Corporate Governance

Trust in Japan? Strangled by sontaku 忖度

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Trust and Japan used to go hand in hand. It was a hard earned reputation.  A mining executive once told me that “when you sign a contract with the Japanese, that is the contract. When you sign a contract with the Chinese that is the beginning of the negotiations.” Hardly a subtle difference. Yet here we are in the last few years where a plethora of scandals from Japanese companies have come to light. Houeshold names too – Olympus, Toshiba, Kobe Steel, Subaru, Toray, Nissan, Mitsubishi Motors, Takata, Mitsubishi Materials, Asahi Kasei, Obayashi, JR Central, Nomura etc etc. It is almost as if there is a coming-out of sorts so the crimes are somewhat diluted in the midst of others. Syndicated scandals? Expect more to come out. Perhaps the worst part about it is the limp wristed approach by the regulators. ‘Sontaku’ (忖度) in Japanese is a word meaning ‘glossing over’ which is exactly what the regulator is doing over scandals involving household names. Hear no evil, see no evil, speak no evil.

In October I was invited to give a lecture to 70 bureaucrats at the Ministry of Finance’s attack dogs – the Financial Services Agency (FSA) and the Securities and Exchange Surveillance Commission (SESC) on foreign perceptions of Japan’s handling of corporate  crime. In the interests of objectivity the first slide pointed to how no corporate governance system is perfect citing the minefield of foreign corporations caught up in bad behaviour – VW, Petrobras, Parmalat, HealthSouth, Lehman Brothers etc etc. I also highlighted the sentencing of executives who commit crimes – many received lengthy jail sentences, personal fines while the corporates faced eye-watering penalties.

Ironically much of the crime committed by corporates here is at a relatively pithy level. Instead of billions being massaged into or from the books, Japanese corporates tend to commit the equivalent of falsely submitting a $20 taxi receipt to your boss as a business related expense. One almost could conjure up a scenario that if Toshiba was ever able to make back the money to cover the accounting fraud they’d have broken into corporate HQ in the dead of night to put it back in the safe.

I touched on Kobe Steel which conveniently broke the news that it had falsified the true contents of its products to customers. While pointing out such behaviour was regrettable a chart which showed a heavy shorting of the stock on the day it announced it to its duped clients displayed the bigger problem. A question was asked directly to the regulator – “do you intend to investigate the heavy short selling of Kobe Steel stock 3 weeks before the company announced this to market?” No answer.  The following slide showed that a person that was able to short the stock 3 weeks before the announcement would have cleaned up a tidy 60% profit. Again no plans to investigate the insider trading. Why bother having the FSA if it is a toothless tiger?

The following slide showed the types of fines dealt to both the broker (Nomura was a regular feature in the leaks) and the investor (at the time Chuo Mitsui Asset). The fines were the equivalent of $500 and no suspension of license was pursued by the regulator, When the following slide that compared it to the types of fines meted out to foreign banks – lengthy jail terms, lifetime suspensions and monster fines in the the millions and billions jaws didn’t so much drop but celebrate the idea “thank God we live in Japan”. Truth be told the FSA did punish one dying asset manager $150mn but that is an exception. That is the problem. It is too conditional where convenient.

Rolling onto the next slide the discussion looked at how ‘sontaku’ was a problem. Whereas the FSA & SESC heavily pushed for license revocation of foreign investment companies that it found to break rules, it let off all the domestic companies that had ‘brand names’ to protect. What message is the regulator sending if local corporations know they can pretty much get away with anything. In what way is that a fair system? If foreigners will be turfed on a whim then why do the locals get special protection?

When looking at agency funding, the FSA was put up against the US SEC and Australia’s ASIC equivalents. The US was there for illustrative purposes. Yet Australia was the market that made the point clearest. Despite having a total market cap 5x the size of Australia and 30% more listed companies, Japan spends 20% less than the antoipodeans. Even worse it had fewer numbers of staff and its budget was shrinking.

When analyzing market surveillance, in 2014 the Aussie market issued 36,000 speeding tickets (alerts to potentially suspicious trading). The sophisticated systems are designed to catch any wrong doing. The Japanese issued around 180 speeding tickets. I suggested the FSA go cap in hand to ASIC and the ASX and ask if they can buy the software off the shelf. Safe markets attract capital because all actors feel adequate protections are in place to prevent crime. Higher liquidity attracts more liquidity. It is a win win.

Several years ago the fanfare of the Corporate Governance Code was thrust into the faces of the intenational investment community that Japan Inc was changing. After visiting multiple staff inside the FSA and the TSE there is absolutely no pulse of proactively to be seen anywhere. Even my slight nudge to get the FSA to tap the shoulder of the TSE to suggest listed corporates provide English language materials to encourage more transparency for foreign investment met with the response, “it might help if you spoke directly to the Deputy PM & Minister of Finance Taro Aso.”Not a word of a lie.

