Unternehmensbewertung im Recht der Aktiengesellschaft: Ein japanisch-deutscher Rechtsvergleich

Abstract

SUMMARY

Legal questions concerning company valuation are of great practical importance. This is increasingly true also in cross-border contexts. A comparative law inquiry into company valuation is accordingly a high-priority task of today. It is, however, a challenging task as it requires not only an understanding of the company law framework but also an understanding of the economic foundations and professional standards encountered at home and abroad.
The article aims to explore the field of rule-based company valuation in the light of compensation granted under German and Japanese stock corporation law. It delivers a first contribution to the art of “intercultural company valuation”. The examination commences by clarifying the foundations and identifying the main areas of company valuation in Germany and Japan. The explanation how company valuations are conducted in each of the two countries begins with an analysis of the aims and methods of valuation. A distinction is made between valuations of listed stock corporations and those of closed companies. Special attention is paid to the consideration of synergy effects and the handling of discounts and surcharges in valuations in both countries. Next comes an analysis of the different procedural regulations associated with a court review of the valuation. Whereas Germany has a special law for these purposes, the “Spruchverfahrengesetz”, Japanese courts apply the general Law of Procedures in Noncontentious Cases as substantially amended in 2013.
The article closes with a comparative assessment of the German and Japanese approaches to company valuation in respect of compensation granted under stock corporation law. The picture that emerges portrays some distinctly common ground but also a number of remarkable differences between the two systems. In neither country has the legislator defined the central terms that the valuation is supposed to determine, respectively, “appropriate consideration” in Germany and “fair value” in Japan. This was left for the courts, which did, indeed, over time develop binding rules that economists commissioned with the task of valuation have to take into account. As result, a company valuation in Germany and Japan is today a strictly rule-based affair. Further shared features can be found in the methods of valuation in each country. In the case of closed companies Germany has for a considerable time used a discounted-cash-flow method, and in Japan this approach is becoming increasingly popular. In the case of listed companies, Japanese as well as German courts take the stock price into consideration as a criterion for the valuation. But while the former have, since as far back as 1975, regarded the stock price as the decisive criterion, German courts only started to pay attention to the stock price after the German Constitutional Court forced them to do so some 25 years later.
Conceptual differences can be observed, inter alia, in respect of the target of a company valuation: German courts still see it as their task to determine a limiting value that will allow a shareholder to exit the company without a loss. The Japanese lawmaker, by contrast, ended that court practice with a 2005 reform introducing the concept of a fair value that includes a consideration of synergy effects. Also, while in Germany a strong tendency exists to apply general standards, Japanese courts have recurrently emphasized the importance of paying heed to the specific circumstances of each individual case. Furthermore, whereas constitutional law plays no role in Japan, it has become decisive in German practice.