JAPAN Law and Practice Contributed by: Shigeyoshi Ezaki, Vassili Moussis, Yoshiharu Usuki, Takeshi Ishida and Azusa Hongo, Anderson Mori & Tomotsune
2.9 Arguments Against Enforcement Actions Defence counsel for the target of a cartel investi - gation tend to raise legal and factual arguments by making submissions to the relevant division at the JFTC during the investigation. Defence counsel also have an opportunity to present arguments at a hearing procedure (introduced in April 2015) before the JFTC issues its final decision. 3. Leniency, Immunity and Whistle- Blower Regimes 3.1 Leniency A leniency regime has been in place in Japan since 2006. Under the current regime, there is no limitation to the number of leniency appli - cants that may obtain an exemption from (or a reduction of) surcharges, regardless of whether they apply before or after the commencement of an investigation (the “Investigation Start Date” ), which is often the date of a dawn raid. However, once the JFTC has initiated an inves - tigation, applications for leniency should be filed within 20 business days after the Investigation Start Date. Applications for leniency are filed by sending the relevant forms via email. It is the order in which these emails are received that dictates the position of the companies in the order of leniency and determines the amount of reduction offered to them. Group filing is avail - able subject to certain conditions. Applying for Leniency If the first-through-the-door whistle-blowing company applies for leniency prior to the Inves - tigation Start Date, then it is eligible for a 100% exemption from any surcharges that might oth - erwise be levied against it (according to Article
be used by the JFTC for its investigation and will be promptly returned to the company. It should be noted that this limited attorney- client privilege is only applied to administrative investigations into violations involving “unrea- sonable restraint of trade” and does not apply in criminal investigations. The privilege against self-incrimination is only available in criminal investigations into cartel conduct. This privilege cannot be invoked in administrative investigations. 2.7 Non-Cooperation Initial requests for information by the JFTC are not usually refused by individuals and compa - nies. This is because they are deemed to be obliged to co-operate with the investigators and any refusal, obstruction or evasion of the inspec - tion without justifiable reasons is therefore sub - ject to sanctions provided under Article 94 of the AMA (see 2.2 Dawn Raids/Search Warrants ). 2.8 Protection of Confidential/Proprietary Information As mentioned in 2.2 Dawn Raids/Search War- rants , the JFTC investigators are entitled to review and seize any materials they reasonably consider to be necessary for their investigation under Article 47 of the AMA. Any documents containing confidential or proprietary informa - tion can therefore also be obtained by the inves - tigators. As well as considering documents of third parties, these documents could be subject to inspection and seizure if they are located at the place targeted by the investigation. Confi - dentiality will be guaranteed by the government officials’ confidentiality obligations in line with Article 39 of the AMA.
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