How can the Japanese authorities look to appropriately handle a slew of corporate scandals if the encouragement of English language documents requires someone (a gaijin no less) outside the agency to ask the Deputy PM to suggest it back down to them. It is an embarrassment.

In closing perhaps we can look to these corporate scandals breaking out as endemic of a greater underlying problem. While the knowledge that the regulator is likely to do next to nothing provides mild comfort, the reality is that Japanese companies have been strangling themselves for decades. The corporate fabric is fraying. The world is far more competitive than it was. For Japan to assert its ‘quality and/or engineering gap’ dominance now means profits likely suffer. In order to  get around that hurdle it seems that to maintain profit margins, corporates now lie about specifications hoping a history of ‘trust’ and ‘time honoured’ traditions can keep the bluff going. As mentioned earlier the scale of the ‘cheating’ is pitiful yet the shame it brings is multiples larger.

Japan’s cultural rigidities are on full display. Unfortunately they couldn’t arrive at a worse time. Clumps of companies confessing crimes to soften the collective blow is only the start of many more. I suggested in my speech that the authorities introduce a 3 month amnesty period for companies to fess up to any wrong doing. That way they can clear the decks and make it clear that any wrong doing after that date will be met with harsh repercussions. Of course it won’t happen but expect the list of companies above to have many join them at the table of shame.

Mitsubishi Jet facing cancellations

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In 2009 CM argued (in a former life) that the Mitsubishi Regional Jet (MRJ) was doomed to failure. It was answering a question that no one was asking. It seems that one of its customers, Eastern Airlines, which originally placed 40 orders found itself in receivership and its new owners do not seem to have any intention honouring Eastern’s order book. With a total order book (including options) of 447 MRJ aircraft, this would be a big dent. The plane has been beset with delays, material changes (it was to have carbon composite wings but it was deemed too expensive so switched back to alloys, increasing weight hence hurting economics) and the realities of the industry.

1. Demand – Both Boeing & Airbus publish detailed long range fleet forecasts every year. They are both in agreement that regional jets (50-100 seats) have little future forecasting they’ll represent a total of 3,000 orders in the next two decades. Around 8 years ago that forecast was 5,000.

2. Incumbents – Embraer and Bombardier dominate the regional jet market with some 80% share. Mitsubishi is looking to beat the door down in an industry where risk is not wanted. The Chinese are entering the market with the C-919 and the Russians with the Sukhoi Superjet. Mitsubishi wanted a 20% share. Of 5,000 units that’s 1000 units they banked on. At 3,000 that’s only 600 units their share target would hit. Boeing and Airbus are offering slightly smaller versions of the 737 and A320 series to cater to the market that would normally buy an RJ.

3. Pilots – well most pilots are certified to fly only one type of commercial plane at any given time so Mitsubishi needs to make sure it’s planes can have a supply of pilots to fly them and airlines need to take a bet on expansion. Same goes for ground crew training.

4. Existing fleet – if a regional airline wanted to expand, if they used Embraer ERJ-145s it is better to get more of the same as the economics are well understood. Also the pool of pilots is likely more accessible. Route gaps need to be filed as soon as possible so waiting 12 months to get an MRJ may not work for an airline.

5. Residual values – when airlines get into financial turbulence, sometimes fleets need to be trimmed. Having a ‘liquid’ fleet which is easily placed at another airline helps balance sheet (relatively speaking). The best example was the GE engined 747 (60% of market) which sold at a premium to the Rolls-Royce engined 747 (15% of  market) in the used market because very few airlines used RR. A fleet of MRJs may have few homes to go if airlines need to part with them quickly. Airlines know this so it is likely that Mitsubishi is providing such residual value guarantees to bank in the orders.

However if Mitsubishi keep losing orders then the airlines that intend to use them may switch away on the basis that the risks down the line are too great. Regional airline budgets are thin. Risks are avoided at all costs.

The MRJ will likely fall foul of the Mitsubishi YS-11 of the 1970s. Great concept but poor execution on the basis of not having a big enough grasp of the industry dynamics. JAL and ANA will likely he asked to do national service on top of the initial tour of duty to support the plane.

The ground’s the limit.

Insider trading as a politician is ok?

