JAPAN Law and Practice Contributed by: Koki Yanagisawa, Nagashima Ohno & Tsunematsu
Anti-competitive conduct includes cartels and bid riggings, which are typical examples of unreasonable restraint of trade prohibited under the Antimonopoly Act. Agreements on price fixing, production limita - tion, and market and customer allocation are typi - cal examples cartel behaviour. Unfair trade practice includes price discrimination, restrictions on resale pricing, below-cost sales, anti-competitive divisions of territories, concerted refusal of trade, and abuse of superior bargaining position. Under Article 25 of the Antimonopoly Act, companies and business associations that have engaged in, or been party to, private monopolisation, unreasonable restriction of trade or other unfair trade practices are liable for compensation for damages suffered by other entities due to such conduct. As a prerequisite to filing a claim under Article 25, the plaintiffs need to dem - onstrate that the JFTC has issued a cease-and-desist order and/or an administrative surcharge payment order and that such orders have become irrevocable. Under Article 709 of the Civil Code, any person who has engaged in conduct violating the rights or legally protected interests of another person must compen - sate them for the damages arising from such conduct, including the anti-competitive conduct described above. Other Remedies and Actions Injunction In addition to damages claims, a claimant whose inter - ests are infringed, or are likely to be infringed, by cer - tain unfair trade practices is entitled to file a petition for injunction under Article 24 of the Antimonopoly Act. Such unfair trade practices include violation of Article 8, item 5 (ie, activities by a business association that cause a member entrepreneur to employ unfair trade practices) and Article 19 (ie, unfair trade practices by an entrepreneur) of the Antimonopoly Act. Recovery of unjust enrichment It may also be possible for a claimant to bring an action to recover unjust enrichment based on Arti - cles 703 and 704 of the Civil Code, depending on the circumstances.
For instance, under Japanese law, agreements or contracts between private parties may be declared void pursuant to Article 90 of the Civil Code if such agreements or contracts include a provision in vio - lation of the Antimonopoly Act. Accordingly, a party to such agreement or contract may file an action to recover the benefits provided to the other party as unjust enrichment, on the grounds that the agreement or contract is void, and restitution shall be made. Derivative lawsuits under the Companies Act In the event that the JFTC finds that a company has violated the Antimonopoly Act, qualified shareholders of the company may file a lawsuit against the directors of the company for their wilfulness or negligence in failing to perform their duty of care pursuant to Articles 423 and 847 of the Companies Act, if the company does not initiate a lawsuit against the directors within 60 days of receipt of the shareholders’ request to file the lawsuit. In particular, if the JFTC renders an admin - istrative surcharge payment order against the compa - ny or the company is found liable for damages under Article 25 of the Antimonopoly Act or Article 709 of the Civil Code, the shareholders may file a derivative lawsuit against the directors of the company seeking compensation for damages equivalent to the amount of the administrative surcharge or damages paid by In Japan, there are no specialist competition courts and competition judges. However, the Antimonopoly Act provides that the Tokyo District Court has exclu - sive jurisdiction in follow-on claims for compensation for damages under Article 25 of the Antimonopoly Act, and such claims are assigned to the Eighth Civil Affairs Department (the commercial affairs department) of the Tokyo District Court. The Antimonopoly Act also pro - vides that an action for injunction under Article 24 can be brought in a local district court in a place where a high court is located; namely, Tokyo, Osaka, Nagoya, Hiroshima, Fukuoka, Sendai, Sapporo and Takamatsu. If an action for injunction under Article 24 is brought in other local district courts, the case may be transferred to one of the above-mentioned eight district courts. The Tokyo District Court also has exclusive jurisdic - tion as the court of first instance over a challenge to a the company. 2.2 Courts
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