JAPAN Law and Practice Contributed by: Shigeyoshi Ezaki, Vassili Moussis, Yoshiharu Usuki, Takeshi Ishida and Azusa Hongo, Anderson Mori & Tomotsune
Joint research and development between rivals also has the potential to bring about cartel conduct. In light of this, the JFTC published the Guidelines Concerning Joint Research and Development Under the AMA in an attempt to prohibit the exchange of sensitive information between competitors, as this might lead to car - tels. In terms of enforcement, the JFTC has published guidelines that aim to increase understanding of its enforcement activities and policies, such as the Overview of Administrative Investigation Pro - cedures for Alleged Antitrust Cases of December 2015 (see 2.1 Initial Investigation ). In March 2023, the JFTC published Guidelines Concerning the Activities of Enterprises, etc. Toward the Realization of a Green Society Under the Antimonopoly Act, which refers to potential cartel activities in connection with green activi - ties. The JFTC typically initiates an investigation by conducting “dawn raids” . It then tends to request and conduct interviews with the persons it has identified as being the most involved in the con - duct being investigated. Interviews cover a wide range of matters, including market knowledge concerning the alleged practices and occasion - ally the JFTC will request materials be submit - ted. If materials are not submitted voluntarily, the JFTC investigator may issue a formal request in the form of “Reporting Order” . It is also worth noting that the JFTC published the Overview of Administrative Investigation Pro - 2. Early Stages of Cartel Enforcement 2.1 Initial Investigation
cedures for Alleged Antitrust Cases in Decem - ber 2015 (see 1.9 Guides Published by Gov- ernmental Authorities ). These Guidelines outline how the investigation is conducted, including the initial investigatory steps taken by investiga - tors. The Guidelines were amended in December 2020 to add that the person being interviewed by the JFTC is allowed to take a memo, on the spot, after the interview. 2.2 Dawn Raids/Search Warrants It is common for the JFTC to conduct on-site inspections of offices (known as “dawn raids” ). The legal basis for these on-site inspections is contained in Article 47 (1), item 4 of the AMA. Any refusal, obstruction or avoidance of the inspec - tion without justifiable reasons will be subject to sanctions in line with Article 94 of the AMA. Firms and employees are therefore deemed obligated to accept and co-operate with the inspection, even though the JFTC is not entitled to directly or physically exercise its power to conduct the inspection. Employees and other staff are generally allowed to continue their ordinary business during the on-site inspection, but they are required to pro - vide any materials and explanations requested by the investigators and at least one officer or employee must be present at the venue until the end of the on-site inspection (even late at night). In addition, outside counsel may be present at the on-site inspection unless this will affect the smooth running of the investigation. It should nonetheless be noted that there is no require- ment to wait for the arrival of outside counsel before initiating the investigation and the JFTC will therefore typically not wait. There is no limitation to the scope of the inspec - tion or to the sort of documents that can be inspected and retained by the investigators
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