Bribery & Corruption

First Edition

Contributing Editors: Jonathan Pickworth & Deborah Williams Published by Global Legal Group CONTENTS

Preface Jonathan Pickworth & Deborah Williams, Dechert LLP

Albania Silva Velaj & Sabina Lalaj, Boga & Associates 1

Argentina Marcelo den Toom & Mercedes de Artaza, M. & M. Bomchil 7

Australia Justin McDonnell, David Eliakim & Natalie Caton, King & Wood Mallesons 15

Bangladesh Dr. Kamal Hossain, Dr. Kamal Hossain and Associates 25

Belgium Joost Everaert, Nanyi Kaluma & Anthony Verhaegen, Allen & Overy LLP 30

Brazil Maurício Zanoide de Moraes, Caroline Braun & Daniel Diez Castilho,

Zanoide de Moraes, Peresi & Braun Advogados Associados 36

Canada Mark Morrison, Paul Schabas & Michael Dixon, Blake, Cassels & Graydon LLP 44

Cayman Islands Martin Livingston & Brett Basdeo, Maples and Calder 52

China David Tiang, King & Wood Mallesons 60

Czech Republic Helena Hailichová & Eva Haisová,

Johnson Šťastný Kramařík, advokátní kancelář, s.r.o. 70

France Julia Minkowski & Romain Fournier, Temime & Associés 78

Germany Sascha Kuhn, Simmons & Simmons LLP 87

Hong Kong Kyle Wombolt, Robert Hunt & Janice Tsang, Herbert Smith Freehills 95

India Siddharth Thacker, Mulla & Mulla & Craigie Blunt & Caroe 105

Indonesia Kyle Wombolt, Charles Ball & Narendra Adiyasa,

Hiswara Bunjamin & Tandjung (HBT) in association with Herbert Smith Freehills 113

Ireland Megan Hooper & Heather Mahon, McCann FitzGerald 121

Italy Roberta Guaineri & Francesca Federici, Moro Visconti de Castiglione Guaineri 131

