Answer ... Yes, notification is mandatory.
Answer ... Yes, there is a pre-notification consultation procedure through which the parties can discuss the planned transaction with the Japan Fair Trade Commission (JFTC) informally and in confidence. In complex cases which may involve substantive issues, it is advisable for the parties to utilise this pre-notification consultation procedure to avoid unexpected delays in the JFTC’s review.
Answer ... If the transaction is a share acquisition or acquisition of a business, the acquirer is responsible for filing the notification. If the transaction is a merger, a joint share transfer or a company split, all parties are jointly responsible for filing the notification.
Answer ... No, the JFTC does not charge any filing fees.
Answer ... The information to be provided in the notification includes the following:
- the purpose, reasons, details and method of the transaction;
- an outline of the notifying companies;
- an outline of the corporate group to which each notifying company belongs;
- an outline of the target or the company to be established by the transaction; and
- the position of the notifying companies and the target or the company to be established by the transaction in the relevant market, including the competing relationship or transactional relationship between the notifying companies and the target or the company to be established by the transaction.
The supporting documents to be provided include the following:
- the articles of incorporation of the notifying companies;
- a copy of the definitive agreement for the transaction or the document which verifies the decision of the notifying company in relation to the transaction (a draft of the definitive agreement is permissible);
- the most recent business reports and financial statement of the notifying companies;
- the list of shareholders of the notifying companies;
- a copy of the minutes of the shareholders’ meeting or partners’ meeting at which the transaction was approved, where such approval is required;
- a securities report prepared by the ultimate parent company of the corporate group to which the notifying companies belong or an equivalent; and
- powers of attorney issued by the notifying companies.
Answer ... No, there are no deadlines for filing the notification. However, the notification should be filed in the 30 calendar days before closing of the transaction, for the following reasons.
Under the Act on Prohibition of Private Monopolisation and Maintenance of Fair Trade, no company that gives notification may close a transaction until a 30-day waiting period from the date of acceptance of the notification has expired. However, upon the notifying party’s request and where the JFTC finds this necessary, it may shorten the relevant period accordingly.
Answer ... Yes, a transaction can be notified prior to signing a definitive agreement, provided that a draft of the definitive agreement is submitted together at the time of notification and a copy of the signed definitive agreement is submitted promptly after signing.
Answer ... Yes. As mentioned in question 3.6, no company that has given notification may close the transaction until a 30-day waiting period or a shortened period from the date of acceptance of notification has expired. Therefore, the parties must delay closing of the transaction until clearance is granted.
Answer ... The notification itself will not be publicly announced by the JFTC.
Once the JFTC has cleared the transaction, and unless this would cause any inconvenience, it will publicly announce:
- the date of notification;
- the names of the relevant parties;
- the main business of the relevant parties;
- the type of business combination;
- the relevant threshold of share transfer (if applicable);
- the date of clearance; and
- whether the waiting period has been shortened.
The JFTC also annually publishes the results of any major business combination cases. In doing so, it will consult with the relevant parties regarding the content of such publication, so that commercially sensitive information is deleted accordingly.
At the beginning of the Phase 2 review, the JFTC will publicly announce that it has asked the relevant parties to provide further reports and will accept opinions from third parties. In this announcement, the JFTC will not publish commercially sensitive information.