JAPAN Law and Practice Contributed by: Raku Raku, Gen Takahashi, Yoshihiro Morisato and Taku Matsumoto, Anderson Mōri & Tomotsune
ment agreements. In other words, while the employ - ees do not have a mandatory right to transfer their employment in the transaction, they can also reject the transfer of their employment. It should be also noted that employers are advised to consult with the transferred employees prior to the transaction, based on the guidelines implemented by the Ministry of Health, Labour and Welfare. Corporate Split In a corporate split transaction, where the rights and obligations of the transferred business are automati - cally transferred, the transferring entity is obliged to give certain notices to the employees involved and the labour union, and also to consult with the employees and the labour union, prior to the transaction, pursuant to the Act on the Succession to Labor Contracts upon Company Split. If an employee is primarily engaged in the transferred business but is excluded from the employees to be transferred, that employee has the right to require the company to mandatorily transfer their employment. On the other hand, if an employee is not primarily engaged in the transferred business but is included in the employees to be transferred, that employee has the right to require the company not to transfer their employment. 11. Intellectual Property and Data Protection 11.1 Intellectual Property Considerations for Approval of FDI As described in 7.1 Applicable Regulator and Pro- cess Overview (Exemptions), as one of the general restrictions for a foreign investor to be qualified for an exemption of pre-closing FDI notification and review by the government, the foreign investor shall refrain from accessing non-public information concerning the target’s technology in the designated business. Intel - lectual property can be a key part of such non-public information. If the investor is eager to access such information, the investor is not qualified for an exemp -
tion and may be subject to filing a pre-closing FDI noti - fication and review by the government as described in 7. Foreign Investment/National Security . Designated businesses subject to such review are as described in 7.1 Applicable Regulator and Process Overview . 11.2 Intellectual Property Protections A variety of intellectual property rights are recognised and well protected under Japanese law, including rights relating to patents (including a business util - ity patent), utility models, designs, trade marks, trade secrets and other interests protected under the Unfair Competition Prevention Act. It should be noted that registration is required under Japanese law to protect the relevant intellectual property right. Japan adheres to the first-to-file principle which holds that, in prin - ciple, first use does not establish one’s intellectual property right. 11.3 Data Protection and Privacy Considerations The Act on the Protection of Personal Information (APPI) is the basic legislation in Japan for the protec - tion of personal information. Furthermore, the Per - sonal Information Protection Committee (PPC) is the main authority that supervises the enforcement and application of the APPI. Most of the provisions under the APPI apply to data handling operators, even though they are entities out - side Japan, if they receive personal information when providing goods or services to individuals residing in Japan. The civil/criminal/administrative sanctions for data-handling operators in violation of the APPI are relatively moderate compared to the GDPR. An amendment to the APPI was undertaken in June 2020 and came into effect in 2022. Generally speak - ing, the 2020 amendment strengthens the regulatory framework under the APPI in various areas such as reporting obligations, penalties and extraterritorial enforcement.
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