Blockchain 2024

Last Updated June 13, 2024

Japan

Law and Practice

Authors



Anderson Mori & Tomotsune is one of the largest and most international Japanese law firms. It is best known for its long and established history of advising overseas companies doing business in Japan and in cross-border transactions. The firm’s main office in Tokyo is supported by two offices in Japan and eight overseas. The firm has one of the leading fintech practices in Japan. With extensive experience across all areas of fintech, Anderson Mori & Tomotsune’s skilled lawyers provide innovative, up-to-date legal advice to clients in this fast-growing and cutting-edge industry. Because of the firm’s long history of success and proven understanding of new technology, its advice is regularly sought in fintech-related matters, including applications for licences and regulatory approvals for start-ups; analysis of financial regulatory issues; development and marketing of innovative financial instruments, products and transactions; and consultations and negotiations with supervisory regulatory authorities and self-regulatory organisations.

Japan was the first country to establish a regulatory framework for crypto-assets. Due to this head start, blockchain technology is now being increasingly adopted in the Japanese financial industry. For example, there are 29 licensed crypto-asset exchange service providers in Japan (“exchange providers”) as of 31 March 2024.

In line with this, on 4 March 2022, the Bill for Partial Amendment to the Act on Payment Services Act, etc. for the Purpose of Establishing a Stable and Efficient Funds Settlement System (the “Amendment Act”) was submitted to the Diet. It was approved on 3 June 2022, and subsequently came into effect in June 2023.

The Amendment Act aims to establish a stable and efficient funds settlement system that can respond to the digitalisation of finance and other fields, against the backdrop of:

  • the increasing issuance and circulation of so-called stablecoins overseas;
  • the growing need to further improve the effectiveness of transaction monitoring by banks, etc; and
  • the spread of prepayment instruments that enable payment by electronic means.

In addition, in response to the increasing issuance and circulation of so-called stablecoins overseas, the Amendment Act also introduces the concept of “electronic payment instruments” (EPIs), which corresponds to the concept of stablecoins (items in Article 2, paragraph 5 of the Amended Payment Services Act (the “Amended PSA”).

The Amendment Act also provides a new definition of intermediary activities in respect of the transfer and management of stablecoins that constitute EPIs. Specifically, under the Amendment Act, such activities are defined as “electronic payment instruments exchange services” and “electronic payment-handling services”. Furthermore, the Amendment Act introduces a registration system in respect of businesses engaged in such activities.

Since 2020, security tokens, sometimes referred to as digital securities, have been in the spotlight. As a result of recent amendments to the relevant laws and regulations, an increasing number of financial institutions are entering this new market, focusing mainly on digital corporate notes and tokenised equity interests in real estate funds. In addition, on 25 December 2023, Osaka Digital Exchange Co, Ltd announced the commencement of trading of security tokens on START, a private trading system for security token transactions. As Japan’s first secondary distribution market for security tokens, START aims to support flexible financing for companies and to provide investors with a wide range of investment opportunities.

Furthermore, since late-2020, non-fungible token (NFT)-related businesses have been gaining traction, particularly in the online gaming and art sectors, and a number of platforms for the issuance and trading of tokenised digital artworks have also recently emerged.

More recently, in April 2024 the Liberal Democratic Party (LDP), the ruling party in Japan, released a “Web3 White Paper 2024” that included a summary of issues needing immediate resolution for the promotion of Web3, as well as proposals for accompanying legislative revisions.

These developments demonstrate that Japan has adopted the promotion of Web3, including NFTs and decentralised autonomous organisations (DAOs), as a national strategy.

The legal nature of crypto-assets under Japanese civil law statutes is still unclear. According to a judicial precedent of the Tokyo District Court dated 5 August 2015, legal ownership or title does not apply to crypto-assets as they are intangible assets. As a consequence, the transfer of a crypto-asset does not equate to the transfer of legal ownership or title in that crypto-asset under the Civil Code.

Furthermore, from the perspective of the Civil Code, it is unclear when transfers of crypto-assets via a blockchain network would be considered final, as the legal characteristics of crypto-assets have not yet been firmed up.

Digital assets generated and traded on a blockchain are not necessarily classified as crypto-assets. Rather their legal statuses vary depending on the function of the digital asset in question, and on other factors.

For example, if a digital asset is prepaid and can only be used for settlement with specified persons (ie, at member stores) to the extent of the amount prepaid, and if it is prohibited (in principle) from being replenished, the digital asset may be classified as a prepaid payment instrument (PPI), while those that can be replenished in value may be classified as electronic money issued by fund transfer service providers.

With the development of blockchain technology, so-called security tokens – or digital assets that represent shares, corporate bonds, fund interests, etc – have also emerged, and these are treated as securities, based on their nature and functions.

More specifically, if profit is distributed to the digital asset holder from the business income of the digital asset issuer, such digital asset would be classified as a security under the Financial Instruments and Exchange Act (FIEA). If no profit is distributed, the next factor to consider is whether the digital asset is issued for consideration. Digital assets that are issued for no consideration will likely be deemed unregulated service points. Where a digital asset is issued for consideration, its legal status will depend on whether the digital asset constitutes a currency-denominated asset.

If a digital asset constitutes a currency-denominated asset, it will constitute either a PPI, electronic money issued by fund transfer service providers or an EPI (discussed in 2.4 Stablecoins).