Japan Daiske Yoshida & Junyeon Park, Latham & Watkins 142

Mexico Edgar M. Anaya & Paula Nava González, Anaya Abogados Asociados, S.C. 151

Singapore Ing Loong Yang & Tina Wang, Latham & Watkins 160

South Africa Dave Loxton, Werksmans Attorneys 168

Spain Esteban Astarloa & Patricia Leandro, Uría Menéndez Abogados 176

Switzerland Grégoire Mangeat & Fanny Margairaz, Eversheds Ltd 186

Thailand Kyle Wombolt, Chinnawat Thongpakdee & Michelle Yu,

Herbert Smith Freehills (Thailand) Ltd 197

Turkey Gönenç Gürkaynak & Ç. Olgu Kama, ELIG, Attorneys-at-Law 206

United Kingdom Jonathan Pickworth & Deborah Williams, Dechert LLP 211

USA Cheryl A. Krause & Elisa T. Wiygul, Dechert LLP 220 Japan

Daiske Yoshida & Junyeon Park Latham & Watkins

Background Japan is widely perceived to be one of the least corrupt countries in the world. Transparency International ranked Japan as the 17th least corrupt country out of 176 in the most recent Corruption Perceptions Index – third highest in Asia – and Japanese companies as the fourth least likely to pay bribes overseas.1 Global Integrity reported Japan’s overall anti-corruption performance as “solid”,2 and the U.S. State Department has characterised the direct exchange of cash for favours from Japanese government offi cials as “extremely rare”.3 However, corruption was a prevalent feature of Japan’s postwar economic boom, which was built on a close-knit alliance known as the “iron triangle” between Japanese businesses, politicians of the ruling Liberal Democratic Party (“LDP”), and elite bureaucrats.4 This close coordination guided Japan to its growth as the world’s second-largest economy, but it also created a culture of secret, backroom dealings which, when exposed, shocked the public. Some of the most notorious scandals of that era include: the Lockheed case (1976), which led to the conviction of former Prime Minister Kakuei Tanaka (and was partly responsible for the creation of the U.S. Foreign Corrupt Practices Act); the Recruit case (1989), which brought down the administration of Prime Minister Noboru Takeshita; the Zenecon (general contractors) cases (1993-1994), which resulted in several prefectural governors along with dozens of others being convicted, and one governor committing suicide; and the Bank of Japan / Ministry of Finance cases (1997-1998), which led to the arrests, resignations and suicides of several high-ranking fi nance offi cials.5 The type of conduct in these cases included fi rms seeking to win lucrative contracts through massive cash payments (Lockheed, Zenecon); fi rms offering highly lucrative insider stock information to win infl uence (Recruit); and offi cials receiving lavish entertainment, sometimes of a sexual nature, in exchange for favours (BoJ/MoF).6 Japan’s economic downturn through the 1990s soured the public’s patience for such behaviour, and increasingly became the focus of blame for the nation’s woes.7 In particular, one type of entertainment – “no-pan shabushabu” (referring to an establishment where a type of hot pot was served by women wearing no underwear) – became synonymous in the public imagination with high-level corruption.8 In response, the Japanese government enacted various reforms, including requiring disclosure of politicians’ assets,9 bringing more transparency to political contributions,10 and imposing stricter ethical rules on public offi cials.11 In addition, especially over the past 10 years, Japanese companies have begun instituting codes of conduct that prohibit giving or receiving inappropriate payments, gifts or entertainment, not only to government offi cials, but in business transactions generally.12 Today, the websites of nearly every listed Japanese company trumpet their commitment to compliance and corporate social responsibility. As a result, while some issues remain as discussed in the ‘Current issues’ section below, bribery is now widely understood in Japan to be impermissible, and corruption is no longer as prevalent a feature of the Japanese political and business landscape as it was 20 years ago. In October 2012, the LDP-led coalition won back the lower house of the National Diet and the upper house in July 2013, effectively bringing Japan back to one-party dominance. It remains to be seen whether the combination of a reinvigorated LDP, chastened bureaucrats, and long-suffering fi rms

