Private Litigation 2018

Last verified on Wednesday 12th September 2018

Japan

Koki Yanagisawa
Nagashima Ohno & Tsunematsu

    Effect of public proceedings

  1. 1.

    What is your country’s primary competition authority?

  2. The Japan Fair Trade Commission (the JFTC), which was established by the Act on Prohibition of Private Monopolisation and Maintenance of Fair Trade (the Antimonopoly Act), is the primary competition authority in Japan.

  3. 2.

    Does your competition authority have investigatory power? Can it bring criminal proceedings based on competition violations?

  4. The JFTC has investigatory power under the Antimonopoly Act. While the public prosecutors, as opposed to the JFTC, have the sole power to bring criminal proceedings to the court under the Code of Criminal Procedure, the JFTC has an exclusive power to file an accusation for certain serious criminal offences under the Antimonopoly Act (eg, private monopolisation, unfair restraint of trade) with the Prosecutor General and the public prosecutors are not entitled to bring such criminal case to the court without the JFTC’s accusation.

  5. 3.

    Can private antitrust claims proceed parallel to investigations and proceedings brought by competition authorities and criminal prosecutors and appeals from them?

  6. Private antitrust claims such as damage claims based on general tort under the Civil Code or injunction claims can be brought to the court regardless of the status of the investigations and proceedings brought by the JFTC and public prosecutors. Having said that, claims for compensation for damages caused by the conduct that constitutes a private monopolisation, an unreasonable restraint of trade or an unfair trade practice in violation of the Antimonopoly Act can be made based on the strict liability under article 25 of the same and such claims may be submitted to the court only after the JFTC’s cease and desist order or an administrative surcharge payment order against the aforementioned conduct becomes irrevocable.

  7. 4.

    Is there any mechanism for staying a stand-alone private claim while a related public investigation or proceeding (or an appeal) is pending?

  8. There is no mechanism for staying a stand-alone private claim under Japanese law. Plaintiffs are allowed to continue the court proceedings for stand-alone private claims regardless of the status of the related public investigations or proceedings.

  9. 5.

    Are the findings of competition authorities and court decisions binding or persuasive in follow-on private antitrust cases? Do they have an evidentiary value or create a rebuttable presumption that the competition laws were violated? Are foreign enforcers’ decisions taken into account? Can decisions by sector-specific regulators be used by private claimants?

  10. In cases where a plaintiff brings a damage claim based on article 25 of the Antimonopoly Act, which may only be filed after the JFTC’s cease and desist order or an administrative surcharge payment order becomes irrevocable, the Antimonopoly Act prohibits the defendant from denying their wilfulness or negligence for the violation of the Antimonopoly Act found by those JFTC orders or the court judgment affirming such orders.

    Furthermore, it is generally considered that the findings of violation of the Antimonopoly Act by the JFTC orders which became irrevocable through judicial proceedings or administrative hearing procedures or civil court proceedings create a rebuttable presumption that the Antimonopoly Act was violated.

    As a matter of practice, even foreign enforcers’ decisions could be taken into account by the court in charge of private antitrust cases to some extent in determining whether the Antimonopoly Act was violated, particularly when the facts and evidence are common to both the foreign case and the Japanese case. Private claimants may use the decisions by sector-specific regulators in order to support their arguments.

  11. 6.

    Do immunity or leniency applicants in competition investigations receive any beneficial treatment in follow-on private antitrust cases?

  12. No. Leniency applicants in competition investigations are not entitled to receive any beneficial treatment in follow-on private antitrust cases. There is no concept of immunity under Japanese criminal investigations and proceedings. While the recent amendment to the Code of Criminal Procedures has introduced the immunity application programme for criminal violation of the Antimonopoly Act, immunity applicants will not be entitled to receive any beneficial treatment in follow-on private antitrust cases.

  13. 7.

    Can plaintiffs obtain access to competition authority or prosecutors’ files or the documents the authorities collected during their investigations? How accessible is information prepared for or during public proceedings by the authority or commissioned by third parties?

  14. Under the Antimonopoly Act, plaintiffs, as victims of alleged violation of the Antimonopoly Act, may request JFTC for review and reproduction of the documents submitted to JFTC’s administrative hearing procedures where an entrepreneur disputes the validity of a cease and desist order and/or an administrative surcharge payment order. Such documents include legal briefs and evidentiary documents submitted by JFTC administrative investigator as well as the entrepreneur, but do not include documents within the files of JFTC investigators which were obtained or created during the course of their investigations. Having said that, the JFTC may provide plaintiffs with access to certain documents collected, including those collected from third parties, during their investigations, through the request by the court if a damage claim is filed in the court, except for certain information such as trade secrets and privacy information. Even the attorney-client privileged documents, which would be subject to protection in other jurisdictions but are not protected in Japan, may be produced for judicial review.

