Comparative Legal Considerations on Arranger Liability in Syndicated Loans: court cases from the UK and Japan

摘要

It is necessary to clarify whether an arranger in a syndicated loan is obliged to provide information to participating financial institutions. The UK and Japan share in common the tendency not to recognize the contractual relationships of arrangers and participating financial institutions; nor do they judge the legal liability of arrangers depending on whether or not they are in violation of misrepresentation or duty of care. However, Japan and UK differs in relation to the following manner. That is, as stated in Japan's Supreme Court judgments, there is a possibility that the arranger will be obliged to provide accurate information based on the principle of good faith, depending on the individual circumstances leading to the conclusion of the contract and the contents of individual contracts. On the other hand, the UK has basically no disclosure obligation. In other words, regarding the difference in the basic way of thinking about arranger's liability, UK law becomes a problem of feasance tort, whereas in Japanese law the problem is one of nonfeasance tort.