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Do Toyota's woes indicate, as some have argued, the last nail in the coffin of the mass production based export model that had served the Japanese economy so well at least through to the 1980s? In other words, does Japan need to wind down even high-tech goods manufacturing and further expand its services sector? Are consumer product safety expectations both within Japan and abroad just too demanding nowadays? Or is Toyota similar to Mitsubishi Motors, an aberrant company which for years conducted clandestine recalls - taking consumers and regulators for a ride - until an employee blew the whistle in 2000 ... almost destroying the Mitsubishi brand name? And does the Toyota saga suggest that Japan's gradual transformation in corporate governance is, well, TOO gradual?

For one view on that last point, and to encourage public comments on any of these questions or others that have been raised by Toyota's saga, I am pleased to reproduce (with permission) the following posting by an American ANJeL member on JURIST, the University of Pittsburgh's blog:

JURIST Guest Columnist Professor Bruce Aronson of Creighton University School of Law says that Japanese automobile manufacturer Toyota's current safety crisis - now the subject of Congressional hearings - should prompt the company to address its seriously flawed system of governance more than just its public image....

[February 23, 2010]

The next phase in Toyota’s crisis will be the appearance of the President of Toyota Motor Corporation, Akio Toyoda, before the House Committee on Oversight and Government Reform on February 24th.

His message will likely reflect an opinion he published in the Washington Post on February 9th entitled “Toyota’s Plan to Repair its Public Image.”

In it he outlines a number of steps he is taking to address Toyota’s current crisis, including internal and external reviews of operations and quality controls, more vigorous investigation of consumer complaints, more effective internal sharing of information, and better communications with regulators.

Conspicuously absent from this list of worthy measures is any mention of the role of the board of directors in corporate governance. The structure and function of a typical Japanese corporate board reinforces the penchant for corporate secrecy in Japan, which is often cited as a cause of Toyota’s problems.

In both the United States and Japan, the board of directors has a legally mandated function to ensure a corporation’s compliance with law. In both countries, case law provides that directors have a duty of oversight—as part of their fiduciary duties owed to the corporation and its shareholders—to establish and monitor an information and reporting system designed to ensure such compliance. In the United States the duty of oversight in Delaware stems from the well-known Caremark decision, while in Japan it results from a shareholder derivative suit related to the $1.1 billion trading loss scandal in Daiwa Bank’s New York branch in 1995 (see my law review article analyzing this case and its impact in Japan). Statutes in both countries also provide for broader systems of internal controls. In this case Toyota’s systems failed badly.

In Japan the legal duty of oversight often clashes with the traditional structure of Japanese boards—large, hierarchical boards in which directors are all insiders and retain “line” management responsibilities. As a result, any problem can appear to be limited to the director(s) “in charge” of a particular area despite the common fiduciary duty owed by each director.

The Toyota case is particularly interesting because Toyota has been held out in Japan as the prime example of the strength of this “traditional” system of Japanese corporate governance. This system relies on competition in product markets, team production alliances with suppliers, and “main banks” to monitor the performance of corporate management, as opposed to “Western” approaches such as independent directors and a market for corporate control.

A “Western” approach appeared in Japan in 2002 as part of an ongoing debate on reform of corporate governance following Japan’s “lost decade” of the 1990s. An amendment to Japan’s corporate law at that time provided Japanese companies with an option to replace their German-inspired, traditional positions of representative director (a director chosen by the board to represent the corporation, much like a president) and internal corporate auditor (elected by shareholders to monitor directors’ performance) with an “American-style” system of executive officers and board committees with independent directors. Not many Japanese companies have adopted this new system, although the number is slowly increasing.

Until recently the Japanese often contrasted the success of Toyota, the champion of traditional Japanese governance, with the poor performance of Sony, which adopted the “American-style” board committee system and now has a foreigner as its CEO. This popular comparison was always somewhat exaggerated. For example, in 2003 Toyota modified its system through the introduction of “non-board managing officers” and a reduction in the number of directors on its board (from over 40 to 29). However, even today every area of the company is represented by a senior manager on the board of directors and there are no outside directors. Given Toyota’s current problems and its prominence, it will be interesting to see if other Japanese companies will now reconsider this traditional system and incorporate a greater element of independent monitoring of management.

This is not to suggest that the apparent downfall of Toyota condemns the entire system of Japanese corporate governance. Every system has its corporate scandals. The result of scandals such as Enron in the United States has been an even greater emphasis on independent directors in the Sarbanes-Oxley Act and elsewhere. Such measures were not effective in preventing new scandals, such as those accompanying the financial crisis of 2008. For example, one oft-cited weakness at Citigroup was the board’s lack of industry expertise and experience, and its resulting inability to monitor traders’ risk management practices concerning complex financial products.

Nevertheless, Toyota’s response to its current troubles is striking because it has maintained its rather narrow emphasis on manufacturing quality and production issues in the face of a full-fledged crisis. A problem of this magnitude is not simply a matter of a technical fix or of repairing Toyota’s public image. There were also significant flaws in Toyota’s governance system. Perhaps Mr. Toyoda and his colleagues should also consider a plan for a greater role of the board of directors, compliance with law, and corporate governance issues within “the Toyota Way.”

The House Oversight Committee might even be interested in hearing about it.

***

Bruce Aronson is Associate Professor at Creighton University School of Law and was formerly a practicing attorney who represented Japanese clients.

Comments

See also now:

"Learning from Toyota’s Troubles: Board Oversight and the Debate on Board Structure and Director Independence in Japan

Bruce E. Aronson
Creighton University - School of Law

Journal of Japanese Law, Forthcoming

Abstract:
This Article considers the potential significance of Toyota’s recent troubles for Japanese corporate governance by examining two sets of issues. First, it looks at the relevant fiduciary duty of Toyota’s directors, i.e., the general duty of oversight in Japan as set forth in case law in the Daiwa Bank shareholder derivative litigation (2000) and the related subsequent statutory duty to establish a system of internal controls provided in the Companies Act (2005). Potential director liability would depend on the filing of a shareholders derivative suit and the discovery of facts which show director’s negligence in devising, implementing, and monitoring specific measures to carry out the board’s existing overall policy on internal controls.

Second, it considers the Toyota case in light of the ongoing debate in Japan during the last decade between competing board structures: the traditional company auditor (kansayaku) structure with no required outside directors and the newer alternative board committee structure with a required majority of outside directors. The potential role of independent directors remains controversial and is currently the hottest topic in Japanese corporate governance. The recent failures of Toyota, a highly successful champion of the traditional Japanese governance system, might help make Japan more receptive to calls by international and domestic institutional investors to take measures to increase board independence.

Keywords: corporate governance, comparative law, Japan, independent director, oversight, Toyota

JEL Classifications: K22
Accepted Paper Series
Date posted: July 09, 2010 ; Last revised: July 09, 2010

Suggested Citation

Aronson, Bruce E., Learning from Toyota’s Troubles: Board Oversight and the Debate on Board Structure and Director Independence in Japan (July 8, 2010). Journal of Japanese Law, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1636557

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Japanese Law in Asia-Pacific Socio-Economic Context
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