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Watching a session of Canadian Parliament yesterday, the opposition Conservative party asked for a simple ‘yes’ or ‘no’ answer to a question to Trudeau’s Finance Minister Bill Morneau on whether he sold $10m in shares in Morneau-Shepell a week before a new capital gains tax on securities was introduced in parliament. The accusation was that Morneau made $500,000 by insider trading in full knowledge of the tax change that was to be introduced. Morneau spent the entire 20 minutes talking of how his party is defending the middle class with tax cuts. If he was not the person that sold, how easy to openly admit so. So far he’s said nothing.

Insider trading is a punishable offense in the private sector. Yet are politicIans free to make half a million by trading ahead of the event? How can Morneau not resign? Even worse was  Speaker of the House Greg Regan was asking why the question from Paul Pollievre was relevant in question time? Are you kidding me?

Clearly ethics training for Trudeau’s cabinet seems far more pertinent than reintegration of returning ISIS tourists. Then again we shouldn’t forget that Trudeau was actually involved in the appointment of the Ethics Commissioner (without consulting the opposition) indeed at a time when his own ethics had been openly called into question.

Alitalia – what is it with airlines and government support?

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Last Friday Italy extended a bridge loan for Alitalia, which is in special administration as plans for it are determined by the state.  Italy’s cabinet has  passed an emergency decree to add a further 300 million euros on top of the 600 million euros it made to the ailing airline in May. It has extended the deadline for the repayment of the loan from November 2017 to Sept. 30, 2018.

Airlines are perhaps one of the worst industries as an investment one can find. High fixed costs, variable fuel prices, volatile economic cycles and intense competition. Yet with all of this, governments see them as national icons. Losing the flag carrier is viewed by some governments as a sign of economic impotence.

Several years ago, Japan Airlines went through a state-funded rehabilitation where the airline was able to overhaul its fleet while its legitimately profitable and unassisted competitor All Nippon Airways (ANA) got nothing. In the reverse poor old ANA was effectively taxed as its biggest rival got free kick after free kick from the government.

Qantas reported a $235 million loss in the last half of 2013 and cut 5000 employees to save the company $2 billion. The government was pressured to give state aid to prop up the airline but then PM Tony Abbott said, “because we do not want to be in the business of subsidising any single enterprise. It’s not sustainable in the long term”. So Qantas didn’t get help in 2014 and the airline has since rebounded and recently compensated its CEO Alan Joyce over $24mn as the shares have stormed 6x since the lows of 3 years ago. Most of the 5,000 let go have been recovered.

Which begs the question of state subsidies. When looking at Australia once again the state spent billions over decades to defend a bloated, inefficient and uncompetitive car industry. Nissan, Mitsubishi Motors, Toyota, GM Holden and Ford all closed local auto making opps. When businesses are subsidized, the necessity to reform is numbed. There is less need to get fit and look for efficiencies to get off the taxpayers’ teat. So even after 20 years and $12 billion spent to protect 45,000 jobs, all makers packed up and went home. Would have been better to write each worker a $250,000 cheque.

Of course some will argue that protecting jobs is a noble quest. Nobody likes seeing people unemployed. However if the rest of the world can make the same products cheaper and more efficiently why should consumers and taxpayers be forced to prop up those who won’t make the effort to reform.

Alitalia is yet another one of these businesses that is in the citizen’s pockets. If KLM and Air France can pair, Lufthansa and Swissair can join why shouldn’t Etihad back the initial investment it made in Italy’s national carrier. Another Loan is Time-warped, All Logic Is Abandoned.

Kobe Steel’s White Samurai – who might be forced into national service?

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While we are some way off understanding the extent of damage to Kobe Steel, we shouldn’t rule out the inevitable action which could involve a structured rescue of it, a white samurai if you will. Japan’s largest steel company NSSMC (5401) owns 2.95% of the outstanding shares of Kobe Steel. Will we see a motion in several months time as more facts become known for a consortium like the INCJ to team up with NSSMC to turn it into another Hinomaru sunset business? We saw the dying semiconductor industry in Japan get rolled into Elpida (which went bust) and cell phone screen players get merged into Japan Display (still listed) so why would anyone doubt a Hinomaru Steel consortium which would be a forced sense of national duty. While still way too early to surmise we should not ignore such a scenario should Kobe really find itself hoisted by its own petard. Corporate harakiri is the last thing Nippon Sumitomo Steel holders want from a governance perspective

Kobe ‘Steal’ – will the market referee wave a red card at what looks a lot like insider trading?

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If the referee caught Kobe Steel’s (5406) rugby team up to such foul play it is likely that players would be red carded. While unconfirmed speculation at the moment, it would appear that since September 21st Kobe Steel shares came under heavy selling pressure in what a seasoned market punter might suspect looks like insider trading via aggressive short selling. 7 straight negative candle sticks. Kobe Steel spilled the ball on its data manipulation on October 8th.

