JAPAN Law and Practice Contributed by: Tsuyoshi Ikeda, Aya Yasui, Takuya Ohata and Kohei Kohara, Ikeda & Someya
website. The authority must conclude the Phase II review within either 120 calendar days from the date of the JFTC’s acceptance of the notification or 90 calendar days from the date of acceptance of all the responses made in relation to the Request for Report, etc, whichever is later. In practice, it usually takes sev - eral months, or even more than a year, for the JFTC to formally accept all the responses made in relation to the Request for Report, etc. While the suspensive effect is not applicable for the Phase II review period, in practice the parties are advised to refrain from completing the transaction until the clearance is granted. If, following a Phase II review, the JFTC finds that the transaction will not substantially restrain competition, it will grant the clearance by issuing a confirmation letter stating that the JFTC will not issue a cease- and-desist order on the transaction. When finding that the transaction could substantially restrain competi - tion, the JFTC will afford the filing party an opportu - nity to express their opinions (including a proposal of remedies) and submit evidence before the JFTC’s final decision on whether to issue a cease-and-desist order. In any case, the results of the review will be made public. 3.8 Pre-Notification Discussions With Authorities Parties can discuss issues on a voluntary basis with the JFTC by means of a pre-notification consultation. During the consultation, the parties can submit writ - ten explanations concerning an overview of transac - tions and (potential) competitive issues, and discuss substantive issues including market definition and any other competitive concerns (such as high market shares or lack of strong competitive pressure from current or potential competitors). It should be noted that, if the pre-notification consultation is made by an attorney on behalf of the notifying party, a POA is required. The period of pre-notification depends mainly on the intention of the notifying parties. For instance, if the parties ask the JFTC just to review the draft of the formal notification, it will take only a few days, while
in the case of complicated transactions, it is expected to take several months or more. The JFTC and the notifying parties regularly commu - nicate confidentially in this process. If the parties have already publicly disclosed the transaction, the JFTC may contact their competitors and customers in order to obtain their opinions about the transaction. 3.9 Requests for Information During the Review Process The JFTC can request that the parties provide further information at any time during the review process. The amount and content of the information requested depend on the transaction in question. It should be noted that the review process will not be suspended or restarted by requests for information. Regarding the Phase II review, the 90-day statutory review period will start to run only when the JFTC accepts all the necessary information requested in the forms for the Request for Report, etc. 3.10 Accelerated Procedure The AMA does not technically provide a short-form or fast-track procedure for the review process. Although the party/parties can ask for the 30-day waiting peri - od to be shortened, the JFTC has sole discretion on whether to agree to such a request. The JFTC examines whether a business combina - tion is likely to result in a “substantial restriction of competition in a certain market”, which means that competition itself is significantly reduced to such an extent that a particular business operator or group of business operators can control a market by deter - mining prices, quality, quantity and other competitive parameters of their own volition. The Merger Guidelines, mentioned in 1.1 Merger Control Legislation , classify business combinations into horizontal, vertical and conglomerate business combinations, and clarify the factors to be taken into account and the framework for determining whether 4. Substance of the Review 4.1 Substantive Test
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