JAPAN Law and Practice Contributed by: Koki Yanagisawa, Nagashima Ohno & Tsunematsu
“Passing-On” Defence A defendant may argue that the loss suffered by the plaintiff (ie, the direct purchaser) has been mitigated by passing on any overcharge arising from the defend - ant’s violation of the Antimonopoly Act to its consum - ers. The plaintiff will then be required to prove the actual amount of damages by taking into account the passing-on value (ie, the amount recovered from indi - rect purchasers). The “passing-on defence” under Japanese law is therefore discussed in the context of the scope of damages, as opposed to in the context of the stand - ing. If a direct purchaser passed on the amount of loss to its customers, it would be difficult to prove that the direct purchaser suffered actual loss and, as a result, the amount of damages would be reduced accordingly. Interest Interest, or a delinquency charge, is payable on dam - ages arising from a tortious act, including a violation of the Antimonopoly Act, at a rate of 5% per annum under the former Civil Code. Under the amended Civil Code, effective as of 1 April 2020, the statutory rate has changed from 5% per annum to 3% per annum, subject to possible change once every three years. The statutory rate of 3% shall remain the same until 31 March 2029. In court judgments, the interest or delinquency charge is usually imposed on damages until these are paid in full, and therefore includes both pre-judgment interest and post-judgment interest.
entitled to receive any beneficial treatment in follow- on private antitrust cases, there are no limitations on the plaintiff’s antitrust claims against cartel partici - pants, even if some of them are immunity applicants. 9.2 Contribution A defendant can bring a claim for “contribution” against a third party who assumes joint and sever - al liability. For instance, in the event that the court renders a judgment in favour of the plaintiff against a defendant who is one of the cartel participants through a civil court proceeding, that defendant may initiate a separate civil court proceeding to bring a claim for contribution from another cartel participant who is jointly and severally liable as a joint tortfeasor. Under the Code of Civil Procedure a defendant may give notice of a lawsuit to a third party who has a legal interest in the outcome of the lawsuit, for example where the defendant may pass on or share liability with such third party. The third party receiving the notice may join the lawsuit as an assisting intervener. Once a third party receives notice of a lawsuit, such third party will not be able to dispute certain facts in any subsequent lawsuit with the defendant. Injunctive relief is available under Article 24 of the Antimonopoly Act. A claimant whose interests are infringed, or are likely to be infringed, by violation of Article 8, item 5 (ie, activities by a business association that cause a member entrepreneur to employ unfair trade practices) or Article 19 (ie, unfair trade practices by an entrepreneur) of the Antimonopoly Act is enti - tled to file a petition for injunction under Article 24. In such action, a claimant may demand suspension or prevention of infringement by an entrepreneur or a business association if that person has suffered, or is likely to suffer, material damages by such conduct. The action cannot be initiated based on unreasonable restriction of trade, which includes cartels and bid rig - ging, and private monopolisation, while some unfair trade practices may overlap with these categories. A claimant may file a lawsuit for formal injunction or a 10. Other Remedies 10.1 Injunctions
9. Liability and Contribution 9.1 Joint and Several Liability
Private claimants can bring a claim against multi - ple defendants who have committed, among other breaches, unfair restraint of trade or joint refusal to deal under the Antimonopoly Act (eg, cartel partici - pants as joint tortfeasors), based on the principle of joint and several liability. Since immunity applicants in the JFTC’s administra - tive investigations or criminal investigations are not
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