JAPAN Law and Practice Contributed by: Shigeyoshi Ezaki, Vassili Moussis, Yoshiharu Usuki, Takeshi Ishida and Azusa Hongo, Anderson Mori & Tomotsune
1.7 Principles of Comity As a matter of law, the AMA does not contain any provision regarding principles of comity and there has not been a precedent that explicitly mentions the application of principles of com - ity in relation to the enforcement of the AMA. However, in practice, principles based on the concept of comity are embedded in bilateral agreements between the Japanese government and other governments (including governments in the EU, the US and Canada). The bilateral agreements normally require both parties to pay consideration to the other party if their enforcement could have an impact on the other party’s jurisdiction. However, this consid - eration is subject to each authority’s discretion There are a limited number of cartel enforcement cases in Japan each year. The number of bid rig - ging and price-fixing cases has been roughly the same in recent years. The JFTC mainly seems to focus on domestic cartels and it is widely believed that many of the cartel investigations are commenced based on factual evidence sub - mitted through the leniency programme. 1.9 Guides Published by Governmental Authorities Some guidelines are not specific to cartels but nonetheless deal with certain issues relating to cartels. For example, as trade associations in Japan are often considered to be liable for facili - tating cartel conduct among their members, the JFTC has published several guidelines for the prevention of anti-competitive conduct, such as the Guidelines Concerning the Activities of Trade Associations Under the AMA. in line with principles of comity. 1.8 Enforcement Priorities
Exemptions Specific Japanese laws permit certain exemp - tions from the application of the AMA when it comes to cartel conduct. For example, under the Japanese Aviation Law, aviation companies can build an alliance with other companies in spe - cific circumstances. Joint conduct by insurance companies operating in the aviation or nuclear industries is similarly exempt from the applica - tion of the AMA under specific conditions speci - fied by the Insurance Business Act. 1.5 Limitation Periods The JFTC’s ability to issue a cease-and-desist order for infringements of the AMA is subject to a limitation period of seven years from the end of the infringement action under Article 7-2 of the AMA. The limitation period for issuing a sur - charge payment order is also seven years from the end of the implementation period according to Article 7-8, paragraph 6 of the AMA. 1.6 Jurisdiction It is generally understood that the AMA can apply to any firm or individual, even those with no physical presence in Japan, if the conduct in which they engage has substantial anti-compet - itive effects on the Japanese market. This prin - ciple was confirmed by the Supreme Court of Japan in the Samsung SDI (Malaysia) Bhd case of 2017, which involved a price-fixing cartel on television cathode-ray tubes taking place out - side Japan. The Supreme Court held that Japanese antitrust law will still apply even if the cartel infringement took place outside Japan, provided the cartel has had an anti-competitive effect in the Japa - nese market (for example, where the cartel is targeted at transactions with Japanese-based companies).
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