JAPAN Law and Practice Contributed by: Keisuke Hatano, Takeshi Nagase, Takato Fuki and Tomoaki Katayama, Anderson Mori & Tomotsune
• the applicant’s financial documents; • documents regarding the establishment of an inter- nal system for ensuring proper and secure provi- sion of CAES by the applicant; • an organisational chart in respect of the applicant; • the applicant’s internal rules; and • a form of the contract to be entered into with users. During the registration process, the JFSA will request that applicants complete a checklist consisting of more than 400 questions to verify that they have established internal systems for the proper and secure provision of CAES. In addition, the JFSA will separately prepare a detailed progress chart for purposes of verifying the checking process. The registration process essentially serves as a due diligence exercise by the JFSA to determine whether to approve an applicant’s registration. To make progress in the registration process, it is nec- essary for an applicant to add a number of executives and employees with practical experience in Japa- nese financial institutions to its organisational chart, to develop various internal regulations equivalent to those of financial institutions, to invest in systems to ensure that the services provided are appropriate and to go through checks by the JFSA. 3.3 Change of Control CAESPs and EPIESPs must promptly report any changes in their major shareholders to the JFSA. A major shareholder is defined as a shareholder that holds 10% or more of the voting rights. Although prior approval of a major shareholder is not required, it is common practice to notify the regulatory authorities of a proposed new major shareholder in advance when- ever possible. 3.4 Passporting There is no regime in Japan that allows financial licences to be passported into other jurisdictions.
pertaining to CAES with residents in Japan unless it is registered as a CAESP and is further prohibited from soliciting any such transaction. In this regard, acts such as posting advertisements concerning transac- tions pertaining to CAES on any websites, etc (the “Advertisement”), by a foreign entity are, in principle, deemed to constitute solicitation of residents in Japan. However, such Advertisement shall not be deemed to constitute solicitation of persons in Japan as long as reasonable measures are taken to prevent the Adver- tisement from leading to transactions pertaining to CAES with persons in Japan, including, among oth- ers, the following measures: Disclaimer A foreign entity must include a disclaimer in each advertisement clearly stating that it does not provide its services to customers in Japan. The disclaimer must satisfy the following requirements: • no additional use of any computer or device (other than for viewing the Advertisement) is required for reading and understanding the disclaimer; and • the disclaimer must be in a language reasonably deemed readable and understandable by those in Japan accessing the website. Measures to Prevent Transactions with Customers in Japan A foreign entity must take the following measures to prevent transactions pertaining to CAES with custom- ers in Japan: • at the time of a transaction, the foreign entity must implement a procedure to confirm the customer’s country/jurisdiction of residence by requiring the customer to submit his/her address, mailing address, e-mail address, payment method and other information; • in cases where there are reasonable grounds to believe that a transaction pertaining to CAES has been clearly concluded with customers in Japan, the foreign entity must take care not to accept any orders from such customers in Japan; and • the foreign entity must be attentive in ensuring that it does not conduct any act of inducing customers in Japan to engage in transactions pertaining to
4. Cross-Border Services 4.1 Marketing
As described in 3.1 Licensing Requirements , a for - eign entity is not permitted to conduct any transaction
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