Is the Japanese Regulation of Pseudo-Foreign Companies Compatible with the Bilateral Investment Treaty?
ニコクカン トウシ キョウテイ ニ オケル ジギョウ カツドウ ノ ジユウ ト ニホン ノ ギジ ガイコク カイシャ キセイ
小野木, 尚 ,
Onogi, Hisashiオノギ, ヒサシ
124 , 2016-09 , 大阪大学大学院国際公共政策研究科 , オオサカ ダイガク ダイガクイン コクサイ コウキョウ セイサク ケンキュウカ
Article 821 of the Japanese Companies Act regulates Pseudo-Foreign Companies by stipulating that "A Foreign Company that has its head office in Japan or whose main purpose is to conduct business in Japan may not carry out transactions continuously in Japan"(Section (1)) and "A person who has carried out transactions in violation of the provisions of the preceding paragraph shall be liable, jointly and severally with the Foreign Company, to perform obligations that have arisen from such transactions to the counterparty"(Section (2)). However, this provision could be contrary to the Freedom of Business provided in the Treaty of Friendship, Commerce and Navigation, which entitles companies founded in the contracting state to national treatment in the other. On the other hand, similar provisions can be found in the Bilateral Investment Treaties. This article will attempt to analyze the relationship between Article 821 of the Japanese Companies Act and the provision of Bilateral Investment Treaties that Japan has enacted in order to examine if the Japanese Regulation of Pseudo-Foreign Companies is compatible with the Treaty provisions.