    Furthermore, any person is allowed to review the case record of the civil court proceedings where the validity of JFTC’s cease and desist orders and administrative surcharge payment orders are challenged by entrepreneurs and any person who has legal “interests” is allowed to obtain copy of the case record including briefs and evidence submitted by JFTC, which may include documents that JFTC collected during their investigations. Plaintiffs or potential plaintiffs for private antitrust claims are likely to be included in such person who has legal interests and may have access to the documents collected during the JFTC’s investigations. While the entrepreneur, as a party to the said civil court proceedings, is entitled to file a petition requesting the court not to disclose the documents to the third parties, the scope of documents subject to such petition is limited to personal information and trade secrets.

    In addition, plaintiffs, as victims of alleged violation of the Antimonopoly Act, may request JFTC for review and reproduction of the documents submitted to JFTC’s administrative hearing procedures where an entrepreneur disputes the validity of a cease and desist order or an administrative surcharge payment order. 

  15. 8.

    Is information submitted by leniency applicants shielded from subsequent disclosure to private claimants?

  16. The JFTC has a policy under which it will not disclose information submitted by leniency applicants unless the applicant wishes to disclose such information. Such information may be excluded from the information subject to plaintiffs’ request for review and reproduction of documents submitted to JFTC administrative hearing procedures and may also be excluded from the information subject to the court’s request for access to the documents explained in question 7.

  17. 9.

    Is information submitted in a cartel settlement protected from disclosure?

  18. There is no concept of cartel settlement under public proceedings in Japan at this time. While the commitment procedure, which is a system to resolve alleged violations of Antimonopoly Act voluntarily by consent of entrepreneurs, will be introduced pursuant to a partial amendment to the Antimonopoly Act included in the Act to Amend the Trans-Pacific Partnership Agreement Related Laws, such commitment procedure will not apply to cartel conducts.

    For other violations of the Antimonopoly Act subject to the commitment procedure, the JFTC’s draft guideline stipulates that, if the JFTC determines to render a cease and desist order or administrative surcharge payment order at the end of the day, the information submitted in the commitment procedure may be used by the JFTC as evidence to support such orders.

  19. 10.

    How is confidential information or commercially sensitive information submitted by third parties in an investigation treated in private antitrust damages claims?

  20. The JFTC restricts access to documents that include trade secrets or privacy information in response to plaintiffs’ request for review and reproduction of documents submitted to the JFTC administrative hearing procedures and the court’s request for access to the documents as explained in question 7. Furthermore, the JFTC may also impose conditions that are deemed proper in response to plaintiffs’ request for review and reproduction of documents submitted to the JFTC administrative hearing procedures. For instance, the JFTC blacks out confidential information to the extent necessary before disclosure of the documents.

    In a case where documents including personal information or trade secrets of third parties collected during the course of investigations are submitted by JFTC to the civil court proceedings where the validity of JFTC’s cease and desist orders and administrative surcharge payment orders are challenged by entrepreneurs, the parties to such proceedings are entitled to file a petition requesting the court not to disclose the personal information and trade secrets to any third parties.

    Commencing a private antitrust action

  21. 11.

    On what grounds does a private antitrust cause of action arise?

  22. Private antitrust cause of action arises based on a defendant’s conduct in violation of the Antimonopoly Act such as a private monopolisation, an unreasonable restraint of trade or an unfair trade practice.

  23. 12.

    What forms of monetary relief may private claimants seek?

  24. Private claimants may seek compensation for damage arising from the violation of the Antimonopoly Act as monetary relief. A private action based on recovery of unjust enrichment may be available depending on circumstances.

  25. 13.

    What forms of non-monetary relief may private claimants seek?

  26. Private claimants may seek an injunction suspending or preventing infringement by certain conducts in violation of the Antimonopoly Act as non-monetary relief.

  27. 14.

    Who has standing to bring claims?

  28. Any person who suffered damage by the conduct that constitutes a private monopolisation, an unreasonable restraint of trade or an unfair trade practice in violation of the Antimonopoly Act is entitled to bring an action to the court on the grounds of either (i) strict reliability under article 25 of the Antimonopoly Act, or (ii) general tort under article 709 of the Civil Code. Even indirect purchasers have legal standing to file a lawsuit to claim damages arising from a cartel in violation of the Antimonopoly Act.

    A private action to recover unjust enrichment based on articles 703 and 704 of the Civil Code may be available, depending on circumstances.

    Under the Antimonopoly Act, any person whose interests are infringed or are likely to be infringed by violation of article 8, Item 5 (ie, activities by a business association that cause a member entrepreneur to employ unfair trade practices) or article 19 (ie, unfair trade practices by an entrepreneur) is entitled to demand suspension or prevention of such infringement from an entrepreneur or a business association if such person suffers or is likely to suffer material damages by such conducts.

  29. 15.

    In what fora can private antitrust claims be brought in your country?