On the other hand, a digital asset that does not constitute a currency-denominated asset, and that is usable vis-à-vis unspecified persons and can be bought, sold or exchanged vis-à-vis unspecified persons, will (in principle) likely be deemed a crypto-asset.

The FIEA has conventionally classified securities into:

  • traditional securities, such as shares and bonds (Paragraph 1 Securities); and
  • contractual rights, such as trust beneficiary interests and interests in collective investment schemes (Paragraph 2 Securities).

While Paragraph 1 Securities are subject to relatively stricter requirements in terms of disclosures and licensing/registration as they are highly liquid, Paragraph 2 Securities are subject to relatively looser requirements as they are less liquid.

However, if securities are issued using an electronic data processing system such as blockchain, it is expected that such securities may have higher liquidity than securities issued using conventional methods – regardless of whether they are Paragraph 1 or Paragraph 2 Securities. For this reason, a new regulatory framework exists through the FIEA for securities that are transferable via electronic data-processing systems. Under the FIEA, such securities are classified into the following three categories:

  • Paragraph 1 Securities, such as shares and bonds, which are transferable using electronic data-processing systems (Tokenised Paragraph 1 Securities);
  • contractual rights such as trust beneficiary interests and interests in collective investment schemes, which are conventionally categorised as Paragraph 2 Securities and are transferable using electronic data-processing systems (electronically recorded transferable rights (ERTRs)); and
  • contractual rights such as trust beneficiary interests and interests in collective investment schemes, which are conventionally categorised as Paragraph 2 Securities and are transferable using electronic data-processing systems, but which have their negotiability restricted to a certain extent (Non-ERTR Tokenised Paragraph 2 Securities).

An issuer of Tokenised Paragraph 1 Securities or ERTRs is, in principle, required to file a securities registration statement (as is the case for traditional Paragraph 1 Securities) before making a public offering or secondary distribution, unless the offering or distribution falls under any category of private placements. Any person who engages in the business of the sale, purchase or handling of the offering of Tokenised Paragraph 1 Securities or ERTRs is required to undergo registration as a Type 1 Financial Instruments Business Operator (“Type 1 FIBO”).

In light of the higher degree of freedom in designing Tokenised Paragraph 1 Securities or ERTRs and the higher liquidity of these securities, a Type 1 FIBO that handles these digital securities will be required to control risks associated with digital networks, such as the blockchain used for digital securities.

As noted in 1.1 Evolution of the Blockchain Market, in response to the increasing issuance and circulation of so-called stablecoins overseas, the Amendment Act has introduced the concept of EPIs, which corresponds to the concept of stablecoins.

The Amendment Act stipulates four categories of EPIs, as follows (Article 2, paragraph 5 of the Amended PSA):

  • currency-denominated assets that are recorded and transferred electronically, that are usable for paying consideration to unspecified persons and that may be purchased from or sold to unspecified persons (“Type I EPI”);
  • a property value exchangeable with a Type I EPI with an unspecified counterparty, and transferable by means of an electronic information-processing system (“Type II EPI”);
  • specified trust beneficiary rights (“Type III EPI”); and
  • such instruments as may be specified by Cabinet Order as being equivalent to those listed in the preceding three items (“Type IV EPI”).

Regarding the definition of a Type I EPI, “currency-denominated assets” are defined as assets denominated in Japanese yen or in a foreign currency, or with respect to which the performance, repayment or any other activity equivalent thereto will be carried out in Japanese yen or in a foreign currency. Based on this definition, a digital coin whose value is pegged to the Japanese yen, US dollar or any other fiat currency (such as, for example, where the price of a digital coin is always fixed at one yen or dollar, or where a digital coin is redeemable at one yen or dollar) may fall within the definition of a Type I EPI, but would not fall within the definition of crypto-assets.

In view of the above, so-called algorithmic stablecoins that are not collateralised by fiat currency but whose values are linked to fiat currency through an algorithm are unlikely to qualify as currency-denominated assets. Such algorithmic stablecoins will likely fall within the category of crypto-assets if they are transferable or tradeable with unspecified parties on the blockchain.

Type I EPIs and other currency-denominated assets are distinguished by the following factors:

  • (i) whether they may be used as payment for consideration to unspecified persons; and
  • (ii) whether they may be purchased from or sold to unspecified persons.

More specifically, PPI and electronic money that are issued by fund transfer service providers do not satisfy condition (i) above, as their issuers would centrally manage the balance of each user and the scope of accepting stores (member stores).

Additionally, even though digital money is issued on a blockchain, it will not satisfy condition (ii) above if its issuer has taken technical measures to allow the digital money to be transferred only to persons who have passed confirmation at the time of transaction (ie, know-your-customer (KYC)), and if the issuer’s consent or other involvement is required for each transfer of the digital money. Consequently, only permissionless stablecoins (eg, USDT and USDC) would typically be considered as falling within the definition of Type I EPIs, as permissionless stablecoins generally do not require KYC of new stablecoin holders or any other involvement of the issuer when transferred.

Since EPIs must be property value-denominated in a legal currency, and issuance and redemption of EPIs enable parties across long distances to pay and receive funds without directly delivering cash, the issuance and redemption of EPIs thus constitute “fund remittance transactions” (kawase-torihiki). Consequently, a banking licence or fund transfer business registration would, in principle, be required in order to issue and redeem EPIs. In addition, trust companies and foreign trust companies are also permitted to issue EPIs, though they are only permitted to issue Type III EPIs (specified trust beneficiary rights).