GLI - Bribery & Corruption First Edition 142 www.globallegalinsights.com © Published and reproduced with kind permission by Global Legal Group Ltd, London Latham & Watkins Japan eagerly backing the LDP’s pro-business policies, will bring back the “iron triangle” and the ways of the past, or whether the reforms of the past 20 years have ﬁ rmly taken root.

Legal overview Bribery of Japanese public offi cials Article 197 of Japan’s Penal Code13 prohibits a public offi cial, defi ned as “a national or local government offi cial, a member of an assembly or committee, or other employees engaged in the performance of public duties in accordance with laws and regulations”,14 from accepting, soliciting or promising to accept a bribe in connection with his or her duties.15 It also prohibits a person who is to be appointed as a public offi cial to do likewise, in the event that he or she is appointed.16 Furthermore, it is an offence to give, offer or promise to give a bribe to a public offi cial or a person to be appointed a public offi cial.17 Legal persons (i.e., fi rms and organisations) are not liable for bribery under the Penal Code. Non-Japanese nationals are liable for bribery under the Penal Code only if the crime is committed within Japan.18 Japanese public offi cials are liable for accepting bribes outside Japan.19 The punishment for acceptance of a bribe by a public offi cial (or a person to be appointed a public offi cial) is imprisonment with work for not more than 5 years,20 plus confi scation of the bribe or its monetary value.21 Where a public offi cial agrees to perform an act in response to a request, the sanction is imprisonment with work for not more than 7 years.22 Further, where such public offi cial consequentially acts illegally or refrains from acting in the exercise of his or her duty, the sanction is imprisonment with work for a period within a range of one to 20 years.23 The sanction for offering or promising to give a bribe to a public offi cial is imprisonment with work for not more than 3 years, or a fi ne of not more than 2.5 million yen.24 As part of the reforms of the late 1990s, the Japanese government established the National Public Service Ethics Board, which provides a website with the ethics code applicable to bureaucrats, as well as detailed guidelines.25 “Deemed public offi cials” Japan privatised many state-owned enterprises during the 1980s, including Japan Tobacco, Inc. (1985), Nippon Telegraph & Telephone Corporation (1985), and the various railway companies constituting the JR Group (1987). Japan Post was also broken up and privatised in 2007. However, under various laws specifi c to those former SOEs, their employees have the status of “deemed public offi cials” (minashi koumuin), and it is expressly forbidden to give bribes to such persons, or for such persons to accept bribes.26 The same is true for employees of enterprises that are still predominantly state-owned, such as: the national broadcaster NHK and the Narita International Airport Corporation; national universities, including affi liated research facilities and hospitals; international organisations, such as the International Criminal Court; and private fi rms that perform public functions, such as driving schools.27 The penalties for bribery of “deemed public offi cials” are largely identical to those for bribery of public offi cials. Bribery of foreign public offi cials Japan has been a member of the Organisation for Economic Co-operation and Development (“OECD”) since 1964. It implemented the 1997 OECD Anti-Bribery Convention in 1998, by amending the Unfair Competition Prevention Law (“UCPL”)28 to add Article 18, which criminalised bribery of foreign public offi cials.29 Additional law was enacted in 2004 to broaden the jurisdiction of Article 18 to cover conduct by Japanese nationals while abroad.30 Also, the Tax Law was amended in 2006 to prohibit the deduction as business expenses of bribes paid abroad.31 Unlike the Penal Code, the UCPL expressly imposes criminal liability on legal persons (fi rms and organisations).32 Article 18 was intended to track the language of the Anti-Bribery Convention, and provides as follows: No person shall give, offer or promise any pecuniary or any other advantage, to a foreign public offi cial, in order that the offi cial act or refrain from acting in relation to the performance of offi cial duties, or in order that the offi cial, using his position, exert upon another foreign offi cial so as to cause him to act or refrain from acting in relation to the performance of offi cial duties, in order to obtain or retain improper business advantage in the conduct of international business.33

