JAPAN Law and Practice Contributed by: Tsuyoshi Ikeda, Aya Yasui, Takuya Ohata and Kohei Kohara, Ikeda & Someya
8. Appeals and Judicial Review 8.1 Access to Appeal and Judicial Review Pursuant to the provisions of the AMA, if a party is unsatisfied with a cease-and-desist order, it may bring an action seeking the cancellation of such order against the JFTC before the Tokyo District Court. That said, practically speaking, it is unlikely that a cease- and-desist order will be issued in merger cases, which results in the unavailability of judicial review in merger review cases. 8.2 Typical Timeline for Appeals An action seeking cancellation of a cease-and-desist order must be filed with the Tokyo District Court within six months. Since there is no precedent of appeal against a cease- and-desist order on a business combination after the amendment of the AMA that provides the current system, the timeline is difficult to predict. However, it could take several years if the non-prevailing party appeals the cease-and-desist order from the first instance until a court judgment is finalised. Consider - ing this, a party that plans to bring an action needs to consider petitioning for a stay of execution of the order in accordance with the Administrative Case Liti - gation Act. 8.3 Ability of Third Parties to Appeal Clearance Decisions There is no precedent in which a third party has suc - cessfully appealed against a clearance decision or a cease-and-desist order. However, any third party may bring an action against a cease-and-desist order as long as it has standing to sue. 9. Foreign Direct Investment/Subsidies Review 9.1 Legislation and Filing Requirements Article 27 of FEFTA provides that a foreign inves - tor intending to make an inward direct investment specified by Cabinet Order shall notify the Minister of Finance and the pertinent minister for the business in advance of the business purpose, the amount and time of making the investment and other items regu -
I as well as Phase II, and the parties will be contacted by the JFTC before the publication to confirm whether the publication contains any confidential information. Since 2017, the JFTC has also issued a list of the cas - es it has cleared on a quarterly basis. The list shows each filing date, the parties’ names, the date of clear - ance and whether it was short-track (ie, whether the statutory waiting period was shortened). 7.4 Co-Operation With Other Jurisdictions The JFTC has entered into agreements for co-oper - ation with various overseas authorities, including the European Commission, and the Federal Trade Com - mission and the Department of Justice in the United States. Article 43-2 of the AMA expressly provides that the JFTC may exchange information with authori - ties in other jurisdictions for specific transactions if doing so is not against the national interest, and if the authorities of other jurisdictions can maintain the confidentiality of the information. In practice, if the JFTC wishes to disclose the informa - tion of a specific transaction to any foreign authority, it obtains the parties’ written waiver in advance. While the JFTC believes that co-operation with other jurisdictions will be beneficial in multi-jurisdiction filing cases, as a practical matter, whether or not the JFTC works closely with other jurisdictions depends on the specific case and regulators. In its review of Korean Air’s acquisition of Asiana Air - lines (referred to in 5.7 Prohibitions and Remedies for Foreign-to-Foreign Transactions ), the JFTC engaged in information exchange with several foreign competition authorities. These included the Austral - ian Competition and Consumer Commission (ACCC), the UK Competition and Markets Authority (CMA), the United States Department of Justice (DOJ), the European Commission, the Korea Fair Trade Com - mission (KFTC) and the Chinese State Administration for Market Regulation (SAMR). The exchanges were conducted under existing co-operation frameworks.
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