud the view on long-term success and investment. Intense discussions between fund managers and management are strongly encouraged.

Will the end of quarterly financial reporting reach Japan?

Why Japan’s focus on corporate governance?

GNP as a measure of economic size has many flaws – however many signals, not just GNP, indicate that Japan is the only major economy that does not grow.

While there are many excellent Japanese corporations, overall it is no secret that Japan’s economy has the potential to do much much better.

Japan’s decline was even deplored by Keidanren and Toray Chairman Sadayuki Sakakibara at the 2015 Kyoto Bank New Year Gala event. Stanford Economics Professor Takeo Hoshi has analyzed the factors which caused Japan’s economy to stop growing after catching up with the developed economies, see Professor Hoshi’s recent talk about Abenomics for the Stockholm School of Economics.

A case in point are Japan’s 8 large electronics conglomerates which combined are approximately the same size as the economy of The Netherlands. Unlike The Kingdom of the Netherlands, Japan’s top 8 large electronics conglomerates have not grown for the last 20 years, while on average reporting losses over these 20 years. While Japan’s top 8 electronics conglomerates dominated the global electronics sector, they have been faded, and today Apple alone is about 10 times bigger in market cap/value than all top 8 Japanese electronics conglomerates combined, see: “Japan’s electronics giants – FY2012 results announced. 17 years of no growth and no profits.

There is much hope that outside directors supervising executive management will bring outside expertise, and improve the performance of company-insider executive management, and if necessary also insist on replacements.

Much faster than expected

One of the most outspoken promoters of corporate governance reform is emeritus Tokyo Stock Exchange Chief Executive Atsushi Saito. In a recent talk, Atsushi Saito expressed his great surprise that corporate governance reform was implemented in Japan must faster than he had expected.

The cheapest part of “Abenomics” – corporate governance reform comes at essentially zero cost to tax payers

Many measures of Premier Minister Abe’s “Abenomics” stimulation programs pump borrowed Government Bonds (JGB) money into the economy, thus cost money and ultimately increase Japanese very large Government debt.

By comparison, corporate governance reforms cost essentially zero cash and don’t further increase government debt.

Theory and practice

Non-diversity: about 0.6% of Japanese Board Directors of listed companies are non-Japanese

As of 17 December 2015 Japan has 3504 listed companies on the exchanges operated by the Japan Exchange Group:

  • TSE 1st section: 1933 (incl. 6 foreign companies)
  • TSE 2nd section: 544 (incl. 1 foreign company)
  • Mothers: 219 (including 1 foreign company)
  • JASDAQ Standard: 750 (including 1 foreign company)
  • JASDAQ Growth: 44 (including 0 foreign company)
  • TOKYO PRO Market: 14 (including 0 foreign company)
  • Total: 3504 (including 9 foreign companies)

In addition there are three regional exchanges:

  • Fukuoka Stock Exchange
  • Nagoya Stock Exchange
  • Sapporo Stock Exchange

Assuming there are about 10 Board Directors per company, there are about 35,000 Board Directors of listed companies in Japan. Of these approximately 200 are foreigners, ie. about 0.6% of Directors of listed Japanese companies are foreign (I am one of these).

Maybe 10-20 of Japan’s public companies are “Englishized” such as Rakuten or SoftBank, or hire simultaneous interpreters at Board Level (you’ll see Directors with headphones listening to the interpreted/translated version of what is being said – of course slowing and filtering understanding and communication)

All other approx. 3490 Japanese Stock Exchange listed companies are run 100% in Japanese language at all levels including Board level – and almost exclusively by Japanese men.

In a rapidly globalizing world, these companies desperately need global input from many nationalities, different backgrounds, and genders at Board level in Japanese language, but the number of people providing this depth of diversity, having the qualifications and being able to function at Board level in Japanese in addition to several other languages is severely limited – this is one of several factors limiting Japan’s growth after having caught up with developed countries in the 1980ies.

What are the main issues?

Diversity delivers better decisions and better results

Japan has many outstanding leaders, such as SoftBank’s founder Masayoshi Son, or Kyocera’s founder Kazuo Inamori, who also founded part of today’s KDDI, and who turned around Japan Airlines from bankruptcy in his 80s.