  30. Private antitrust claims, such as claims for compensation for damage based on general tort under article 709 of the Civil Code and claims for injunction, may be brought in district courts in accordance with the Code of Civil Procedure in principle, while Tokyo District Court is the court of first instance that has the exclusive jurisdiction as the court of first instance on claims for compensation for damage based on the strict liability under article 25 of the Antimonopoly Act.

  31. 16.

    What are the jurisdictional rules? If more than one forum has jurisdiction, what is the process for determining where the claims are heard?

  32. The Code of Civil Procedure provides the basic jurisdictional rules. For instance, a court having jurisdiction over the location of a defendant’s principal office or domicile has jurisdiction over claims brought against the defendant. A court having jurisdiction over the place of violation of the Antimonopoly Act also has jurisdiction over claims based on such violation. Furthermore, the Antimonopoly Act provides that if an action for injunction is brought in a local district court, certain major district courts also have jurisdiction and the case may be transferred to such major district court, and that, as explained in question 15, the Tokyo District Court has the exclusive jurisdiction on claims for compensation for damage under article 25 of the Antimonopoly Act.

    If more than one court has jurisdiction, a claimant may choose the court where the claims are heard, in principle.

  33. 17.

    Can claims be brought based on foreign law? If so how does the court determine what law applies to the claim?

  34. Under Japanese choice-of-law rules, claims can be brought to Japanese courts based on foreign law if the court determines that the result of the relevant tortious act has occurred in the foreign jurisdiction. However, if facts to which the foreign law should be applied do not constitute a tort under Japanese law, no claim under the foreign law may be made for damages or any other remedies. Even if facts to which the foreign law should be applied constitute a tort both under the foreign law and Japanese law, the victim may make a claim only for damages or any other remedies that may be permitted under Japanese law.

  35. 18.

    Give details of any preliminary requirement for starting a claim. Must plaintiffs post security or pay a filing fee? How is service of claim affected?

  36. A plaintiff must submit to the court a complaint with a description of the claim sought as well as the cause of action. A plaintiff must pay a filing fee, the amount of which is determined based on the amount of claim sought (eg, a fee of 50,000 yen must be paid for a claim in the amount of 10 million yen). A filing fee for claim for injunction will be determined by the amount of profit to be achieved by the injunction, which will be determined by the court depending on circumstances.

    For antitrust injunction claims, the court may order the plaintiff to furnish an adequate security deposit at the request of the defendant in order to prevent an abuse of such right.

    A complaint must be served on the defendant in order for the court proceedings to commence.

  37. 19.

    What is the limitation period for private antitrust claims?

  38. Damage claims must be initiated within (i) 20 years from the date on which the alleged violation first occurred, or (ii) three years from the date when the plaintiff first became aware of the alleged violation, whichever period may elapse earlier. Damage claims under article 25 of the Antimonopoly Act must be initiated within three years from the date when the relevant cease and desist order or administrative surcharge payment order became irrevocable.

  39. 20.

    Are those time limits procedural or part of the substantive law? What is the effect of their expiry?

  40. The time limits are part of the substantive law. The court may not uphold damage claims after the expiration of the 20-year period explained in question 19. On the other hand, even after the expiration of the three-year period explained in question 19, the court may uphold damage claims if the defendant does not bring the defence of such expiration.

  41. 21.

    When does the limitation period start to run?

  42. Please see question 19.

  43. 22.

    What, if anything, can suspend the running of the limitation period?

  44. The running of the limitation period can be suspended upon (i) filing of a lawsuit on the merits based on the subject claim with the court; (ii) filing of a petition for attachment, provisional seizure, or provisional disposition based on the subject claim with the court; or (iii) any acknowledgment of the subject claim by the defendant.

  45. 23.

    What pleading standards must the plaintiff meet to start a stand-alone or follow-on claim?

  46. A plaintiff must describe causes of action in a complaint to start a claim. Specifically, for claiming compensation for damage under general tort law, a plaintiff must plead (i) illegality of the conduct at issue, (ii) occurrence of damage (the amount thereof), (iii) causal relationship between the illegal conduct (ie, violation of the Antimonopoly Act) and the damage, and (iv) negligence or wilfulness of the defendant. For claiming damages under article 25 of the Antimonopoly Act, it is not necessary for a plaintiff to plead the negligence or wilfulness of the defendant.

  47. 24.

    Is interim relief available? What must plaintiffs show for the court to grant interim relief?

  48. Generally, plaintiffs must show that there is a “necessity” for the interim relief, in addition to the claims to be protected, based on prima facie evidence. The court will require that plaintiffs provide security deposit in advance of the rendition of interim relief.

  49. 25.

    What options does the defendant have in responding to the claims and seeking early resolution of the case (eg, answer, counterclaim, motion to dismiss, summary judgment)?

