‘Reception’ and ‘Convergence’ of Japanese and German Corporate Law

Abstract

The more recent developments of Corporate law in both Japan and Germany have seen strong influence from the US-model, causing the content of both laws to become increasingly similar. This assimilation of the laws is a phenomenon that may be called a ‘convergence’ of the two laws. The article first examines the development of Japanese Corporate law under German influence, together with the issues arising from this, and then turns to the question of how both Japanese and German Corporate law were in turn influenced by US law. Finally, issues arising from this ‘convergence’ are addressed.

Initially, the relationship between Japanese and German law was one in which the former received from the latter; an influence that began with the first codifications in Japanese Commercial and Corporate law. This contribution first traces the degree of reception of German legal theory in the area of Corporate law. Two concepts that were adopted by Japanese law are the principles of capital and the concept of the partnership of promoters (‘Vorgründungsgesellschaft’). Nevertheless, other parts of German legal doctrine were not imported, like the shareholder’s duty of loyalty and the ‘Konzern duty of direction’. This partial reception has caused some discrepancies in Japanese law, that remain unresolved to some degree.

The ‘convergence’ of the two laws is shown by using the examples of how the business judgment rule was introduced into and how the derivative action developed in Japanese and German Corporate law. Lastly, one problem of this type of ‘convergence’ is explained, namely how the separate reception of US law in Japan and Germany with no exchange between the two countries hinders them from benefitting from the legal experiences gained by the other country with the same imported law.

(The Editors)