It is also worth noting that it is not possible for a crypto-asset exchange service provider (CAESP) to list EPIs on its exchange without being registered as an electronic payment instruments exchange service provider (EPIESP). More specifically, a person who engages in activities including but not limited to the following electronic payment instruments exchange services is required to be registered as an EPIESP:

  • sale and purchase of EPIs, or exchange of EPIs for other EPIs;
  • intermediary, brokerage or delegation activities in respect of such sale, purchase or exchange; and
  • management of EPIs for the benefit of another person.

NFTs are generally non-substitutable tokens that are issued on a blockchain, with values and attributes unique to the token itself. The issue in this context is whether NFTs constitute crypto-assets (as defined in 4.1.1 Regulatory Overview) under the PSA, since NFTs, like crypto-assets, are tokens issued on the blockchain.

In this regard, according to the Crypto-Asset Guidelines dated 24 March 2023 and issued by the Financial Services Agency of Japan (JFSA), a factor for determining whether a token constitutes a Type I crypto-asset (as defined in 4.1.1 Regulatory Overview), is whether the token is an asset that can be purchased or sold using legal fiat currency or crypto-assets under socially accepted norms. Specifically, a token that satisfies both listed items below will generally not constitute a Type I crypto-asset, and the same applies to the determination of whether a token constitutes a Type II crypto-asset (as defined in 4.1.1 Regulatory Overview).

  • Where the issuer, etc, has made it clear that the token is not intended to be used as payment for goods, etc, to unspecified parties. This can be achieved by (for example) stating clearly in the terms and conditions of the issuer or its business handling service provider, or in the product description, that use of the token as a means of payment to unspecified parties is prohibited, or that the token or related system is designed in a way that does not enable it to be used as a means of payment to unspecified parties.
  • Where use of the token as a means of payment for goods, etc, to unspecified parties is permitted, certain requirements on the price and quantity of the relevant goods, etc, and on the technical characteristics and specifications of the token must be met. For example, at least one of the following characteristics must be present:
    1. the minimum value per transaction must be sufficiently high (ie, JPY1,000 or more); or
    2. the number of tokens issuable as a proportion of a transaction of minimum value is limited (ie, not exceeding one million).

In general, there is no limitation on the use of crypto-assets for payments. Accordingly, payments are allowed to be made with crypto-assets in Japan. It should be noted, however, that under the Foreign Exchange and Foreign Trade Act, notification to the Minister of Finance is required when a payment is made or received between Japan and a foreign country, or between a resident and a non-resident, in an amount exceeding the equivalent of JPY30 million. This notification requirement is applicable both where payment in crypto-assets is made or where payment in crypto-assets is received.

Under Japanese law, ownership rights generally do not apply to crypto-assets that do not have a physical form. As a result, a security interest cannot be created over crypto-assets themselves. However, if crypto-assets are deposited with a custodian, it is possible to create a pledge or similar rights over the claim to recover the crypto-assets from the custodian. As a result, it is possible to provide financial services, such as loans, using the right to demand the return of crypto-assets as collateral.

There is no clear definition of “smart contracts” under Japanese law, nor is there any specific regulation of smart contracts in Japan.

The authors understand smart contracts to generally mean self-executing contracts containing terms that are predetermined pursuant to specific programming codes on blockchain. The use of smart contracts may raise issues of their validity and enforceability as legal contracts. However, such issues may be offset by the fact that smart contracts are effectively enforceable regardless of their legal validity.

For instance, a smart contract would be automatically enforced and irrevocable even if such contract is invalid and unenforceable for violating applicable law. It should be noted that there is currently no judicial precedent in Japan addressing the legal enforceability of such smart contracts.

Under the PSA, a person who engages in the purchase and sale of crypto-assets as a business is required to be registered as a CAESP (Article 63-2 of the PSA). Only CAESPs are permitted to engage in crypto-asset exchange services (CAES). The PSA requires a person who provides CAES to be registered with the JFSA. A person who engages in CAES without registration is punishable by imprisonment for a term not exceeding three years or by a fine not exceeding JPY3 million, or both (Article 107, Item 5 of the PSA).

Definition of “Crypto-Asset”

The term “crypto-asset” is defined in the PSA as follows.

  • A proprietary value (limited to that recorded on electronic devices or other objects by electronic means, and excluding Japanese and other foreign currencies and currency-denominated assets – the same applies in the following bullet point) which:
    1. may be used to pay an unspecified person the price of any goods, etc, purchased or borrowed, or for any services provided;
    2. may be sold to or purchased from an unspecified person; and
    3. may be transferred using an electronic data-processing system (“Type I crypto-asset”).
  • A proprietary value which:
    1. may be exchanged reciprocally for a proprietary value specified in the preceding bullet point with an unspecified person; and
    2. may be transferred using an electronic data-processing system (“Type II crypto-asset”).

“Currency-denominated assets” means assets denominated in Japanese yen or another foreign currency. Such assets do not fall within the definition of crypto-assets. For example, prepaid e-money cards are usually considered currency-denominated assets. If a coin issued by a bank is guaranteed to have a certain value vis-à-vis fiat currency, such a coin is unlikely to be deemed a crypto-asset but would instead be considered a currency-denominated asset.

