JAPAN Law and Practice Contributed by: Koki Yanagisawa, Nagashima Ohno & Tsunematsu
Derivative lawsuits under the Companies Act In a derivative lawsuit under the Companies Act, the plaintiff shareholders need to prove the negligence or wilfulness of the defendant directors, the amount of damage and a causal relationship between the defendants’ conduct and the damage. Standard of Proof Regarding the standard of proof, the party with the burden of proof must show that the alleged facts are “highly probable” in order to obtain a court judgment in their favour through civil court proceedings. 2.5 Pass-On Defence When a defendant argues that the plaintiff’s loss has been reduced by the plaintiff having passed on any overcharge arising from the defendant’s violation of the Antimonopoly Act to its consumers, the plaintiff (ie, a direct purchaser) will be required to prove the actual amount of damage by taking into account the passing-on amount (ie, the amount the direct purchas - er collected from indirect purchasers). 3. Limitation Periods and the Duration of Litigation 3.1 Statute of Limitations Claimants must initiate damages claims within the earlier of the following two periods: (i) 20 years from the date on which the alleged violation of the Antimo - nopoly Act first occurred; or (ii) three years from the date on which the claimant first became aware of the alleged violation. Claimants must initiate damages claims under Article 25 of the Antimonopoly Act within three years from the date on which the relevant cease-and-desist order or administrative surcharge payment order rendered by the JFTC became irrevocable. Under Article 166, paragraph 1 of the Civil Code, a claim for recovery of unjust enrichment pursuant to Articles 703 and 704 of the Civil Code must be brought within ten years of the date of the conduct at issue and within five years of the date on which the claimant first became aware of the alleged violation.
There is no limitation period for an injunction, pursuant to Article 24 of the Antimonopoly Act. Under Japanese law, limitations are considered as part of substantive law. Even after the expiry of any of the limitation periods described above, the court may uphold the claims if the defendant does not bring the defence of limitation. The running of the limitation period can be suspended on the following grounds, among others: • filing of a lawsuit on the merits based on the sub - ject claim with the court; • filing of a petition for attachment, provisional seizure, or provisional disposition based on the subject claim with the court; • entering into an agreement to engage in negotia - tions; or • any acknowledgement of the subject claim by the defendant. 3.2 Typical Length of Private Antitrust Litigation In general, the Law on Expediting Trials provides that a period of two years is a target period for the com - pletion of the first instance of civil court proceedings. However, the duration of court proceedings may well depend on various circumstances, including the com - plexity of each case. Although it usually takes at least one year for the court to render a judgment for the first instance in typical civil cases, private antitrust litigation could last for more than two years because the judges, who are not necessarily familiar with the antitrust laws and regulations, need to examine rela - tively complicated issues, including the calculation of damages.
4. Class and Collective Actions 4.1 Statutory Basis
Class/collective actions are not available under Jap - anese law. Although there were discussions as to whether the amendments to the Antimonopoly Act should include the introduction of collective actions for damages claims under Article 25, and actions for injunction under Article 24 of the Antimonopoly Act,
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