This would not be the first time that a broker conspired with a fund to short sell a stock ahead of a negative release on insider information where several weeks later news broke and sent the shares collapsing. This is the current action of Kobe Steel shares.

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So excluding borrowing costs or any leverage, if one had managed to short sell Kobe Steel at 1350 (on Sep 21) and brought back at today’s prices a quick fire 53% return would be gained.

The important question is whether the regulator will investigate any potential foul play when looking at the video replay. I will be asking this question directly to the Financial Services Agency (FSA) as I have been invited the regulator to give a speech on ways to improve Japanese corporate governance in a few weeks time.

This won’t be just a beat up of Japan’s corporate governance as foreign corporates have made countless scandals post the introduction of Sarbanes Oxley in 2002.  However it will aim to be a realistic overview of tolerating what seems to be endless preventable insider trading scams with paltry penalties of $500 and a slap on the wrists with a feather duster.

Until serious punishments for flagrant market manipulation are thrust front and centre in front of bewildered and annoyed (foreign) investors, the cynicism will remain that Japan is not a safe place to invest. Remember insider trading is effectively fraud. Perhaps your pension fund owns Kobe Steel in a global portfolio meaning that some shady investor has stolen your retirement to feather his or her nest.

Perhaps I should thank Kobe Steel for getting dirty in the ruck area to help the final presentation draft.

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Kobe ‘Steal’ – why this scandal could get much uglier

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Kobe Steel is the next in a growing list of Japanese corporates embroiled in data falsification. Kobe Steel has been supplying lower spec material to customers than advertised. In a sense stealing. Sure VW is no better in lying about its emissions but Kobe Steel has the potential to be more like Takata than Mitsubishi Motors in terms of impact. The issue here has to do with Kobe Steel products being in structures of aircraft, trains (including bullet trains) and cars. While much is being made of ‘little risk’ attached to these slightly lower spec products the reality is that ‘metal fatigue’ is calculated in the resesearch, development, testing and evaluation of such products.

For instance when planes are in the development phase FAA certification depends on making sure products can meet certain tolerances, cycles and stress tests. Once certification is granted, if subsequent production is met by sub-standard intermediate products unbeknownst to the manufacturer of the part then the trail becomes a much more serious matter. It is easy enough to determine which Honda’s had defective airbags as it is a specific part on specific models. Yet Kobe Steel steel products shipped all over the globe may have been used in different parts. Then those discrete parts would need to be traced to the next intermediate stage and then on to the finished part to which may be fixed to an airline on the other side of the world. Boeing is naturally not raising any alarms until they can assess the issue.

JR has already noted 310 sub standard parts in wheel bearings in its bullet trains which will be replaced at the next scheduled service. It is likely that the JR parts are over spec for the extra margin of safety.

None-the-less aircraft could turn into a much bigger problem. There is only one spec that is supposed to be met. Failure to meet it could cause planes to be grounded until parts are replaced. This could be massively costly as planes not in the air earning money cost millions on the ground. Not to mention the risk of the US government fining the company for reckless behaviour.

Kobe Steel has seen revenues track sideways for the better part of a decade. Profits have been all over the shop. Much like Toshiba tried to fiddle the books with one division in the hope that in time it would be able to put the money back and no one would notice. As for Kobe Steel, there was obviously a plan to try to boost profitability by lowering specs and charging prices for superior spec. Even then the contribution has been poor. Hardly surprising when the cash conversion cycle has exploded from 38 days a decade ago to around 82 today. To be faker most of the big steel companies have a similar CCC which hasn’t changed much over the last decade.

What we can be pretty sure of will be the soft touch of the local authorities. Even with such willful deceit, it is unlikely anyone will see inside of a jail cell or pay multi million dollar fines in Japan. However the tail risk here is the likes of Boeing who will extract every pound of flesh with the help of its authorities to rent seek from Kobe Steel if certain parts are found to be ultimately faulty because of negligence. This is not a staged Nissan-Mitsubishi Motors leak to force a cheap entry into the latter. Still, 37,000 employees at Kobe Steel will be seen as a sizable number to protect at a national level hence a limp wristed response to follow.

One final point. Do we honestly think that Kobe Steel can conduct an honest audit of its deceit? Surely flagrant data fiddling will be milled down to more acceptable cheating.  It is a time honored tradition to leak a bit, then a bit more so as to minimize the shame.

Until Japanese listed corporates face far harsher penalties for such malfeasance, it will be hard to shake off the cynicism that the corporate governance code has introduced anything more than mere lip service. That is OK if that is what Japan wants to project to the world that shareholders are not a priority.