JAPAN Law and Practice Contributed by: Tsuyoshi Ikeda, Aya Yasui, Hiroko Fukushima and Kohei Kohara, Ikeda & Someya
7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights As a general rule, the AMA provides that any person who believes there is an act in violation of the AMA may make a report to the JFTC and ask that appropriate measures be taken. While there is no formal or statutory procedure, any third party may informally submit any report or complaint to the JFTC at any time, including customers and competitors. As part of the formal procedure of a merger review, the Merger Review Policies provide that, at the beginning of a Phase II review, the JFTC invites the public to offer their written comments on the contemplated transaction within 30 days of the announcement on the JFTC’s website. The JFTC is not obliged to respond to a third party’s comment but will normally take informa - tion provided by a third party into account in the substantive review. Furthermore, if a report made by any person under the AMA meets the require - ments and qualifies as notice, as provided in the AMA and the Rules on Investigations of the Fair Trade Commission (established in October 2005, and most recently amended in March 2021), the JFTC shall notify such person about its decision as to whether it will take appropriate measures in regard to the case reported in accordance with the AMA. In October 2023, the JFTC commenced an investigation into Google’s practices concern - ing the pre-installation and prominent placement of its applications on Android devices, which were suspected of restricting competition. In this case, for the first time, the JFTC invited the public to submit information and opinions at the
Regarding confidentiality, please see 7.3 Con- fidentiality . 5.7 Prohibitions and Remedies for Foreign-to-Foreign Transactions The JFTC may issue a clearance subject to rem - edies for foreign-to-foreign transactions. It has issued conditional clearance for the following foreign-to-foreign transactions: • Korean Air Co, Ltd/Asiana Airlines Inc (FY2023); • Google LLC/Fitbit, Inc (FY2020); • JX Metals Deutschland GmbH/H.C. Starck Tantalum and Niobium GmbH (FY2018); • Qualcomm/NXP Semiconductors (FY2017); • Dow Chemical/DuPont (FY2016); and • Abbott Laboratories/St Jude Medical (FY2016). 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications Neither the AMA nor the Merger Guidelines give express guidance regarding ancillary restraints or related arrangements. However, the JFTC may carry out in-depth assessment of ancillary restraints in its substantive review. If, in the course of the review process, the party reports ancillary restraints and the JFTC still issues clearance without raising any competition issue, it would be unlikely that the JFTC would challenge the transaction after the issuance of clearance in a practical sense. However, ancil - lary restraints are still in theory subject to chal - lenges by the JFTC, even after the clearance.
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