JAPAN Law and Practice Contributed by: Shigeyoshi Ezaki, Vassili Moussis, Yoshiharu Usuki, Takeshi Ishida and Azusa Hongo, Anderson Mori & Tomotsune
a long time (normally more than a few years) from the inception of the claim to resolution in civil proceedings. Judges appear to prefer set - tlement rather than issuing decisions, so they tend to encourage both parties to make a court- approved settlement. With respect to the discovery process, the Civil Litigation Act provides that a court may order the other party to submit documents upon a petition by a claimant or defendant. Documents subject to the order are limited to those listed in Article 220, items 1 to 4 of the Civil Litigation Act. However, in civil proceedings where a claimant seeks an injunction against cartel activity, a court may issue an order for the necessary documents proving the cartel activity in question be submit - ted without the limitations imposed by the Civil Litigation Act. 6.6 Attorneys’ Fees There is no law in Japan regulating attorneys′ fees, including advance payment and success fees. However, the attorneys’ ethics rules pro - vide that attorneys should charge clients fair and reasonable fees. The amount of attorneys’ fees is therefore determined by an agreement between attorneys and their clients. The amount of deposits and success fees depends on the agreement but is often calculated based on a certain ratio of the amount of a damage claim set by the agreement. 6.7 Costs/Fees Each party should in principle be liable for their own attorneys’ fees in civil proceedings in Japan. Only a small part of the fees will usually be awarded, even if a claimant wins a damage lawsuit and seeks compensation for its attor - neys’ fees. Accordingly, unsuccessful claimants will not have to bear the defendants’ legal fees
unless the defendants also filed a counterclaim for their legal fees against the claimants in the same trial (and the counterclaim was admitted). 6.8 Judicial Review or Appeal Claimants seeking compensation from cartel violators are entitled to file a lawsuit with the civil affairs division of the district courts and, if they are not satisfied with the decisions of these district courts, they may also appeal to the High Court with jurisdiction over the district court delivering the decision. An appeal to the Supreme Court may be allowed under the Civil Litigation Act in very limited cir - cumstances (for example, where the decision of the High Court might be inconsistent with the Constitution or court precedents). 7. Trends in Cartel Enforcement 7.1 Information Sharing as a Cartel Offence Information sharing does not itself necessar - ily constitute a cartel conduct under the AMA. However, where there is any collusion between competitors who hold a majority of market shares on price fixing or bid rigging through an exchange of competitively sensitive information and the collusion is likely to substantially restrain fair competition in the market, it will constitute a cartel under the AMA and the competitors will be held liable for the violation of the AMA. 7.2 Use of AI and Algorithms In its “Generative AI and Competition” discus - sion paper dated 2 October 2024, the JFTC pointed out that in some cases the use of gen - erative AI can lead to co-operative pricing. It also pointed out that it can stimulate price competi - tion through price research and pricing function.
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