  50. In responding to the claims, the defendant is required to submit an answer to complaint, which includes a request to dismiss the claims, agreement or disagreement with each of the plaintiff’s arguments, and the defendant’s counterarguments against the plaintiff’s factual and legal arguments. In order to seek early resolution of the case, the defendant may request the court to dismiss the claims due to reasons other than those on the merits such as lack of jurisdiction and lack of standing. The defendant may file a counterclaim, which is related to the claims brought by the plaintiff, with the same court.

    Disclosure/discovery

  51. 26.

    What types of disclosure/discovery are available? Describe any limitations and the courts' usual practice in ordering disclosure/ discovery.

  52. Unlike in common law jurisdictions, there is no comprehensive discovery scheme available under Japanese law. While the civil court proceedings are pending, a party may request the court to order the other party or a third party to produce particular documents, with certain limitations. For instance, under the Code of Civil Procedure, there is no obligation to disclose (i) a document relating to matters for which the holder or a certain related person is likely to be subject to criminal prosecution or conviction, (ii) a document concerning a secret in relation to a public officer’s duties, which is, if produced, likely to harm the public interest or substantially hinder the performance of public duties, (iii) a document containing any fact which certain professionals (eg, a doctor, an attorney at law, a registered foreign lawyer) have learnt in the course of their duties and which should be kept secret, (iv) a document containing matters concerning technical or professional secrets, or (v) a document prepared exclusively for use by the holder.

  53. 27.

    How do the courts treat confidential information that might be required to be disclosed or that is responsive to a discovery proceeding? Is such information treated differently for trial?

  54. As explained in question 26, certain types of confidential document are excluded from the documents subject to the court order to produce documents under the Code of Civil Procedure. Furthermore, while any person is allowed to review the case record of the civil proceedings, including the documents (briefs and evidence) submitted by the parties, the parties are entitled to file a petition requesting the court not to disclose private information and trade secrets to any third party.

  55. 28.

    What protection, if any, do your courts grant attorney–client communications or attorney materials? Are any other forms of privilege recognised?

  56. Unlike in common law jurisdictions, there is no concept of attorney-client privilege or other privilege to protect attorney-client communication or attorney materials under Japanese law. While attorneys have the right to refuse testimony concerning the communication with the client and are not obliged to produce the documents exchanged with the clients, clients are granted no right to protect their communications with their attorneys.

    Trial

  57. 29.

    Describe the trial process.

  58. Japanese civil proceedings, which is similar to the trial process in the common law jurisdictions, consist mainly of oral proceedings. At the first date of oral proceedings, the plaintiff’s complaint and the defendant’s answer are officially submitted to the court. In the subsequent oral proceedings, both parties submit their factual and legal arguments and evidence supporting the arguments before the court. While the facts admitted by the opposing party require no evidence and shall bind the court and both parties, the facts denied by the opposing party must be proved by evidence. Through such oral proceedings, the judge will identify the material issues in dispute for which the court should conduct fact-findings through the examination of witnesses. (For such purpose of identifying the issues, the court may take procedures to extensively discuss issues and evidence with the parties, if appropriate.) The court then holds examination of witnesses. In general, witnesses are subject to cross-examination in relation to the matters raised during direct examination. Even judges may supplementarily examine witnesses. After concluding the examination of witnesses, the court closes the oral proceedings and then moves to rendition of judgment.

  59. 30.

    How is evidence given or admitted at trial?

  60. Evidence must be submitted by the parties to the court and no evidence that is not submitted to the oral proceedings may be the basis of the judgment to be rendered by the court. Authenticity of documentary evidence must be attested in order for the evidence to be admissible as the basis of the judgment. There are no particular limitations on the forms of evidence that may be admissible, and no hearsay rules are applied to evidence in Japanese civil proceedings.

  61. 31.

    Are experts used in private antitrust litigation in your country? If so, what types of experts, how are they used, and by whom are they chosen or appointed?

  62. Expert opinions are sometimes used in private antitrust litigation in order to prove the amount of damage arising from price cartels and bid riggings. For instance, plaintiffs sometimes choose economists or economic consultants as experts and obtain their opinions providing analysis on how and to what extent the cartel or bid rigging gave impact on the price of the relevant product so that they can submit such opinion to the court as evidence.

  63. 32.

    What must private claimants prove to obtain a final judgment in their favour?

  64. In order to obtain a final judgment in favour, private claimants must at least prove the facts consisting of the causes of action. It is not necessary to prove the facts which have been admitted by the defendant.

    For damage claims based on the violation of the Antimonopoly Act, plaintiffs must prove: (i) the illegality of the defendant’s conduct; (ii) damages; (iii) causal relationship between the damage and the illegal conduct; and (iv) negligence or wilfulness of the defendant. It is not necessary to prove negligence or wilfulness of the defendant when claiming damages based on article 25 of the Antimonopoly Act.

