JAPAN Law and Practice Contributed by: Koki Yanagisawa, Nagashima Ohno & Tsunematsu
petition for preliminary injunction under Article 24 of the Antimonopoly Act. The JFTC may provide its opinion with respect to the application of the Antimonopoly Act and other neces - sary matters if an action for an injunction has been filed with a judicial court under Article 24 of the Anti - monopoly Act. Formal Injunction In the case of a formal injunction, the procedure constitutes a formal lawsuit on the merits. The court holds hearings attended by both parties, at which they must submit briefs and evidence. Witness examina - tions may also take place during the proceedings. The proceedings generally take more than a year to complete. In order to prevent an abuse of the right to seek an injunction, the court may order the plaintiff to provide an adequate security deposit at the request of the defendant. Preliminary Injunction When seeking a preliminary injunction, the court adopts expeditious procedures under the Civil Pres - ervation Act. However, it is still necessary for the court to hold hearings where the other party may submit its opinion, in principle, and it may take several months to obtain a preliminary injunction order. A petitioner must demonstrate that there is a “necessity” for the preliminary injunction, in addition to establishing the claims to be protected, based on prima facie evi - dence. A petitioner will also be required to furnish a security deposit before obtaining a preliminary injunc - tion order. If a petitioner who obtained a preliminary injunction order subsequently loses the formal law - suit, the respondent/defendant may file a claim for compensation for damages arising from the improper execution of the preliminary injunction order. 10.2 Alternative Dispute Resolution Methods of alternative dispute resolution are available in Japan, but no mandated methods are applicable to private antitrust claims. For instance, mediations, particularly civil mediation proceedings before the court, are frequently used as a method of alternative dispute resolution in Japan and may also be used for antitrust claims. Mediation com -
mittee members, as opposed to professional judges, are in charge of handling civil mediation proceedings and facilitating settlement discussions between the parties. Both parties may terminate the proceedings at any time. Once the parties agree to the settlement terms, such terms have the same effect as a final and binding judgment rendered by a court through a for - mal lawsuit. Under the Arbitration Act of Japan, a civil dispute that may be resolved by settlement between the parties is arbitrable. A private antitrust dispute is also arbitra - ble under such law. Japanese courts are expected to enforce an arbitration agreement even for an antitrust dispute. No legislation or court precedents have pro - vided exceptions to such enforcement to date. In Japan, there is no legislation prohibiting or specifi - cally restricting litigation funding. Accordingly, a plain - tiff may file a private antitrust claim with third-party funding. However, it may be considered as a violation of the Attorneys Act if, in providing litigation funding, a third party who is not qualified as a Japanese attorney ( bengoshi ) provides legal advice to the plaintiff and takes a share of any proceeds from the lawsuit. The Attorneys Act also prohibits a person from acting as an intermediary between clients and attorneys for the purpose of receiving remuneration for referrals. 11.2 Costs Costs are awarded on a limited basis in court judg - ments. In general, a prevailing party can recover the court costs, which include filing fees and travel expenses and/or a per diem paid to witnesses and interpreters. If it is difficult to determine the prevail - ing party, the court may order both parties to share the burden of the court costs based on certain ratios decided at its sole discretion. 11. Funding and Costs 11.1 Litigation Funding Japanese courts do not, in principle, grant prevailing parties the right to recover their attorney’s fees. How - ever, in cases where a claimant is seeking compensa -
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