JAPAN Law and Practice Contributed by: Kunihiko Morishita, Masayuki Hashimoto and Koichi Miyamoto, Anderson Mori & Tomotsune
The Trust Business Act requires a trust company to be licensed thereunder in order to conduct a trust business. Accordingly, if a non-local ser - vice provider wants to carry out any such busi - ness in Japan or to provide the services of such business to clients resident in Japan, it must be registered under the FIEA or licensed under the Trust Business Act, as the case may be, unless it is exempted under applicable Japanese law. 2.3.3 Local Regulatory Requirements for Non- Local Managers As mentioned in 2.3.2 Requirements for Non- Local Service Provider s, registration is neces - sary in order to conduct an investment man - agement business in Japan or to provide the services of such business to clients resident in Japan, under the FIEA. Therefore, if a non-local manager intends to act as an investment trust manager of an investment trust, an asset man - agement company of an investment corporation or a general partner of an investment limited partnership, it must generally be a Registered Investment Manager under the FIEA. On the other hand, acting as a manager or invest - ment manager of a foreign investment trust or an asset management company of a foreign invest - ment corporation outside of Japan does not require registration as an investment manage - ment business under the FIEA, while acting as a general partner of offshore collective investment schemes requires the registration if it involves accepting investments from residents in Japan. 2.3.4 Regulatory Approval Process Generally speaking, the establishment process for an investment trust takes one to two months, whilst that for an investment corporation takes three to six months.
For a foreign investment trust/corporation, it usually takes one to two months to prepare and file a notification. The length of time for the creation of a collec - tive investment scheme depends on its type, its complexity and the number of investors involved, among other factors. 2.3.5 Rules Concerning Pre-Marketing of Alternative Funds Assuming that pre-marketing activities are those that are conducted towards the promotion and sale of securities but do not amount to solicita - tion thereof, they do not constitute public offer - ings or private placements under Japanese law. However, the solicitation of securities is not expressly defined in the FIEA nor in any related law or guidelines. Nonetheless, under current practice, it is generally understood to mean any act carried out with a view to inducing or pres - suring a targeted person to purchase a specific product or to agree to enter into a transaction. Accordingly, activities that are not within the parameters of such conduct would be regarded as pre-marketing activities under Japanese law. In practice, however, it is difficult to draw a clear line between the solicitation of securities and pre-marketing activities, and this should be determined on a substantive basis considering all of the facts, including the wording used, the addressee of the information provided, and the reasons for the provision of the information. In light of the above, activities such as simply answering questions posed by a potential inves - tor (at the instigation of such potential investor) would be treated as pre-marketing. On the other hand, delivering a prospectus or sending mar - keting material containing past performance
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