JAPAN Law and Practice Contributed by: Shigeyoshi Ezaki, Vassili Moussis, Yoshiharu Usuki, Takeshi Ishida and Azusa Hongo, Anderson Mori & Tomotsune
been a few cases where the JFTC’s decisions are partially overturned by a court, such as to reduce the surcharge amount. 5.9 Timeline of Cartel Enforcement Process There is no statutory timeframe for a cartel enforcement investigation and proceeding. Although the report is old, the JFTC’s official report published in 2013 showed that the aver - age length of proceedings for cases that ended with legal actions by the JFTC was approximate - ly 14 months. However, there has been a recent trend of investigations lasting even longer, espe - cially with complex cases being investigated for 18 months or more. Companies or consumers who have suffered damages in connection with cartel behaviour are entitled to file claims for civil damages against companies that participated in the cartel. The claims are based on tort law (Article 709 of the Civil Code and Article 25 of the AMA) or a claim for unjust enrichment (Article 703 of the Civil Code). Meanwhile, no relief or compensation is applicable to governmental proceedings in con - nection with cartels. 6.2 Collective Action 6. Civil Litigation 6.1 Private Rights of Action Unlike some other jurisdictions, it is relatively rare for a company or consumer who has suf - fered from cartel conduct to bring a damage claim directly to the courts. They are more likely to choose the route of reaching a settlement with the cartel violators, although settlement like this is still relatively uncommon in Japan. In addition, there are no “class actions” in Japan. It is fair to say that, given the existence of contractual
protection and out-of-court settlement in most cartel cases, the historically low levels of dam - age claims in Japan will not change significantly in the near future. Under the Consumer Contract Law, a qualified consumer organisation has the standing to file a damage claim on behalf of consumers or vic - tims. However, to date, the collective action sys - tem has rarely been used in Japan. 6.3 Indirect Purchasers and “Passing On” Defences The “passing on” defence has so far not been used to any significant extent in private actions in Japan. Private actions such as damage claims and injunctions are handled in civil proceedings in Japan. The process applied for private actions is therefore the same as for other types of civil litigation in line with the Civil Litigation Act. Evi - dence from governmental investigations or pro - ceedings is admissible subject to the govern - ment officials’ confidentiality obligations in line with regulations under the Civil Litigation Act. In this respect, the notice concerning the materi - als that have to be provided in damage claims under the AMA are issued by the JFTC secretary general. The notice sets out the policy on how the JFTC responds to a request for these materi - als to be submitted to courts and victims. 6.5 Frequency of Completion of Litigation Most civil litigation cases, including damages lawsuits relating to cartels, are likely to end in settlement. This is partly because it usually takes 6.4 Evidence Obtained From Governmental Investigations/ Proceedings
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