JAPAN Law and Practice Contributed by: Koki Yanagisawa, Nagashima Ohno & Tsunematsu
ily appear before the court, without justifiable reason, allowing such witnesses to be compelled to attend. Penalties may also be imposed on witnesses who have failed, or refused, to appear before the court, although such penalties are not severe. In practice, however, it is unusual in civil proceedings for the court to order a subpoena or impose penalties even if a wit - ness does not appear. 7.2 Expert Witness Role and Procedure Depending on the nature of the issues involved in each case, the court may rely on expert witnesses. A party to the lawsuit may submit to the court, as docu - mentary evidence, a report prepared by an expert it has appointed. In order to examine the credibility of such report, the opposing party may request the court to conduct a cross-examination of the expert. A party may request the court to appoint an independ - ent expert to provide an expert opinion, and the court then determines whether such an appointment is nec - essary. Once an expert is appointed by the court, they are obliged to give their opinion in the field in which they have expertise. Under Japanese civil court proceedings, there are no particular rules regarding concurrent expert evidence, including whether experts are requested to produce joint statements indicating the areas in which they agree/disagree in advance, or whether to adopt alter - native methods of hearing expert evidence. 8. Damages 8.1 Damages: Assessment, Passing On and Interest Assessment of Damages One of the main methods for assessing damages in cartel cases is to calculate the difference between: (i) the price of the relevant product immediately before the alleged cartel activity; and (ii) the price of the rel - evant product actually charged in the transaction at issue. Passing-on value – ie, the amount that direct purchas - ers have recovered from indirect purchasers – may be taken into account when calculating the extent of
damages suffered by the direct purchasers. In cases involving both direct and indirect purchasers, it is often difficult to prove the amount of damages, as well as any causal relationship between the alleged violation and the damages claimed. The Supreme Court decision of 8 December 1989 held that damages arising from cartel activity are calcu - lated as the difference between the actual sales price and the sales price that would have been charged if not for the cartel in question (ie, the expected sales price). This assumes that the sales price immediately before the formation of the cartel is the expected sales price, unless significant changes in economic condi - tions and market structures occurred – for example, between the time of the cartel’s activity and the time that customers purchased the merchandise at issue. The Supreme Court decision also held that plaintiffs must prove that no such significant change in eco - nomic factors took place. If providing such proof is not possible, the presumption of the expected sales price is not allowed, and the plaintiffs (indirect purchasers) must prove the expected sales price based on price formation factors. However, the court’s decision has been harshly criticised by scholars and practitioners, in that plaintiffs must bear the burden of almost insur - mountable proof pursuant to this decision. In calculating the amount of damages claimed under Article 25 of the Antimonopoly Act, the court may seek the JFTC’s opinion. In addition, Article 248 of the Code of Civil Procedure allows the court to determine a rea - sonable amount of damages if it is extremely difficult for the parties to prove the precise amount due to the nature of the damages. The court may determine the amount of damages arising from the violation of the Antimonopoly Act using these mechanisms. Under Japanese law, collection of exemplary or puni - tive damages is not permitted in civil proceedings since such remedies are considered to be contrary to public policy. In calculating the amount of damages sought by pri - vate antitrust claims, neither the amount of adminis - trative surcharges imposed by the JFTC nor that of criminal fines imposed by the criminal court are taken into consideration by the court.
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