JAPAN Law and Practice Contributed by: Shigeyoshi Ezaki, Vassili Moussis, Yoshiharu Usuki, Takeshi Ishida and Azusa Hongo, Anderson Mori & Tomotsune
are not typically allowed to be present at the interview or interrogation unless investigators determine that lawyers or third persons should be present to, for example, assist with transla - tion in order to ensure the smooth implementa - tion of an interview with a foreign national. The JFTC does not typically raise the issue of whether individuals should obtain separate legal counsel from their employers. It is worth noting that separate legal counsel for individuals might be necessary in a criminal investigation where companies and individuals could both be sub - ject to criminal punishment and there are poten - tial conflicts of interest. The principal initial steps that defence counsel should undertake during the preliminary phase of the investigation include intensive interviews with the relevant employees and an exten - sive review of the relevant documents in order to expeditiously identify whether the alleged infringement actually took place. This internal investigation is indispensable when it comes to securing immunity based on the JFTC’s leniency programme, given that, in Japan, the timing of the initial leniency application plays a crucial role in determining the order of the leniency appli - cations and therefore the amount by which the administrative fine can be reduced under the leniency programme (see 3.1 Leniency ). 2.5 Obtaining Evidence/Testimony Documentary evidence is usually first obtained by the JFTC at the alleged companies’ offices during the course of “dawn raids” . It then sub - sequently asks the companies to submit the relevant documents from time to time and also delivers “Reporting Order” in a timely manner so as to secure precise information on the alleged violation to enable it to prepare the issuing of a
cease-and-desist order and surcharge payment order. It is widely believed that a large portion of the investigations against cartels by the JFTC are triggered by information submitted through leni - ency applications. 2.6 Attorney-Client and Other Privileges Unlike many common law jurisdictions, “attor- ney-client privilege” is limited in Japan. This lim - ited attorney-client privilege was introduced by way of the JFTC regulations and guidelines in December 2020. The rationale behind introduc - ing this limited attorney-client privilege is that protecting communications between companies and outside attorneys qualified in Japan con - cerning investigations against “unreasonable restraints of trade” will result in a more efficient surcharge system. Communications from in- house counsel do not normally benefit from this limited type of attorney-client privilege. This limited attorney-client privilege will only be available in certain circumstances. When a company under investigation receives a submis - sion order for certain documents from the JFTC officers during a dawn raid, the company can claim that the documents are not subject to the order because attorney-client communications are contained in them. In these circumstances, JFTC officers will order the documents be submitted, seal them and place them under the control of the Determina - tion Officers at the Secretariat of the JFTC, which is independent from the Investigation Bureau. The Determination Officers will then decide whether the documents at issue satisfy the con - ditions for the attorney-client privilege provided under the new regulations or guidelines. If the conditions are satisfied, the documents will not
185 CHAMBERS.COM
Powered by FlippingBook