Definition of Crypto-Asset Exchange Services

The term “crypto-asset exchange services” (CAES) means any of the following acts carried out as a business:

  • sale and purchase of crypto-assets or exchange of crypto-assets for other crypto-assets;
  • intermediary, brokerage or delegation of such sale, purchase or exchange;
  • management of users’ money in connection with the acts listed in the two bullet points above; or
  • management of crypto-assets for the benefit of another person.

There is no definition of decentralised finance (DeFi) under Japanese law, and there is no regulatory framework that focuses specifically on DeFi.

However, under Japanese law, if the operation of a DeFi platform conflicts with existing financial regulations, the latter will apply.

Existing financial regulations – such as regulations in respect of CAES (as discussed in 4.1.1 Regulatory Overview) under the PSA, investment fund regulations and derivatives regulations under the FIEA, or funds remittance transaction (kawasetorihiki) regulations under the PSA, the Banking Act or the Money Lending Business Act (MLBA) – may apply to the operator of the DeFi platform, depending on the functions of the platform, if the DeFi platform contains:

  • an automated market maker (AMM) function that enables the buying, selling and exchange of tokens that fall within the definition of crypto-assets;
  • wallet aggregators;
  • a decentralised synthetic investment platform;
  • a decentralised prediction market;
  • decentralised stablecoins; and
  • a decentralised lending platform.

The marketing activities of CAESPs are also regulated by the PSA. More specifically, CAESPs are required to display the following in their advertisements:

  • the trade name of the cryptocurrency exchange operator;
  • a statement indicating that they are registered CAESPs, along with their registration numbers;
  • clarification that crypto-assets are not legal tender or foreign currency;
  • where there is a risk of loss due to fluctuations in the value of crypto-assets as a direct cause, a statement explaining such risk and the reasons therefor; and
  • clarification that crypto-assets can only be used for payment if the recipient agrees to accept them as payment.

In addition to the PSA, the Act against Unjustifiable Premiums and Misleading Representations (AUPMR) also contains provisions that regulate marketing activities in general. For example, the AUPMR imposes restrictions against unjustifiable representations that may mislead users, and limits the amount of premiums that can be offered in connection with transactions.

Regulations concerning anti-money laundering and counter-terrorism financing (AML/CTF) in Japan are primarily found in the Act on Prevention of Transfer of Criminal Proceeds (APTCP) and the JFSA’s AML/CTF Guidelines (the “AML/CTF Guidelines”). Both are generally in line with the standards set by the Financial Action Task Force (FATF).

The APTCP imposes certain obligations on specified business operators (SBOs), including CAESPs and EPIESPs. These obligations include:

  • the duty to perform KYC procedures;
  • the obligation to report suspicious transactions; and
  • the obligation to create and maintain transaction records.

Revisions to the APTCP, implemented in 2023, also introduced the Travel Rule for transfers involving crypto-assets and EPIs, based on FATF standards.

The AML/CTF Guidelines apply to JFSA-regulated entities, including CAESPs and EPIESPs, mandating compliance with AML/CTF measures. These guidelines effectively add further obligations on JFSA-regulated entities in addition to the statutory obligations imposed by the APTCP. However, whereas the APTCP primarily sets forth uniform rule-based obligations, the AML/CTF Guidelines adopt a risk-based approach. This approach requires each regulated entity to identify and assess its own risks related to AML/CTF, and to implement appropriate measures tailored to effectively mitigate these risks, thereby marking a significant divergence in approach from the APTCP.

Under the PSA, CAESPs and EPIESPs must promptly report any changes in their major shareholders to the JFSA. A major shareholder is defined as a shareholder who holds 10% or more of 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 whenever possible.

A separate special liquidation framework is applicable to CAESPs and EPIESPs. Accordingly, CAESPs and EPIESPs are subject to general insolvency laws, such as bankruptcy laws. However, regarding the right of customers to claim the return of crypto-assets deposited with a CAESP, the PSA provides that a preferential right exists in relation to crypto-assets that the CAESP has segregated for its customers.

CAESPs and EPIESPs are required under the PSA to have a sound financial foundation, including a minimum capital of JPY10 million and positive net assets.

Additionally, when adding crypto-assets and EPIs to their services, CAESPs and EPIESPs must file a prior notification with the JFSA. As a practical matter, the listing of crypto-assets is governed by a pre-approval system established under the self-regulatory rules of the Japan Virtual and Crypto-Assets Exchange Association (JVCEA).

Considering the risks posed by crypto-assets, the JFSA has, through dialogue with financial institutions, requested them to minimise their acquisition of crypto-assets. In addition, under the subordinate regulations of the Banking Act and the supervisory guidelines, banks are:

  • required to establish measures for ensuring sound and appropriate business management in respect of their handling of crypto-assets; and
  • prohibited from holding crypto-assets for the purpose of investment.

Crypto-asset funds are substantially prohibited, and only funds in the form of certain partnership structures are permitted to invest in crypto-assets.

To encourage fintech innovation, including the development and usage of blockchain technology, in June 2018 the Japan Economic Revitalisation Bureau established a cross-governmental one-stop desk for a regulatory sandbox scheme in Japan.