    For claims for injunction based on article 24 of the Antimonopoly Act, plaintiffs must prove that: (i) the defendant’s conduct falls under certain types of unfair trade practices in violation of article 8, Item 5 or article 19, (ii) plaintiffs’ interests are infringed or are likely to be infringed, (iii) the plaintiffs suffer or are likely to suffer “material” damages by such conduct.

  65. 33.

    Are there any defences unique to private antitrust litigation (eg, Noerr-Pennington defence, passing-on defence)? If so, which party bears the burden of proving these defences?

  66. A private monopolisation and an unreasonable restraint of trade prohibited by the Antimonopoly Act may, theoretically, be justified if they are not “contrary to the public interest”. While plaintiffs bear the burden of proving such requirement, the court usually find that the “contrary to the public interest” requirement is fulfilled as long as the plaintiff proves that defendant’s acts in question have caused a “substantial restraint of competition”.

  67. 34.

    How long do private antitrust cases usually last (not counting appeals)?

  68. While it depends on the complexity of each case, a minimum of one year is usually required for the court to render the judgment for the first instance in ordinary civil cases. As such, private antitrust cases could last for more than two years because the judges are not necessarily familiar with the antitrust laws/regulations and the issues to be examined by the court, including the issue of damages, tend to be complicated.

  69. 35.

    Who is the decision-maker at trial?

  70. The professional judge is the decision-maker at the civil court proceedings. No jury system is adopted in Japanese civil court proceedings.

    Damages, costs and funding

  71. 36.

    What is the evidentiary burden on plaintiffs to quantify the damages?

  72. Plaintiffs bear the burden of proving the amount of damage in principle. As to the standard of proof, plaintiffs must prove that the amount of damage is “highly probable”. Having said that, the burden of proof is relaxed to some extent as described in question 37, taking into consideration the difficulty of calculating the precise amount of damage.

  73. 37.

    How are damages calculated?

  74. For damages in cartel cases, one of the major methods is to calculate the difference between (i) the price of the relevant product immediately before the alleged cartel and (ii) the price of the relevant product actually applied in the transaction at issue.

    When calculating the amount of damage suffered by direct purchasers, passing on value (ie, the amount that direct purchasers have collected from indirect purchasers) will theoretically be taken into account. In cases involving both direct and indirect purchaser(s), it tends to be practically difficult to prove the amount of damage as well as any causal relationship between the violation at issue and the alleged damages.

    For damage claims based on article 25 of the Antimonopoly Act, the court may seek the JFTC’s opinion regarding the amount of damage. Article 248 of the Code of Civil Procedure allows the court to determine a reasonable amount of damage if it is extremely difficult to prove the precise amount thereof due to the nature of the damage. The court may determine the amount of damage arising from the violation of the Antimonopoly Act with the assistance of these schemes.

    Unlike in the United States, Japanese law does not provide for collection of treble damages or punitive damages.

  75. 38.

    Does your country recognise joint and several liabilities for private antitrust claims?

  76. Yes. Private claimants can bring a claim against multiple defendants who committed unfair restraint of trade or joint refusal to deal based on the theory of joint and several liability.

  77. 39.

    Can a defendant seek contribution or indemnity from other defendants, including leniency applicants, or third parties? Does the law make a clear distinction between contribution and indemnity in antitrust cases?

  78. A defendant can bring a claim for “contribution” against other defendants who assume joint and several liability. While Japanese law neither provides definition of contribution and indemnity nor makes a clear distinction between the two, the nature of the claim is similar to contribution in common law jurisdictions.

  79. 40.

    Can prevailing parties recover attorneys’ and court fees and other costs? How are costs calculated?

  80. In general, a prevailing party can recover the court costs, which include filing fees, fees and travel expenses paid to witnesses and interpreters.

    As to attorneys’ fees, Japanese courts do not grant prevailing parties a right to recover such fee, in principle. However, in cases where compensation for damage is sought based on tort, the court tends to allow a prevailing party to recover 10 per cent of the amount of damage claim affirmed by the court as the attorneys’ fees. Also, there is a scholarly discussion that attorneys’ fees should be recovered by prevailing parties even in injunction cases.

  81. 41.

    Are there circumstances where a party’s liability to pay costs or ability to recover costs may be limited?

  82. If it is difficult to determine which party is prevailing, the court may order both parties to bear the court costs. Attorneys’ fees can only be recovered by prevailing parties in limited cases as explained in question 40.

  83. 42.

    May attorneys act for claimants on a contingency or conditional fee basis? How are such fees calculated?

  84. Attorneys can act for claimants on a contingency or conditional fee basis in Japan. While the calculation formula for contingency or conditional fees solely depends on an agreement between the attorney and the client, it is relatively common to calculate the contingency or conditional fee by multiplying a certain percentage by the amount of claim sought and the amount of claim affirmed by the court.

  85. 43.

    Is litigation funding lawful in your country? May plaintiffs sell their claims to third parties?

