JAPAN Law and Practice Contributed by: Shigeyoshi Ezaki, Vassili Moussis, Yoshiharu Usuki, Takeshi Ishida and Azusa Hongo, Anderson Mori & Tomotsune
of the investigation. A compulsory procedure (eg, an “Order of Submission” ) is also available under Article 47 (1), item 3 of the AMA if the companies do not co-operate with the request. However, this compulsory procedure does not mean that the JFTC has the authority to exercise a direct physical power to seize documentary evidence. Instead it means that failing to comply with the Order of Submission may be subject to criminal sanctions and in that sense the Order of Submission is considered to be compulsory. There is no difference between the company being investigated and a third party with regard to the JFTC’s request for documentary informa - tion. 4.3 Obtaining Evidence From Entities Outside the Jurisdiction While the JFTC can do so, it will not usually investigate companies or individuals located outside Japan. However, as a matter of law, some technical issues could arise in terms of how the JFTC delivers an Order of Submission to companies or individuals outside the jurisdic - tion in line with Articles 70-6 and 70-7 of the AMA and Article 108 of the Civil Procedure Law). In practice, where a server containing relevant data is located overseas, the JFTC sometimes requests companies located in Japan to pro - duce data contained in that server as long as the companies have access to it from Japan. While the JFTC cannot force them to produce certain data under the AMA, many companies which have filed a leniency application and are therefore obliged to co-operate with the JFTC are likely to submit the data voluntarily. 4.4 Domestic Inter-Agency Co-Operation The JFTC always co-operates with the Public Prosecutor’s Office in criminal cases. This is
because criminal actions can only be brought against companies (or their officers and employ - ees) by the JFTC after a criminal accusation has been submitted to the Public Prosecutor’s Office. Accordingly, it is common for a few prosecutors to be seconded to the JFTC for the purpose of close communication and effective enforce - ment. In this respect, the JFTC and the Public Prosecutor’s Office jointly conduct dawn raids if they seek to impose criminal penalties against the companies that have participated in a cartel. Depending on the case, the JFTC will also occa - sionally co-operate with other agencies or min - istries in Japan. For example, the JFTC will co- operate with the Ministry of Land, Infrastructure, Transport and Tourism in antitrust cases involv - ing the transport sector. In these cases, the JFTC will not exchange the confidential infor - mation of parties being investigated with those agencies or ministries unless prior approval has been obtained from them. 4.5 International Inter-Agency Co- Operation The JFTC usually co-operates with enforcement agencies in foreign jurisdictions in international cartel cases. However, in light of the fact that most cases the JFTC deals with are domestic cartel or bid rigging cases, this international co- operation is rather limited. The AMA incorporates provisions allowing the JFTC to exchange information with competition authorities in different jurisdictions. The JFTC actively works with other major competition authorities on specific cases, including through the exchange of information with its foreign counterparts. It is entitled to share “information that is deemed helpful and necessary for the execution performance of the foreign competi- tion authority’s duties” with foreign competition
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