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Originally, the penalty for bribery of a foreign public offi cial was imprisonment with work for not more than 3 years or a fi ne of not more than 3 million yen, or both, and the statute of limitations for natural persons had been 3 years; but in response to the OECD’s recommendations, the penalties were increased to 5 years and 5 million yen, and the limitations period was also extended to 5 years.34 In addition, if an individual bribed a foreign offi cial in connection with the business of a legal person, such legal person may be subject to a fi ne of not more than 300 million yen.35 The law does not provide for confi scation of the proceeds of bribing a foreign public offi cial. The Ministry of Economy, Trade and Industry (“METI”) administers the UCPL, including Article 18, but prosecutions under Article 18 are handled by the Public Prosecutors Offi ce. METI’s website includes a section dedicated to the prevention of bribery of foreign offi cials,36 and provides detailed “Guidelines to Prevent Bribery of Foreign Public Offi cials” in Japanese and English that explains the law, as well as what companies can do to prevent bribery.37 Facilitation payments The original METI Guidelines issued in 2004 indicated that the UCPL does not explicitly exempt “small facilitation payments”, but that such payments would not be a criminal offence under the OECD Anti-Bribery Convention. The OECD criticised this (and METI’s attempts to explain its interpretation) as confusing,38 and METI updated the Guidelines in September 2010 to clarify that facilitation payments would be illegal under Japanese law if their purpose was “to obtain or retain improper business advantage in the conduct of international business”.39 Commercial bribery At least theoretically, commercial bribery is prohibited under Article 967 of the Companies Act.40 Under that statute, if certain specifi ed types of corporate executive or employee, or an accounting auditor, accepts, solicits or promises to accept property benefi ts in connection with such person’s duties, in response to a wrongful request, it is punishable by imprisonment with work of up to 5 years or a fi ne of up to 5 million yen.41 In addition, the bribe or its monetary value may be subject to confi scation.42 Giving, offering or promising to give a commercial bribe is punishable by imprisonment with work of up to 3 years or a fi ne of up to 3 million yen.43 This statute is analogous to Article 197 of the Penal Code, and the analysis of what constitutes a bribe is identical.44 However, this statute has been unused, with prosecutors instead preferring to go after managers who accept bribes based on “aggravated breach of trust” against the company, under Article 960 of the Companies Act.45 There is no corporate liability for commercial bribery under the Companies Act.

