Japan auf dem Weg vom „Insiderparadies“ zu einer effektiven Regulierung des Insiderhandels

Abstract

Comprehensive studies on the complex field of Japanese insider trading regulation in western languages are still quite rare. The article outlines the current regulatory framework from a comparative perspective.Furthermore it introduces the recent reform of Japanese insider trading regulation concerning the prohibition of disclosure of insider information and trading recommendations. By this reform, a significant regulatory gap in comparison to international insider trading regimes has been closed. Compared to German law, existing instruments of enforcement in Japanese law face similar difficulties, such as high hurdles with regard to criminal prosecution of, and civil liability for, insider trading. The introduction of an administrative monetary sanction demonstrates that – in the absence of a general system of administrative offences – distinctive enforcement measures and efficient procedures have been developed in Japanese law in order to sanction even minor violations of insider regulation.

Japanese insider trading regulations, originally closely modelled on US-capital market rules such as Rule 10 b-5, at the same time constitute an interesting example of a legal transplant which for decades remained virtually ineffective in the new context of the receiving jurisdiction. While US courts refined the rules and gradually developed them into an efficient insider trading regime, only in recent years the imported rules have become part of the Japanese law in action. As a result, Japanese capital markets have long been considered an “Insider’s paradise”. Only recently insider trading regulations gained considerable importance and attention in jurisprudenceas well as practice in Japan. This article discusses the reasons for the ineffectivity of the Japanese rules from a historical perspective. Furthermore it shows how, against a background of a changing context, Japan gradually turned the initially unsuccessful legal transplant into an effective insider trading regime of her own.