  86. Plaintiffs may sell their claims to third parties; however, it is prohibited to sell the claim primarily for the purpose of having another person file any lawsuit. There is no legislation prohibiting or specifically regulating litigation funding in Japan at this moment. However, if the litigation funding involves any actions to provide legal advice by any person other than Japanese qualified attorneys or any actions to introduce attorneys to clients, such actions may be considered as a violation of Attorney Act.

  87. 44.

    May defendants insure themselves against the risk of private antitrust claims? Is after-the-event insurance available for antitrust claims?

  88. We are not aware of any insurance scheme particularly intended to cover the risk of private antitrust claims in Japan. It is common for directors to insure themselves against the risk of shareholders derivative lawsuit and such insurance could cover the risk of derivative lawsuit based on the violation of antitrust law.

    Appeal

  89. 45.

    Is there a right to appeal or is permission required?

  90. A claimant has a right to file an appeal against a district court judgment with a High Court having jurisdiction over the case (koso appeal), and it is possible to further file an appeal against a High Court judgment with the Supreme Court (jokoku appeal). A jokoku appeal and a petition for admission of a jokoku appeal to the Supreme Court can be made for limited reasons under the Code of Civil Procedure.

  91. 46.

    Who hears appeals? Is further appeal possible?

  92. Please see question 45.

  93. 47.

    What are the grounds for appeal against a decision of a private enforcement action?

  94. No specific grounds for an appeal to a High Court (koso appeal) are provided under the Code of Civil Procedure and the grounds include error in fact-findings and application of law in the judgement. An appeal to the Supreme Court (jokoku appeal) can be made on the ground that the High Court judgment contains a violation of the Constitution or on the ground that the procedures in the lower court contains any of the material illegalities set forth in the Code of Civil Procedure. In addition, parties may file a “petition for admission of a jokoku appeal” and the Supreme Court may accept the petition as a jokoku appeal if it deems that the case involves an important issue.

    Collective, representative and class actions

  95. 48.

    Does your country have a collective, representative or class action process in private antitrust cases? How common are they?

  96. No collective, representative or class action process is permitted under Japanese law with regard to private antitrust cases.

  97. 49.

    Who can bring these claims? Can consumer associations bring claims on behalf of consumers? Can trade or professional associations bring claims on behalf of their members?

  98. N/A. Please see question 48.

  99. 50.

    What is the standard for establishing a class or group?

  100. N/A. Please see question 48.

  101. 51.

    Are there any other threshold criteria that have to be met?

  102. N/A. Please see question 48.

  103. 52.

    How are damages or assessed in these types of actions?

  104. N/A. Please see question 48.

  105. 53.

    Describe the process for settling these claims, including how damages or settlement amounts are apportioned and distributed.

  106. N/A. Please see question 48.

  107. 54.

    Does your country recognise any form of collective settlement in the absence of such claims being made? If so, how are such settlements given force and can such arrangements cover parties from outside the jurisdiction?

  108. N/A. Please see question 48.

  109. 55.

    Can a competition authority impose mandatory redress schemes or allow voluntary redress schemes?

  110. N/A. Please see question 48.

    Arbitration and ADR

  111. 56.

    Are private antitrust disputes arbitrable under the laws of your country?

  112. A civil dispute that may be resolved by settlement between the parties is arbitrable under the Arbitration Law of Japan, and a private antitrust dispute is also arbitrable under such law.

  113. 57.

    Will courts generally enforce an agreement to arbitrate an antitrust dispute? What are the exceptions?

  114. Japanese courts will generally enforce an arbitration agreement even for an antitrust dispute. There is no legislation or court precedent that provides exceptions thereto.

  115. 58.

    Will courts compel or recommend mediation or other forms of alternative dispute resolution before proceeding with a trial? What role do courts have in ADR procedures?

  116. During the course of civil court proceedings, Japanese courts tend to seek an opportunity to recommend amicable settlement of disputes before the court (judicial settlement). It is common for the court to confirm with the parties whether there is any chance of judicial settlement immediately before moving to witness examinations or immediately after completing witness examinations (ie, before concluding the proceedings to start preparing a judgment). Once the court considers that there is a chance of reaching judicial settlement, the judge tends to have a discussion with a plaintiff and a defendant respectively, and make an attempt to form terms and conditions agreeable by both plaintiff and defendant, persuading the parties to make concessions. When an agreement is reached, it is put into the court record and the record has the same effect as a final and binding judgment. Many civil cases are resolved by judicial settlements in Japan.

    Advocacy

  117. 59.

    Describe any notable attempts by policymakers to increase knowledge of private competition law and to facilitate the pursuit of private antitrust claims?

  118. In order to increase knowledge of private competition law, the JFTC holds periodic press conferences and also issues press releases to disclose the measures and policies being implemented by the JFTC. The JFTC also holds discussion sessions, seminars, and lectures across the country and distributes leaflets, DVDs and emails concerning the Antimonopoly Act in order to disseminate the details of the law to the public.