Current issues Kansei dango Despite the reforms discussed above, one type of corruption that remains deeply entrenched in Japan is government-led bid-rigging on public projects (kansei dango) – a type of bid-rigging scheme in which a public offi cial acts as an organiser to determine which company will win.46 Typically, the offi cial is a representative of the government entity that issued the bid request, who wishes to dole out favours to fi rms (especially in construction) which are major sources of political funds, or are potential sources of work after the offi cial leaves government. This type of conduct had been long accepted, but started to be prosecuted in the 1990s as part of the general trend towards anti-corruption. As the widespread nature of the practice became apparent, legal reforms were instituted in the early 2000s, including the passage of a law specifi cally prohibiting kansei dango47 and amendments to the Anti-Monopoly Law.48 But a fl ood of major bid-rigging incidents in 2005 and 2006, including those resulting in the arrests of three prefectural governors,49 resulted in an accelerated passage in 2006 of amendments to the existing law against kansei dango.50 Additionally, in 2006, shareholders began suing corporate executives on the theory that their participation in the bid-rigging schemes damaged the company.51 Despite these changes, new kansei dango cases continue to emerge. In 2010, it was reported that Air Self-Defense Force offi cials were involved in rigging procurement contracts.52 In 2012, Ground Self-Defense Forces employees were found to have improperly provided information to a fi rm about

GLI - Bribery & Corruption First Edition 144 www.globallegalinsights.com © Published and reproduced with kind permission by Global Legal Group Ltd, London Latham & Watkins Japan a development bid for the next-generation helicopter.53 In June 2013, Kagoshima police launched an investigation of a prefectural offi cial in connection with a rigged hospital construction bid.54 Further, the Japan Fair Trade Commission (“JFTC”) found in three separate cases (2007, 2009 and 2012) that offi cials of Japan’s Ministry of Land, Infrastructure and Transportation (“MLIT”) were involved in bid-rigging, requiring the JFTC to demand improvements by the MLIT.55 Amakudari A related issue is amakudari, which literally means “descent from heaven”, and refers to the practice of government offi cials retiring into lucrative positions in businesses they used to regulate.56 This practice has been identifi ed as a signifi cant cause for kansei dango, because bidders are populated by former offi cials of agencies requesting the bids, or provide future job opportunities for such offi cials.57 It has been reported that, for example, 68 bureaucrats retired from METI into top positions at Japan’s 12 electricity suppliers, which METI oversees,58 and that between 2007 and 2009, 1,757 bureaucrats got jobs at organisations and fi rms that received subsidies or government contracts during 2008.59 In the wake of the kansei dango scandals of the mid-2000s, in which collusion was found to have occurred between current and former government offi cials, the National Public Service Act (“NPSA”)60 was amended in 2007.61 The amendment prevented ministries from fi nding post- retirement jobs for their offi cials, limited job-hunting by offi cials while still in government, and prohibited former offi cials from recruiting activities.62 However, the reform has not been particularly effective, with many offi cials still being hired by fi rms and organisations they used to oversee. During the administration of the Democratic Party of Japan (“DPJ”) from 2009 to 2012, further attempts to amend the NPSA made no headway. In July 2013, the “Headquarters for Promotion of Reform to the National Public Service System”, which was founded in 2008 to implement the 2007 amendment, formally disbanded after its 5-year term expired; in fact, it was virtually non-operational during the DPJ years. The LDP included the eradication of amakudari as one of its campaign promises, but has not yet pressed for new legislation on this issue. Low enforcement of UCPL Article 18 In the 15 years since its enactment in 1998, UCPL Article 18 has been enforced only twice:63 • In March 2007, two Japanese individuals were found guilty of bribing two senior Filipino offi cials with about 800,000 yen (approximately US$8,000) worth of golf clubs and other gifts, in an effort to win a government contract. They failed to win, but the bribes were reported by a whistleblower. The individuals were fi ned 500,000 yen (approximately US$5,000) and 200,000 yen (approximately US$2,000), respectively. It appears that the company they worked for (the Philippines subsidiary of a Japanese company) was not prosecuted. • In January and March 2009, four Japanese individuals were found guilty of bribing a Vietnamese offi cial in connection with a highway construction project that was partly fi nanced by offi cial development assistance (“ODA”) from Japan. The value of the contract was approximately US$24m, and the total amount given to the offi cial was about US$2.434m, but the court specifi ed the amount of the bribes at US$820,000, partly because the statute of limitations had run on some of the earlier conduct. The four individuals were sentenced to imprisonment for 2.5 years, 2 years, 1.5 years, and 20 months, respectively, and all of their sentences were suspended for 3 years. The company they worked for was fi ned 70 million yen (approximately US$700,000), and also temporarily delisted by the Japan Bank for International Cooperation and the Japan International Cooperation Agency. The OECD has criticised this low level of enforcement activity, issuing a news release in January 2012, both in English and Japanese, stating: “Japan is still not actively detecting and investigating foreign bribery cases and, as a result, the enforcement of Japan’s anti-bribery law remains low.”64 However, there has not been any news of additional prosecutions under UCPL Article 18, and it remains to be seen whether the Japanese government will be able to report signifi cant progress by the time that its next written report to the OECD is due in December 2013. The greatest challenge for increasing enforcement of this law is creating incentives for companies to self-report, or for whistleblowers to come forward. The type of whistleblower award programme

