JAPAN Law and Practice Contributed by: Shigeyoshi Ezaki, Vassili Moussis, Yoshiharu Usuki, Takeshi Ishida and Azusa Hongo, Anderson Mori & Tomotsune
1. Cartels Law and Regulation 1.1 Legal Bases The Anti-Monopoly Act (the “AMA” ) governs car - tel behaviour or effects in Japan. 1.2 Regulatory/Enforcement Agencies and Penalties The Japan Fair Trade Commission (the “JFTC” ) is solely responsible for enforcing the AMA and for conducting investigations into suspected cartel cases. If the JFTC finds that these activi - ties have taken place, it is authorised to issue cease-and-desist orders and impose adminis - trative fines through surcharge payment orders. In terms of criminal enforcement, the Public Prosecutor’s Office is in charge of prosecution. However, it can only indict parties for criminal offences after the JFTC submits a criminal accu - sation to the office under Article 96 of the AMA. Companies and individuals can both be crimi - nally liable for participating in a cartel. Please refer to 5.4 Sanctions and Penalties in Criminal Proceedings for further details. When it comes to civil liability, the primary form of sanctions issued by the JFTC in administra - tive proceedings are cease-and-desist orders and surcharge payment orders in line with Arti - cles 7 and 7-2 of the AMA. Please refer to 5.5 History of Criminal Sanctions for further details. There are no civil judgment awards in Japan. 1.3 Private Enforcement Please refer to 6.1 Private Rights of Action . 1.4 “Cartel Conduct” Cartels are regulated as an “unreasonable restraint of trade” , which is prohibited under Article 3 of the AMA. The term “unreasonable
restraint of trade” is defined in Article 2 (6) of the AMA as “business activities, by which any enterprise – by contract, agreement or any other means irrespective of its name – in concert with other enterprises, mutually restrict or conduct their business activities in such a manner as to fix, maintain or increase prices or to limit produc - tion, technology, products, facilities or counter- parties, thereby causing – contrary to the public interest – a substantial restraint of competition in any particular field of trade” . Joint Actions Joint actions between rivals do not necessarily amount to a breach of the AMA. For example, the AMA does not apply to certain conduct by a partnership (including a federation of partner - ships) that complies with certain requirements stipulated in Article 22 of the AMA. This provision is aimed at facilitating mutual support to small- scale enterprises and consumers. In another instance, in line with the Guidelines Concerning the Activities of Trade Associations Under the AMA (see 1.9 Guides Published by Governmental Authorities ), competitors are allowed jointly to collect historic prices for com - moditised goods through a trade association and offer general information on the market to its members as well as consumers. Price Fixing It is generally accepted in Japan that price fixing, output restrictions, agreements on product char - acteristics and other forms of competitive activ - ity among competitors are referred to as “car- tels” . Bid rigging, meanwhile, traditionally falls into another category of “unreasonable restraint of trade” , even though almost the same antitrust theory as “cartels” can be applied to bid rigging.
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