    Furthermore, there are certain provisions under the Antimonopoly Act that assist plaintiffs or potential plaintiffs for their civil actions seeking the recovery of damages or injunction. For instance, the JFTC provides its opinion regarding the amount of damage to the court that handles damage claims based on article 25 of the Antimonopoly Act, and also provides its opinion with respect to the application of the Antimonopoly Act and other necessary matters if a lawsuit for an injunction has been filed under article 24 of the Antimonopoly Act. Moreover, in addition to making disclosure of documents submitted to the administrative hearing procedures of the JFTC, the JFTC made a public announcement in 1991 that the JFTC provides the plaintiffs with access to certain investigation records that the JFTC collects during its investigation, through the request by the court if a damage suit is filed in the court, except for certain information such as trade secrets and privacy information. Plaintiffs or potential plaintiffs may consider the use of such assistance in pursuit of private antitrust claims.

    Other

  119. 60.

    Give details of any notable features of your country’s private antitrust enforcement regime not covered above.

  120. As one of the notable types of private antitrust litigation in Japan, there have been damage suits filed by residents representing local governments which have suffered damages due to bid-riggings by entrepreneurs in violation of the Antimonopoly Act. Deliberative lawsuits are sometimes filed by the shareholders of the entrepreneurs that engaged in conducts in violation of the Antimonopoly Act, seeking compensation for damage arising from the entrepreneurs’ payments of the administrative surcharges due to such violation.

    The amendment to the Antimonopoly Act that aimed at abolishing the JFTC’s administrative hearing procedures became effective on 1 April 2015. Under the amended Antimonopoly Act, JFTC orders are directly subject to review by judicial courts, without going through administrative hearing proceedings of the JFTC. More specifically, a defendant entrepreneur who received JFTC orders may file a complaint directly with the Tokyo District Court to seek revocation of such JFTC orders. A panel of three or five judges of the court will examine the JFTC orders and a JFTC order will be revoked if the court finds that the order is contrary to the laws. While the “substantial evidence rule” applies to actions to rescind JFTC decisions before the Tokyo High Court under the law before the amendment, such rule was abolished, and therefore, the Tokyo District Court shall not be bound by the JFTC’s fact-findings and a defendant entrepreneur is allowed to submit evidence to the court proceedings without such restrictions as imposed by the substantial evidence rule. 

    Generally, the amendment is considered to make the procedures for reviewing JFTC orders more neutral and fair by abolishing the previous scheme where JFTC reviewed the JFTC orders rendered by itself. In terms of the effect on private antitrust enforcement, it is expected that such change will enhance the judges’ expertise in the field of antitrust law and thereby facilitate private antitrust enforcement through the court proceedings in Japan. Furthermore, under the new scheme, plaintiffs or potential plaintiffs may have access to a broader scope of documents which were collected or created through the JFTC’s investigations because, while the JFTC can refuse to disclose evidentiary documents submitted to the administrative hearing procedures if there is justifiable reason and the JFTC may also impose proper conditions upon disclosing the documents, there is no such restriction on the access to evidentiary documents submitted to the court proceedings, except for trade secrets and private information as explained in questions 7 and 10.

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Questions

    Effect of public proceedings

  1. 1.

    What is your country’s primary competition authority?


  2. 2.

    Does your competition authority have investigatory power? Can it bring criminal proceedings based on competition violations?


  3. 3.

    Can private antitrust claims proceed parallel to investigations and proceedings brought by competition authorities and criminal prosecutors and appeals from them?


  4. 4.

    Is there any mechanism for staying a stand-alone private claim while a related public investigation or proceeding (or an appeal) is pending?


  5. 5.

    Are the findings of competition authorities and court decisions binding or persuasive in follow-on private antitrust cases? Do they have an evidentiary value or create a rebuttable presumption that the competition laws were violated? Are foreign enforcers’ decisions taken into account? Can decisions by sector-specific regulators be used by private claimants?


  6. 6.

    Do immunity or leniency applicants in competition investigations receive any beneficial treatment in follow-on private antitrust cases?


  7. 7.

    Can plaintiffs obtain access to competition authority or prosecutors’ files or the documents the authorities collected during their investigations? How accessible is information prepared for or during public proceedings by the authority or commissioned by third parties?


  8. 8.

    Is information submitted by leniency applicants shielded from subsequent disclosure to private claimants?


  9. 9.

    Is information submitted in a cartel settlement protected from disclosure?


  10. 10.

    How is confidential information or commercially sensitive information submitted by third parties in an investigation treated in private antitrust damages claims?


  11. Commencing a private antitrust action

  12. 11.

    On what grounds does a private antitrust cause of action arise?


  13. 12.

    What forms of monetary relief may private claimants seek?


  14. 13.

    What forms of non-monetary relief may private claimants seek?