GLI - Bribery & Corruption First Edition 145 www.globallegalinsights.com © Published and reproduced with kind permission by Global Legal Group Ltd, London Latham & Watkins Japan instituted by the U.S. Securities and Exchange Commission will be diffi cult to implement in Japan, considering the smaller potential recovery available; the amount of the potential reward is unlikely to offset the downsides of reporting on one’s employer. Instituting a leniency-type system to reduce potential fi nes in exchange for cooperation may encourage some companies to self-report, but the maximum corporate exposure of 300 million yen (appoximately US$3 million) may not be large enough to justify the trouble. Also, to the extent that the two cases so far provide any guidance, they seem to indicate that courts will impose a fi ne that is roughly equivalent to the amount of the bribe. An interesting point of comparison may be the JFTC’s cartel leniency programme, which is modelled on similar programmes in the U.S. and the EU. When the programme was fi rst proposed, many doubted that it would succeed in a group-oriented culture like Japan. But to the contrary, Japanese fi rms immediately began fi ling applications. Between 2006 and 2012, there have been a total of 725 fi lings, resulting in 86 publicised actions against a total of 202 fi rms.65 Its success indicates that measures initially viewed as unlikely to succeed in Japan may still be worth implementing.

Daiske Yoshida is a partner and Junyeon Park is an associate in the Litigation Department of Latham & Watkins, Tokyo Ofﬁ ce. This article reﬂ ects the views of the authors only.

