The Asia-Pacific Antitrust Review 2013

Japan: Cartels

23 January 2013

Cartel regulation in Japan Cartels are prohibited in Japan as an ‘unreasonable restraint of trade’, as stipulated under the second half of article 3 of the Law No. 54 of 1947, as amended (the Anti-Monopoly Act (AMA)). Although the AMA does not include any particular provisions about extraterritorial applicability, it is generally understood that the AMA is applicable to international cartels. The position of the Japan Fair Trade Commission (JFTC) and the generally accepted view in Japan is that, even if alleged violators have no physical presence in Japan, the AMA is interpreted to apply to conduct occurring outside Japan as long as such conduct results in certain substantial effects on Japanese markets. The JFTC has been consistently vigorous in its investigation of international cartels and, following an amendment to the AMA introduced in 2002, is now able to issue ‘service by publication’ against foreign companies. ‘Service by publication’ is a method of service in which an order is deemed to be served to the recipient after a certain period of time from the date on which the JFTC posts the order on the board in front of the JFTC’s office. Accordingly, if the JFTC intends to issue a reporting order to a foreign company, it is now able to exercise its investigative powers by simply making a service by publication against such foreign company (although it is customary for the JFTC to first request that the foreign company appoint an attorney in Japan and then serve the reporting order and other proceedings through such attorney).