  15. 14.

    Who has standing to bring claims?


  16. 15.

    In what fora can private antitrust claims be brought in your country?


  17. 16.

    What are the jurisdictional rules? If more than one forum has jurisdiction, what is the process for determining where the claims are heard?


  18. 17.

    Can claims be brought based on foreign law? If so how does the court determine what law applies to the claim?


  19. 18.

    Give details of any preliminary requirement for starting a claim. Must plaintiffs post security or pay a filing fee? How is service of claim affected?


  20. 19.

    What is the limitation period for private antitrust claims?


  21. 20.

    Are those time limits procedural or part of the substantive law? What is the effect of their expiry?


  22. 21.

    When does the limitation period start to run?


  23. 22.

    What, if anything, can suspend the running of the limitation period?


  24. 23.

    What pleading standards must the plaintiff meet to start a stand-alone or follow-on claim?


  25. 24.

    Is interim relief available? What must plaintiffs show for the court to grant interim relief?


  26. 25.

    What options does the defendant have in responding to the claims and seeking early resolution of the case (eg, answer, counterclaim, motion to dismiss, summary judgment)?


  27. Disclosure/discovery

  28. 26.

    What types of disclosure/discovery are available? Describe any limitations and the courts' usual practice in ordering disclosure/ discovery.


  29. 27.

    How do the courts treat confidential information that might be required to be disclosed or that is responsive to a discovery proceeding? Is such information treated differently for trial?


  30. 28.

    What protection, if any, do your courts grant attorney–client communications or attorney materials? Are any other forms of privilege recognised?


  31. Trial

  32. 29.

    Describe the trial process.


  33. 30.

    How is evidence given or admitted at trial?


  34. 31.

    Are experts used in private antitrust litigation in your country? If so, what types of experts, how are they used, and by whom are they chosen or appointed?


  35. 32.

    What must private claimants prove to obtain a final judgment in their favour?


  36. 33.

    Are there any defences unique to private antitrust litigation (eg, Noerr-Pennington defence, passing-on defence)? If so, which party bears the burden of proving these defences?


  37. 34.

    How long do private antitrust cases usually last (not counting appeals)?


  38. 35.

    Who is the decision-maker at trial?


  39. Damages, costs and funding

  40. 36.

    What is the evidentiary burden on plaintiffs to quantify the damages?


  41. 37.

    How are damages calculated?


  42. 38.

    Does your country recognise joint and several liabilities for private antitrust claims?


  43. 39.

    Can a defendant seek contribution or indemnity from other defendants, including leniency applicants, or third parties? Does the law make a clear distinction between contribution and indemnity in antitrust cases?


  44. 40.

    Can prevailing parties recover attorneys’ and court fees and other costs? How are costs calculated?


  45. 41.

    Are there circumstances where a party’s liability to pay costs or ability to recover costs may be limited?


  46. 42.

    May attorneys act for claimants on a contingency or conditional fee basis? How are such fees calculated?


  47. 43.

    Is litigation funding lawful in your country? May plaintiffs sell their claims to third parties?


  48. 44.

    May defendants insure themselves against the risk of private antitrust claims? Is after-the-event insurance available for antitrust claims?


  49. Appeal

  50. 45.

    Is there a right to appeal or is permission required?


  51. 46.

    Who hears appeals? Is further appeal possible?


  52. 47.

    What are the grounds for appeal against a decision of a private enforcement action?


  53. Collective, representative and class actions

  54. 48.

    Does your country have a collective, representative or class action process in private antitrust cases? How common are they?


  55. 49.

    Who can bring these claims? Can consumer associations bring claims on behalf of consumers? Can trade or professional associations bring claims on behalf of their members?


  56. 50.

    What is the standard for establishing a class or group?


  57. 51.

    Are there any other threshold criteria that have to be met?


  58. 52.

    How are damages or assessed in these types of actions?


  59. 53.

    Describe the process for settling these claims, including how damages or settlement amounts are apportioned and distributed.


  60. 54.

    Does your country recognise any form of collective settlement in the absence of such claims being made? If so, how are such settlements given force and can such arrangements cover parties from outside the jurisdiction?


  61. 55.

    Can a competition authority impose mandatory redress schemes or allow voluntary redress schemes?


  62. Arbitration and ADR

  63. 56.

    Are private antitrust disputes arbitrable under the laws of your country?


  64. 57.

    Will courts generally enforce an agreement to arbitrate an antitrust dispute? What are the exceptions?


  65. 58.

    Will courts compel or recommend mediation or other forms of alternative dispute resolution before proceeding with a trial? What role do courts have in ADR procedures?


  66. Advocacy

  67. 59.

    Describe any notable attempts by policymakers to increase knowledge of private competition law and to facilitate the pursuit of private antitrust claims?


  68. Other

  69. 60.

    Give details of any notable features of your country’s private antitrust enforcement regime not covered above.