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Endnotes 1. Transparency International, Corruption by Country: Japan (http://www.transparency.org/ country#JPN). 2. Global Integrity Report, Japan: 2008 (http://report.globalintegrity.org/Japan/2008). 3. U.S. Department of State, Bureau of Economic and Business Affairs, 2012 Investment Climate Statement – Japan (June 2012) (http://www.state.gov/e/eb/rls/othr/ics/2012/191172.htm). 4. See Takehiko Sone, “Sei-kan-gyo no yuchaku wo meguru kozo oshoku: Nyusatsu dango ni okeru oshoku jiken wo chushin to shite” (“Structural Corruption Concerning the Collusion of Politicians, Bureaucrats and Businesses: Focusing on Corruption Cases Involving Bid-Rigging”), Kikan Kigyo to Houseizou (Quarterly Review of Corporation Law and Society) vol. 3 (Nov. 2004), 149, 151 (http://www.win-cls.sakura.ne.jp/pdf/3/14.pdf) (in Japanese); see also, Velisarios Kattoulas, “Corruption Scandals Rack Tokyo’s ‘Iron Triangle’: Struggle for Power in Japan,” New York Times, Dec. 7, 1996 (http://www.nytimes.com/1996/12/07/news/07iht-scandal.t.html); David Holley, “Bank of Japan Exec Arrested in Deepening Scandal,” Los Angeles Times, Mar. 12, 1998 (http://articles.latimes.com/1998/mar/12/business/ﬁ -27998). 5. Sone, supra, at 149 fn. 5, 6. 6. See Andrew Horvat, “MoF fries in ‘no pan shabu shabu’,” Euromoney, Mar. 1998 (http://www. euromoney.com/Article/1005671/MoF-fries-in-no-pan-shabu-shabu.html). 7. See Alan C. Miller, “Japan’s Money in the Mists,” Los Angeles Times, Nov. 24, 1998; “Japan: Away with the Rogues,” The Economist, Sep. 21, 2000. 8. See Horvat, supra. 9. Act No. 100 of 1992. 10. Act No. 5 of 1994, Act No. 106 of 1994. 11. Act No. 129 of 1999. 12. See, e.g.: Honda Conduct Guideline (http://world.honda.com/conductguideline/); Mitsui & Co., Ltd. Business Conduct Guidelines for Employees and Ofﬁ cers (http://www.mitsui.com/jp/ en/company/governance/disclosure/); and Toshiba Group Standards of Conduct (http://www. toshiba.co.jp/csr/en/policy/soc.htm). 13. Act No. 45 of 1907. 14. Penal Code, art. 7. Unless otherwise noted, translations of Japanese laws in this article are from the “Japan Law Translation” website of the Ministry of Justice (http://www.japaneselawtranslation. go.jp/). 15. Id. art. 197. 16. Id. art. 197-2. 17. Id. art. 198. 18. Id. arts. 1(1), 3-2.

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19. Id. art. 4(iii). 20. Id. art. 197, 197(2). 21. Id. art. 197-5. 22. Id. art. 197. 23. Id. art. 197-3(1). 24. Id. art. 198. 25. http://www.jinji.go.jp/rinri/eng/index.htm (English website). 26. See Act No. 69 of 1984 (Japan Tobacco); Act No. 85 of 1984 (NTT); Act No. 88 of 1986 (Japan Railways); and Act No. 98 of 2005 (Japan Post). 27. See Act No. 132 of 1950 (NHK); Act No. 124 of 2003 (Narita Airport); Act No. 112 of 2003 (national universities); Act No. 37 of 2007 (International Criminal Court); and Act No. 185 of 1951 (driving schools). This list of “deemed public offi cials” is not exhaustive. 28. Act No. 47 of 1993. 29. Act No. 111 of 1998. 30. Act No. 51 of 2004; see also Penal Code, art. 3 and UCPL art. 21(6). 31. Act No. 10 of 2006, amending Article 45-2 of the Tax Law. 32. UCPL art. 22(1). 33. UCPL art. 18(1); translation from METI, Guidelines to Prevent Bribery of Foreign Public Offi cials (rev. Sep. 21, 2010) at 14 (http://www.meti.go.jp/policy/external_economy/zouwai/ pdf/Guidelines%20to%20Prevent%20Bribery%20of%20Foreign%20Public%20Offi cials.pdf) (“Guidelines”). 34. UCPL art. 21(2)(vii); OECD Working Group on Bribery, Japan: Phase 2bis Report on the Application of the Convention on Combating Bribery of Foreign Public Offi cials in International Business Transactions and the 1997 Recommendation on Combating Bribery in International Business Transactions (June 2006), at 11 (http://www.oecd.org/daf/anti-bribery/anti- briberyconvention/37018673.pdf). 35. Id. art. 22(1). 36. http://www.meti.go.jp/policy/external_economy/zouwai/index.html (in Japanese). 37. http://www.meti.go.jp/policy/external_economy/zouwai/shishin.html (in Japanese). For the link to the Guidelines in English, see endnote 33 supra. 38. OECD Working Group on Bribery, Japan: Phase 2 Report on the Application of the Convention on Combating Bribery of Foreign Public Offi cials in International Business Transactions and the 1997 Recommendation on Combating Bribery in International Business Transactions (March 2005), at 40-41 (http://www.oecd.org/daf/anti-bribery/anti-briberyconvention/34554382.pdf). 39. METI press release, “Revision of ‘Guidelines to Prevent Bribery of Foreign Public Offi cials’,” Sep. 21, 2010 (http://www.meti.go.jp/english/press/data/20100921_01.html); Guidelines, supra, at 16. 40. Act. No. 86 of 2005. 41. Id. art 967(1). 42. Id. art. 969. 43. Id. art. 967(2). 44. Seiichi Ochiai, ed., Kaishaho Kommentar (Companies Act Commentary) (2011), vol. 21 § 967, at 125 (in Japanese). 45. See Masaki Nagamine, “Fusei no seitaku: Jitsu wa minkan kigyo nimo aru ‘shuwaizai’ towa” (“Illegal solicitation: ‘Bribery’ also exists in the private sector”), President, Mar. 15, 2010 (http:// president.jp/articles/-/1658) (in Japanese). Companies Act Article 960 is a broader statute with a greater potential penalty (10 years’ imprisonment or 10 million yen). 46. See Sone, supra; Miyuki Takazawa, “Kansei dango no omo na jirei to boushi taisaku” (“Major cases and preventive measures for kansei dango”), National Diet Library Issue Brief, No. 543 (Jun. 13, 2006) (http://www.ndl.go.jp/jp/data/publication/issue/0543.pdf) (in Japanese); Reiji Yoshida, “How Japanese tax-payers’ money is lost in bid-rigging,” The Japan Times, Jul. 3, 2007 (http://www.japantimes.co.jp/news/2007/07/03/reference/how-japanese-tax-payers-money-is- lost-in-bid-rigging/#.UhWX5htcXis). 47. Act No. 101 of 2002. 48. Act No. 35 of 2005. 49. See Mariko Sanchanta, “Japan bid-rigging scandal widens,” Financial Times, Jun. 29, 2005 (http:// www.ft.com/intl/cms/s/0/d49230b0-e88f-11d9-87ea-00000e2511c8.html#axzz1N3kxCebs) (Japan Highways case); “Two held over Narita bid-rigging,” The Japan Times, Dec. 6, 2005