This scheme, available to foreign and to Japanese companies, enables applicants (once approved) to carry out, under certain conditions, a demonstration of their projects even if such activities are not yet covered under current laws and regulations. Blockchain technology, together with AI, IoT and big data, is explicitly mentioned in the basic policy of the regulatory sandbox scheme as a prospective and suitable area for exploration and development.

In 2017, based on the FATF’s suggestions that virtual currencies could be used for money laundering, the APTCP was amended to include CAESPs as “specified business operators” and to impose an obligation on CAESPs to verify the identity of their customers.

Under the APTCP, specified business operators must verify the identity of their customers, and must comply with the APTCP and rules issued thereunder.

The JFSA has supervisory powers over CAESPs based on the delegation of such powers to it from the Prime Minister.

As a result, the JFSA has the power – where necessary for the proper and secure provision/performance of CAES by a CAESP – to:

  • order the CAESP to submit additional reports or materials;
  • enter the office or other facilities of the CAESP to conduct inspections; and
  • enquire about the status of the CAESP’s business or properties, or inspect its books and documents.

The JFSA can also sub-delegate its supervisory powers over CAESPs to the relevant Local Finance Bureau, which are organs of the Ministry of Finance directed and supervised by the JFSA Commissioner.

For purposes of ensuring proper provision of CAES and protecting users of CAES, the JVCEA was appointed as an approved self-regulatory organisation to regulate CAESPs. The primary objectives of the JVCEA are:

  • the formulation of self-governance rules;
  • the inspection of its members to ensure their compliance with the relevant self-governance rules; and
  • the handling of user complaints.

The Japanese government has a generally positive view of the use of blockchain technology in various kinds of businesses.

For instance, in June 2019 the Japanese government published a “Growth Strategy Action Plan” discussing the importance of the use of blockchain technology, stating that “AI, IoT, robots, big data, blockchain... are general purpose technologies (GPT) that broadly affect all industries, similar to the adoption of electric power from the 19th to 20th century and the inroads made by IT through the end of the 20th century”.

In addition, as stated in 1.2 Business Models, in April 2024 the LDP released a “Web3 White Paper 2024” containing a summary of issues needing immediate resolution for the promotion of Web3, as well as proposals for accompanying legislative revisions.

An important judicial precedent of the Tokyo District Court dated 5 August 2015 states that legal ownership or title does not apply to crypto-assets, as they are intangible assets. As a consequence, the transfer of a crypto-asset does not equate to the transfer of legal ownership or title in such crypto-asset under the Civil Code of Japan.

In 2018, following the leakage of users’ crypto-assets with a value of approximately USD530 million from a cyber-attack on one of the biggest CAESPs, the JFSA conducted sweeping on-site inspections of registered and provisional CAESPs. This was followed by the JFSA’s announcement, on 8 March 2018, of the imposition of business suspension orders on two provisional CAESPs, and of business improvement orders on two registered CAESPs and on three provisional CAESPs. After further review, on 22 June 2018 the JFSA also imposed business improvement orders on six additional major registered CAESPs.

In addition, on 21 June 2019 the JFSA imposed a business improvement order on a CAESP for the inadequacy of its business management, AML/CTF and risk management systems, among other things.

More recently, on 10 November 2022, FTX Japan received an administrative disposition from the JFSA, including a business suspension order and a business improvement order, amid the financial difficulties experienced by its parent company, FTX Trading Limited. On 11 November 2022 (US time), FTX Trading and its group companies filed for Chapter 11 proceedings under the US Federal Bankruptcy Code; FTX Japan and its parent company, FTX Japan Holdings, were included in the filing.

Additionally, the JFSA has been issuing warnings to crypto-asset service providers (including offshore entities) that offer services to residents of Japan without registration with the JFSA, instructing them to cease such activities immediately. In 2023, the JFSA announced that it had issued five such warnings.

One of the most important issues in Japanese taxation of crypto-assets was the treatment of consumption tax. Prior to June 2017, the sale of crypto-assets was subject to consumption tax if the office of the transferor was located in Japan. However, following tax reforms in 2017, transfers of crypto-assets conducted in Japan from July of that year onwards are no longer subject to consumption tax. It is important to note, however, that consumption tax is still applicable to compensation received in relation to the lending of crypto-assets.

With respect to individual income tax, the National Tax Agency of Japan treats gains realised from the sale or use of crypto-assets as “miscellaneous income” (zatsu-shotoku) and considers that taxpayers will not be permitted to utilise losses elsewhere to offset gains realised from the sale or use of crypto-assets. Furthermore, inheritance tax will be imposed on crypto-assets in the estate of a deceased person.

In terms of corporate tax, corporations must perform market value assessments for the crypto-assets they possess that have an active market at the end of each fiscal year, and must record any difference between the book value and the market value as profit or loss. This end-of-period market valuation taxation poses a significant barrier for Japanese companies looking to enter the Web3 space.

However, the tax reform in 2023 stipulated that end-of-period market valuation taxation does not apply if certain conditions are met – such as continuous ownership since issuance and compliance with transfer restrictions – for crypto-assets issued by the corporation itself at the end of the fiscal year.

Additionally, the 2024 tax reform allows for exemption from end-of-period market valuation taxation for non-self-issued crypto-assets held by a corporation at the end of the fiscal year, provided they meet certain conditions, such as compliance with certain transfer restrictions.

The authors are not aware of any ESG/sustainable finance requirements that apply specifically to digital assets in Japan.

