JAPAN Law and Practice Contributed by: Tsuyoshi Ikeda, Aya Yasui, Hiroko Fukushima and Kohei Kohara, Ikeda & Someya
beginning of a Phase I investigation. This meas - ure was taken pursuant to the JFTC’s 2022 poli - cy to strengthen enforcement in digital markets. The JFTC also made it clear that the commence - ment of the investigation does not itself imply that any violation of the AMA has been found. 7.2 Contacting Third Parties The JFTC typically contacts third parties, such as competitors or customers, by sending writ - ten questionnaires or requesting oral interviews as a part of its review process if the planned transaction is publicly announced or the inves - tigation proceeds to the Phase II review. Also, as stated in 7.1 Third-Party Rights , a third party will be invited to submit comments in writing at the beginning of a Phase II review. The JFTC tends to make these inquiries pro - actively when it sees issues in the substantive review. In addition, the JFTC sometimes con - ducts a kind of “market test”, in which it asks for the opinions of third parties for the purpose of assessing the feasibility of proposed remedies. 7.3 Confidentiality The JFTC does not make the information avail - able to the public until the initiation of the Phase II review. Therefore, in the course of a merger review, the existence of a fact of filing – and any confidential information or business secrets consisting of filing documents, supporting docu - ments or oral guidance to the JFTC – will not be publicly disclosed if the case is cleared before going to a Phase II review. If the case is subject to a Phase II review, the JFTC invites the public to offer their written comments on the contemplated transaction, at the beginning of Phase II (see 7.1 Third-Party Rights ). A description of the transaction will be made public in such cases.
Aside from the slight chance of the JFTC issu - ing a cease-and-desist order, which will fully disclose the transaction, the JFTC announces the outcome of its review of cases subject to a Phase II review. In addition, the JFTC annually publishes a report on the major business combination cases on its website around June, which provides a summa - ry of merger review cases and serves as a useful reference. These cases are selected from among those cleared in Phase I as well as Phase II, and the parties will be contacted by the JFTC before the publication to confirm whether the publica - tion contains any confidential information. Since 2017, the JFTC also has also issued a list of the cases it has cleared on a quarterly basis. The list shows each filing date, the par - ties’ names, the date of clearance 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- operation with various overseas authorities, including the European Commission and the Federal Trade Commission and the Department of Justice in the United States. Article 43-2 of the AMA expressly provides that the JFTC may exchange information with authorities 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 information of a specific transaction to any foreign authority, it obtains the parties’ written waiver in advance.
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