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(http://www.japantimes.co.jp/news/2005/12/06/news/two-held-over-narita-bid-rigging/#. UhWO6BtcXis) (Narita Airport case); “Governor of Fukushima steps down over brother’s bid- rigging arrest,” The Japan Times, Sep. 28, 2006 (http://www.japantimes.co.jp/news/2006/09/28/ national/governor-of-fukushima-steps-down-over-brothers-bid-rigging-arrest/#.UhWTTBtcXis) (Fukushima Prefecture case); “Builder allegedly governor’s payoff conduit,” The Japan Times, Nov. 17, 2006 (http://www.japantimes.co.jp/news/2006/11/17/national/builder-allegedly- governors-payoff-conduit/#.UhWU1xtcXis) (Wakayama Prefecture case); “Ex-governor arrested over bidding scandal,” The Japan Times, Dec. 9, 2006 (http://www.japantimes. co.jp/news/2006/12/09/national/ex-governor-arrested-over-bidding-scandal/#.UhWSjxtcXis) (Miyazaki Prefecture case). 50. Act No. 110 of 2006 (amending Act No. 101 of 2002). 51. See Steel Bridge Cartel Shareholder Litigations (2006). 52. “ASDF chief sacked, 49 disciplined for Chiba supply depot bid-rigging,” The Japan Times, Dec. 16, 2010 (http://www.japantimes.co.jp/news/2010/12/16/national/asdf-chief-sacked-49- disciplined-for-chiba-supply-depot-bid-rigging/#.UhYLRBtcXis). 53. “Kawaju wo shimei teishi e: Boueicho, heli dangou jiken uke” (“Kawasaki Heavy delisted by MOD, based on helicopter bid-rigging case”), Nihon Keizai Shimbun, July 29, 2013 (http://www. nikkei.com/article/DGXNASDG2903U_Z20C13A7CR8000/) (in Japanese); “Kawaju kabunushi ga yakuin teiso seikyu: Rikuji heli dango, 46 oku songai” (“Kawasaki Heavy shareholders seek to sue management; GSDF helicopter bid-rigging, 4.6 billion in damages”), Kobe Shimbun, July 23, 2013 (http://www.kobe-np.co.jp/news/shakai/201307/0006185433.shtml) (in Japanese). 54. “Kagoshima kenritsu byoin to shicho sosaku; Amami Oshima kansei dango jiken” (“Kagoshima prefecture hospital and government offi ce investigated; Amami Oshima bid-rigging case”), MSN/Sankei News, June 9, 2013 (http://sankei.jp.msn.com/affairs/news/130609/ crm13060920030003-n1.htm) (in Japanese). 55. “Kochi de kansei dango nintei: Kotorii, Kokukosho ni kaizen sochi youkyu” (“Government-led bid-rigging found in Kochi: JFTC demands improvements by MLIT”), Nihon Keizai Shimbun, Oct. 17, 2012 (http://www.nikkei.com/article/DGXNASDG1703Y_X11C12A0CR8000/) (in Japanese). 56. See U.S. Department of State, supra; Hiroko Nakata, “‘Amakudari’ too entrenched to curb?” The Japan Times, May 29, 2007 (http://www.japantimes.co.jp/news/2007/05/29/reference/ amakudari-too-entrenched-to-curb/#.UhWczxtcXis). 57. See “1,757 got jobs via ‘amakudari’ from ’07 to ’09,” The Japan Times, Aug. 24, 2010 (http:// www.japantimes.co.jp/news/2010/08/24/national/1757-got-jobs-via-amakudari-from-07- to-09/#.UhWk2BtcXis); Takazawa, supra. 58. “Utilities got 68 ex-bureaucrats via ‘amakudari’,” The Japan Times, May 4, 2011 (http://www. japantimes.co.jp/news/2011/05/04/news/utilities-got-68-ex-bureaucrats-via-amakudari/#. UhWjsRtcXit). 59. See fn. 57, supra. 60. Act No. 120 of 1947. 61. Act No. 108 of 2007. 62. Id.; see also Kimio Kobayashi, “Kokka komuin no amakudari konzetsu ni muketa kinnnen no torikumi” (“Recent Efforts Towards Eliminating ‘Amakudari’ by Government Offi cials”), National Diet Library – Reference (August 2012), 27, 32 (http://dl.ndl.go.jp/view/download/ digidepo_3525594_po_073902.pdf?contentNo=1) (in Japanese). 63. See Guidelines, supra, at 28; OECD Working Group on Bribery, Phase 3 Report on Implementing the OECD Anti-Bribery Convention in Japan (Dec. 2011), at 10-11 (http://www.oecd.org/daf/ anti-bribery/anti-briberyconvention/Japanphase3reportEN.pdf). There have been reports of other investigations that were ultimately dropped. See Ministry of Foreign Affairs, “Tai Mongol ODA wo meguru Mitsui Bussan ni yoru zowai yougi to OECD gaikoku koumuin zouwai boushi jouyaku” (“Alleged bribery by Mitsui Bussan relating to ODA to Monglia, and the OECD Anti-Bribery Convention”) (Sept. 2002) (http://www.mofa.go.jp/mofaj/ gaiko/oecd/mongolia.html) (in Japanese); “Indonesia kokan settai yougi, Sumisho sha-in wo fukiso: Tokyo chiken” (“Alleged entertaiment of high-ranking Indonesia offi cial: Tokyo district prosecutor to not indict Sumisho employees”), Asahi Shimbun, July 3, 2012 (http://www.asahi. com/20120703/pages/national.html) (in Japanese). 64. OECD news release, “Serious Concerns Remain over Japan’s Enforcement of Foreign Bribery Law, Despite Some Positive Developments” (Jan. 12, 2012) (http://www.oecd.org/daf/anti-

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bribery/anti-briberyconvention/seriousconcernsremainoverjapansenforcementofforeignbribery lawdespitesomepositivedevelopments.htm). 65. JFTC news release, “Heisei 24 nendo ni okeru dokusen kinshiho ihan jiken no shori joukyou ni tsuite” (“Regarding the Enforcement of the Anti-Monopoly Law in Fiscal Year 2012”), May 29, 2013 (http://www.jftc.go.jp/houdou/pressrelease/h25/may/130529.html) (in Japanese).

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