Business operators using blockchain technology may be subject to the Act on the Protection of Personal Information (APPI) if they handle personal information.

Considering that a public blockchain involves the sharing of a database among unspecified participants, where information on the blockchain will not (in principle) be deleted or retracted once uploaded on the blockchain, the use of blockchain technology may trigger the application of the APPI. For example, Article 19 of the APPI requires business operators who handle personal information to delete unnecessary personal information once the purpose for which such personal information was required has been achieved. However, a business operator that records the personal information of its users on a blockchain may have difficulty deleting such information, and this could result in a violation of the APPI.

Anderson Mori & Tomotsune

Anderson Mori & Tomotsune
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Chiyoda-ku
Tokyo 100-8136
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+81 3 6775 1000

takeshi.nagase@amt-law.com www.amt-law.com
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Nishimura & Asahi is Japan’s largest, full-service international law firm, with more than 800 professionals (including some associate and alliance offices) based around the world. The firm has an ever-expanding network of 20 offices across Asia, Europe, North America and beyond, allowing it to provide multilingual local expertise on an international scale. The diversity and depth of expertise offered by the firm’s world-class attorneys is difficult to match – by thoroughly understanding clients’ businesses, the firm has provided clients with practical, innovative legal advice since 1966. The firm also applies exceptional knowledge and expertise in offering strategic, comprehensive solutions that advance clients’ business goals. With a pioneering spirit underpinned by professionalism and intelligence, the firm’s promise to clients – “leading you forward” – lies at the core of the services it provides. It aims to make significant contributions to the growth of clients and to society at large.

Venture Capital Investments in Crypto-Assets

An “investment limited partnership” organised under the Limited Partnership Act for Investment (Act No 90 of 1998) (LPAI) is commonly used as the legal form of a venture capital fund in Japan. It can invest only in certain limited types of assets, which include certain securities but not “crypto-assets” as defined in the Payment Services Act (Act No 59 of 2009) (PSA).

On 31 May 2024, a bill to amend the LPAI and other statues was passed into law. The amended LPAI will include “crypto-assets… issued for the benefit of an enterprise” and “crypto-assets issued for the benefit of a foreign corporation” in the types of assets in which an investment limited partnership can invest. However, to the authors it seems that these crypto-assets do not include crypto-assets issued by “no one”, such as Bitcoin and Ether.

In this regard, the “Web3 White Paper 2024” published by the Liberal Democratic Party, Headquarters for the Promotion of Digital Society, Web 3 Project Team on 12 April 2024 recommends the following.

  • That the Ministry of Economy, Trade and Industry (METI) make efforts to develop regulations under the amended LPAI to enable investment in crypto-assets by investment limited partnerships – for example, rules on the scope of business activities that can be conducted by an investment limited partnership as business activities ancillary to investment in “crypto-assets issued for the benefit of an enterprise”.
  • That the Financial Services Agency (FSA) deal with the issue that the requirement for registration as a crypto-asset exchange service provider in the PSA may be triggered by:
    1. the sale of a crypto-asset by the issuer to an investment limited partnership; or
    2. the management of investments in crypto-assets by the general partner of an investment limited partnership.

Tax Reform to Promote Fundraising With Crypto-Assets

Generally, under the Corporate Tax Act (Act No 34 of 1965), actively traded crypto-assets held by a corporation are subject to taxation on unrealised gains at the end of the fiscal year, based on the fair market value of the crypto-assets at that time.

The Corporate Tax Act and relevant regulations were recently amended (the amendments came into force on 1 April 2024). Under the new tax rules, an exemption from fair market value taxation is available, under certain conditions (such as being subject to transfer restrictions), not only to a crypto-asset continuously held by the issuing corporation (this exemption was introduced by amendments in 2023) but also for crypto-assets continuously held by a third-party corporation.

The Web3 White Paper 2024 recommends that:

  • income taxation on crypto-assets (or certain crypto-assets) held by individuals be subject to 20% separate taxation, rather than the current aggregate taxation of up to 55%;
  • income taxation not be triggered by exchange of a crypto-asset for another crypto-asset;
  • tax treatment of a donation of crypto-assets be clarified; and
  • appropriate preferential tax treatment for crypto-assets (such as tax exemptions for donations of crypto-assets) be granted.

Market Growth of Security Token Offerings

Security token offerings (STOs) in Japan are showing remarkable growth. According to statistics published by the Japan STO Association, approximately JPY66.3 billion of tokenised securities was newly offered in 2023.

A large portion of such tokenised securities are beneficial interests in beneficiary certificate-issuing trusts, a special trust form under the Trust Act (Act No 108 of 2006) which enables the assignment of beneficial interests to be perfected by recording on the beneficial interest register, if the parties agree to not issue certificates for such beneficiary interests. Such structure is often used for investment in real estate.

The foregoing also includes those tokenising corporate bonds, tokumei kumiai (TK) interests (as further mentioned below), limited partner interests in an investment limited partnership and beneficial interests in a jointly managed money trust.

Stimulated by new market entries and the opening of the secondary market for tokenised securities mentioned below, the STO sector is expected to grow steadily throughout 2024.

Trading Venue for Tokenised Securities

Under the current Financial Instruments and Exchange Act (Act No 25 of 1948) (FIEA), the operator of an online trading venue for securities (including tokenised securities) must be a financial instruments business operator registered with the regulator to operate a type I financial instruments business (Type I FIBO), and must be authorised by the regulator to operate a proprietary trading system (PTS).

