JAPAN Law and Practice Contributed by: Tsuyoshi Ikeda, Aya Yasui, Hiroko Fukushima and Kohei Kohara, Ikeda & Someya
While the JFTC believes that co-operation with other jurisdictions will be beneficial in multi-juris - diction filing cases, as a practical matter, whether the JFTC works closely with other jurisdictions depends on the specific case and regulators. In its review of Korean Air’s acquisition of Asiana Airlines (referred to in 5.7 Prohibitions and Rem- edies for Foreign-to-Foreign Transactions ), the JFTC engaged in information exchange with several foreign competition authorities. These included the Australian Competition and Con - sumer Commission (ACCC), the UK Competition and Markets Authority (CMA), the United States Department of Justice (DOJ), the European Commission, the Korea Fair Trade Commission (KFTC) and the Chinese State Administration for Market Regulation (SAMR). The exchanges were conducted under existing co-operation frame - works. 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 combina - tion after the amendment of the AMA that pro - vides 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. Considering 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 Litiga - tion Act. 8.3 Ability of Third Parties to Appeal Clearance Decisions There is no precedent in which a third party has successfully appealed against a clearance deci - sion 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 invest - ment specified by Cabinet Order shall notify the Minister of Finance and the pertinent minister for the business in advance of the business pur - pose, the amount and time of making the invest - ment and other items regulated in the Order. The Cabinet Order determines the list of business sectors for which prior notification is mandatory.
325 CHAMBERS.COM
Powered by FlippingBook