New Developments in Arguments on Legal Liability of Financial Institutoins

While in the United States lender liability actions have recently increased year after year, in Japan arguments have been developed regarding the legal liability/duties of financial institutions parallel with further deregulation and internationalization. This article reviews and analyzes certain new types of legal liability/duties to which Japanese financial institutions are now, or may hereafter be, subject under Japanese law and which are attracting significant attention in banking and legal circles. Legal liability of financial institution can be classified into two: (i) liability/duties arising under general laws (the Civil Code and Commercial Code) which include (a) the liability of a lender to make a loan; (b) the liability of a lender to properly evaluate collateral; (c) the liability of a lender to provide clients with appropriate information; and (d) the "network liability" of a financial institution; and (ii) those under special statutes regulating financial institutions or their business which include (e) the duties of a financial institution under special laws and regulations prohibiting money laundering activities (hereinafter sometimes collectively referred to as the "Money Laundering Prevention Law"); and (f) the liability/duties of a financial institution under the Anti-Monopoly Law. At the end, Ipresent my own view on why lender liability arguments have suddenly become topical in Japan and suggest a practical approach Japanese lenders can take to properly deal with their liability/duties.