On 1 July 2023, two relevant self-regulatory organisations (the Japan Securities Dealers Association and the Japan STO Association) developed their respective self-regulatory rules related to PTSs handling tokenised securities, which both came into force on the same date. These developments enabled the launch of the first PTS handling tokenised securities on 25 December 2023. Currently, tokenised beneficial interests in beneficiary certificate-issuing trusts for investing in real estate are traded on the PTS.

Furthermore, on 15 May 2024, a bill to amend the FIEA and other statutes was passed into law. Under the amended FIEA, a Type I FIBO will be able to operate a PTS handling certain specified types of securities within a certain trading volume without authorisation to operate the PTS, and under relaxed regulatory requirements. This amendment is expected to facilitate securities firms with launching new PTSs handling tokenised securities.

The Web3 White Paper 2024 recommends that:

  • since there will be two types of PTSs handling security tokens (with and without PTS authorisation), the authorities and the industry make rules to ensure secondary trading of security tokens under the discipline appropriate to each of the two types of PTS; and
  • eligibility of preferential tax treatment under the Nippon Individual Savings Account (NISA) framework should be considered with regard to publicly offered tokenised beneficial interests in beneficiary certificate-issuing trusts.

Regulation of Tokenised Real Estate-Backed Fund Interests as Securities

Interests in a partnership-type fund that directly invests in real estate (rather than indirectly through a trust or otherwise) are regulated under the Act on Specified Joint Real Estate Ventures (Act No 77 of 1994) (ASJREV), and such interests are excluded from the definition of “securities” under the FIEA unless they are issued by a special purpose company (SPC) regulated under the ASJREV. However, while the FIEA has already introduced rules for tokenised securities, the ASJREV does not set forth any rules on such tokenised real estate fund interests. Furthermore, the ASJREV does not contain any rules that regulate the secondary trading of fund interests.

On 20 November 2023, a bill which defines such tokenised real estate fund interests as “securities” under the FIEA and which makes necessary amendments to the ASJREV was passed into law, and will come into force by November 2024. Under the amended FIEA, the rules on tokenised securities will apply to any and all tokenised real estate fund interests regulated under the ASJREV.

New Practices of Tokenising TK Interests

In real estate finance or other structured finance transactions in Japan, a tokumei kumiai (TK) agreement – a type of bilateral contract under the Commercial Code (Act No 48 of 1899) in which one party (a TK investor) makes a contribution to and receives distributions from a business operated by the other party (a TK operator) – is often used as distribution of profits under a TK agreement is generally treated as deductible expenses for tax purposes. However, when a TK investor transfers its TK interest to a third party, under the Civil Code (Act No 89 of 1896), the TK operator’s written consent with a “certified date” (such as a notary public’s dated stamp) is required to perfect the transfer. This perfection requirement is one of the obstacles to tokenising TK interests.

In 2021, an amendment to the Act on Strengthening Industrial Competitiveness (Act No 98 of 2013) (ASIC) introduced a special rule regarding such principle, under which consent can be given through an information system provided by a business approved by the METI under the ASIC, in accordance with a plan approved by the METI under the ASIC, without a “certified date”. On 1 August 2023, a Japanese company obtained such approval for an information-processing system through which a TK operator could consent to the transfer of tokenised TK interests. Some real estate funds were already successful in offering tokenised TK interests that could be transferred using this information-processing system.

One of the remaining issues with tokenised TK interests is the rate of income taxation on individuals. While beneficial interests in beneficiary certificate-issuing trusts held by individuals are subject to 20% separate taxation under certain conditions, TK interests held by individuals are currently subject to aggregate taxation of up to 55%.

The Web3 White Paper 2024 recommends reconsidering the tax treatment of tokenised TK interests.

Introduction of Regulatory Framework for Stablecoins

The regulatory framework for stablecoins as “electronic payment instruments” (EPIs) under the PSA – including the regulation of EPI exchanges and custodians as “electronic payment instruments service providers” (EPISPs) under the PSA – was introduced by amendments to the PSA and other statutes in June 2022. These amendments came into force on 1 June 2023, along with relevant regulations and guidelines.

However, no EPIs have been issued or circulated in Japan in compliance with the PSA, and there is no self-regulatory organisation for EPIs, although the Japan Virtual and Crypto-Assets Exchange Association – the self-regulatory organisation for crypto-assets and crypto-asset-based derivatives – is preparing to become such a self-regulatory organisation for EPIs.

There are some hurdles to issuing EPIs under the current regulatory framework.

Under the PSA – which anticipates the utilisation of tokenised trust beneficiary interests as stablecoins – tokenised beneficiary interests in a trust for which the trust assets are limited to certain types of demand deposits in the same currency (Specified Trust Beneficial Interests) are categorised as EPIs, and are excluded from the definition of “securities” under the FIEA; as such, they are exempt from the regulatory requirements on securities under the FIEA. This narrow definition of Specified Trust Beneficial Interests is regarded as a hurdle to issuing JPY-denominated Specified Beneficial Interests as the JPY short-term interest rate is currently almost 0%.

In addition, under the current policy of the FSA, banks and other deposit institutions are not allowed to issue permissionless stablecoins, while funds transfer service providers are allowed to do so.