Some Japanese Executives are outstanding leaders, however, many are not, but function more like chief administrators – as in any other country.

Outstanding leaders don’t fear working with excellent people and will attract top leaders. However, chief administrator type executives will fear for their power and will assemble teams who fear to speak out, as can be observed in many recent corporate scandals in Japan, and many other major countries. Corporate scandals and corporate governance failures may happen anywhere, not just in Japan.

Diversity at top management levels and Board levels has many benefits, as has been proven in many studies. Diversity delivers better decisions and better results. Boards of Directors are one way to bring diversity to decision making.

Overcoming stagnation

Many major Japanese corporations show no growth and no income for the last 20 years.

A showcase example are Japan’s top-8 electronics conglomerates. Combined they are as large as the economy of the Netherlands, but contrary to The Netherlands, they have shown no growth for the last 17-20 years, as well as losing money on average over all these years. Of course, as a consequence the market capitalization = value of these top-8 electronics companies has decreased dramatically. While Japan’s top-8 electronics companies dominated 60% or more percent of the global electronics industry in the 1980, they have fallen steep. Clearly a dramatic example of failed corporate governance, and surely a big push for Prime Minister Abe to put so much priority on improving Japan’s corporate governance, together of course with the need to improve employment, and returns for pension funds to fund Japan’s aging population.

Three forms of corporate organization: splitting supervision and execution

Traditionally, executives supervised themselves at Board level

Traditional Japanese corporation have a Board of Directors composed of corporate executives, i.e. the executives supervise themselves without external supervision or input. Supervision is done by the Kansayaku Board (corporate auditor’s Board) which however has limited powers on corporate decision making.

Japan’s corporate government reforms now give Japanese companies options to split execution (executives, 執行役員) and supervision (Board Directors, 取締役).

Japanese corporations now can chose between three forms of organization

  • company with Kansayaku Board
  • company with Supervisory Board
  • company with three committees:
    • Nomination Committee
    • Audit Committee
    • Remuneration Committee

According to the new Corporate Governance Code, the Board (independent which of the three options is selected) has the following three duties:

  1. setting the directions of corporate strategy
  2. encourage and support appropriate risk taking by senior management
  3. supervise Directors and executive management, including senior executives (執行役員)

Connecting the dots: the link between accounting issues and the space shuttle Challenger disaster

Toshiba’s recent accounting issues reflect much deeper fundamental problems – of course.

I see parallels between Toshiba’s accounting issues and the space shuttle Challenger disaster: Nobel Prize Winner Richard Feynman determined that the cause of the space shuttle Challenger disaster was the failure of top management to communicate with the people doing the work (“genba”, 現場): “Appendix F – Personal observations on the reliability of the Shuttle, by R. P. Feynman“.

Space shuttle Challenger’s top management was insisting to keep the planned launch date fearing public relations issues, while the workers and engineers on the ground, “genba”, knew that they were not ready. But top management at space shuttle Challenger did not listen to “genba”.

My advice to Japanese corporations: embrace and learn to love diversity!

Embrace and learn to love diversity! Diversity delivers better results overall. We all learn from each other.

My advice to foreign investment funds seeking more influence on Japanese companies

Shouting at the CEO or Boards of Japanese companies will not help – many foreign activist investors have already proven this fact many times. Insisting on your superior knowledge will not make you many friends – as anywhere else.

You need to develop trust and relationships. You need to start by learning Japanese, understanding Japan, and earn trust and contribute with achievements, or partner with people who have: KKR hired Japan Exchange Group emeritus CEO Atsushi Saito.

There are no increasing numbers of examples, where outstanding Japanese corporations careful listen to outside advice from investors, and thus become even more outstanding: SONY and robotics maker FANUC come to mind.

My advice to foreign companies operating in Japan

Your subsidiary in Japan is a Japanese corporations and needs corporate governance. There have been a long list of corporate governance failures leading to huge problems and losses at foreign subsidiaries in Japan, in the financial sector, the elevator sector, the pharmaceutical sector and several others.

Make good use of the Board of Directors of your Japanese subsidiary corporation.

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