Edited by Albert A. Foer and Jonathan W. Cuneo
Chapter 33: Japan
Hiromitsu Miyakawa1 Introduction Under the Japanese laws, which are primarily based on civil law systems, antitrust violations, including acts of private monopolization, unreasonable restraint of trade and unfair trade practices, are considered to constitute torts. Private antitrust enforcement seeking damages against corporations violating the antitrust law has been gradually increasing in Japan since the government promoted and expanded the civil antitrust litigation system by introducing injunctive relief and expanding the scope of anticompetitive conduct subject to strict liability. Moreover, section 83-4 of the 2009 amendments to the Anti-Monopoly Act (AMA) newly established a special rule for an order to produce documents for an injunction in order to help antitrust plaintiffs to collect evidence. Nevertheless, the status of private antitrust enforcement in Japan is not very active yet, particularly compared with the United States. It is widely recognized that private antitrust enforcement has great significance in that: (i) monetary and injunctive relief are available for victims of anticompetitive practices; (ii) private enforcement may cover illegal activities not detected by the Japan Fair Trade Commission (JFTC) and thereby can supplement public enforcement; and (iii) the accumulation of judgments may play an important role in establishing clearer guidelines and increasing transparency.2 It is expected that private antitrust enforcement will further expand into more diverse areas, such as monopolization and unfair trade practices, although most private litigation filed so far relates to unreasonable restraint of trade, such as cartels and bid riggings. The JFTC has expressed its intention to increase the disclosure of information...
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