Furthermore, the legal treatment of EPIs is not necessarily clear – for example, in the case of a capital contribution in EPIs into a stock company under the Companies Act (Act No 86 of 2005) (the “Companies Act”).

The Web3 White Paper 2024 recommends that:

  • the authorities and industry make necessary efforts for the issuance and circulation of EPIs and the establishment of a self-regulatory organisation;
  • Japanese government bonds be capable of being included in the trust assets for Specified Trust Beneficiary Interests;
  • the authorities and the industry co-operate to commence sorting out issues on the issuance of permissionless stablecoins by banks; and
  • the Ministry of Justice clarify (at least) that if a capital contribution in an EPI that is handled by an EPISP is made and involves the EPISP, it should be regarded as a capital contribution in cash for purposes of the Companies Act.

Discussions on CBDC

While the Bank of Japan and the Ministry of Finance have published several reports on a Central Bank Digital Currency (CBDC) – and the Bank of Japan has conducted proof-of-concept and is now conducting pilot experiments – there is no specific plan for the Japanese government to develop legislation enabling the Bank of Japan to issue a CBDC, or to clarify the regulatory treatments of foreign CBDCs.

Legal Developments in DAOs

The treatment of tokens representing member interests in a certain type of decentralised autonomous organisation (DAO) under the securities regulations were eased by an amendment to a Cabinet Office Order on 1 April 2024, which came into force on 22 April 2024. The amendment was made based on the “Recommendations on DAO Rulemaking” published by the Liberal Democratic Party, Policy Research Council, Headquarters for the Promotion of Digital Society on 25 January 2024.

In principle, when compared with regulatory treatments of non-tokenised membership interests, tokenised membership interests in a godo kaisha (GK), a limited liability company incorporated under the Companies Act, are subject to stricter regulatory treatment under the FIEA – equivalent to the treatment of shares and bonds regarding the disclosure requirements for the issuer and the licensing requirements for brokers and dealers.

However, due to the aforementioned amendment, membership interests in a GK represented by digital tokens are subject to eased regulatory treatment – equivalent to the treatment of GK membership interests not represented by digital tokens – if all the tokens issued by the GK meet one of the following two conditions:

  • technical measures have been taken to prevent the tokens from being acquired by or being transferred to any person other than the managing member(s); or
  • the holder of the membership interests represented by the tokens may not receive dividends of profits or distribution of assets for the GK’s business exceeding the amount of the holder’s contribution.

This amendment is expected to utilise a GK as the legal form of DAO, by enabling a GK that meets these conditions to issue tokenised membership interests to up to 499 persons without being subject to disclosure or licensing requirements under the FIEA.

Furthermore, the Japan DAO Association, a private association incorporated on 1 April 2024, released template articles of incorporation and guidelines for a GK to be used as a DAO.

In addition to the outstanding recommendations contained in the “Recommendations on DAO Rulemaking”, the Web3 White Paper 2024 recommends that:

  • reviews be made of the categorisation of tokenised GK membership interests as a “security” under the FIEA, and of the regulatory treatment of offering tokenised membership interests by non-managing members;
  • even if a company has DAO-related business purposes (such as Web3, crypto-assets or tokens), the opening of a bank account for the company should not be interfered with;
  • legal and practical issues impacting on DAOs in legal forms other than a GK should be clarified and addressed;
  • the possibility of introducing a new legal form for DAOs and proactive measures to enable overseas players to organise or participate in DAOs in Japan should be considered; and
  • the accounting and tax treatment of DAOs be clarified, and preferential tax treatment of DAOs be considered.
Nishimura & Asahi (Gaikokuho Kyodo Jigyo)

Otemon Tower
1-1-2 Otemachi
Chiyoda-ku
Tokyo 100-8124
Japan

+81 3 6250 6200

+81 3 6250 7200

info@nishimura.com www.nishimura.com
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Anderson Mori & Tomotsune is one of the largest and most international Japanese law firms. It is best known for its long and established history of advising overseas companies doing business in Japan and in cross-border transactions. The firm’s main office in Tokyo is supported by two offices in Japan and eight overseas. The firm has one of the leading fintech practices in Japan. With extensive experience across all areas of fintech, Anderson Mori & Tomotsune’s skilled lawyers provide innovative, up-to-date legal advice to clients in this fast-growing and cutting-edge industry. Because of the firm’s long history of success and proven understanding of new technology, its advice is regularly sought in fintech-related matters, including applications for licences and regulatory approvals for start-ups; analysis of financial regulatory issues; development and marketing of innovative financial instruments, products and transactions; and consultations and negotiations with supervisory regulatory authorities and self-regulatory organisations.

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Nishimura & Asahi is Japan’s largest, full-service international law firm, with more than 800 professionals (including some associate and alliance offices) based around the world. The firm has an ever-expanding network of 20 offices across Asia, Europe, North America and beyond, allowing it to provide multilingual local expertise on an international scale. The diversity and depth of expertise offered by the firm’s world-class attorneys is difficult to match – by thoroughly understanding clients’ businesses, the firm has provided clients with practical, innovative legal advice since 1966. The firm also applies exceptional knowledge and expertise in offering strategic, comprehensive solutions that advance clients’ business goals. With a pioneering spirit underpinned by professionalism and intelligence, the firm’s promise to clients – “leading you forward” – lies at the core of the services it provides. It aims to make significant contributions to the growth of clients and to society at large.

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