Bid rigging among companies is sometimes aided by government officials when the officials provide information concerning the yearly schedule for public tendering or when they reveal the maximum and minimum contract prices set in advance by the procuring office. Officials sometimes suggest that the bidders should agree upon the winner in advance. They can be further involved in collusion by suggesting bidders that a particular company should win a contract and require bidders to coordinate their bids accordingly. To counter the problem, legislation specifically addressing government officials’ involvement in bid rigging was enacted in 2002 and has been enforced by the FTC for about a decade. Under this law, conduct which promotes and aides bid rigging is specified as unlawful, including nominating the winning bidder in advance and disclosing confidential information to bidders. When the FTC discovers such activities, it will demand that the procuring department investigate the issue and implement measures to eliminate the problem. The investigation is obligatory for the procuring department. It is also obliged to publish the outcome of the investigation, take action against procurement officials to recover damages and issue disciplinary action against them. Through the investigations performed by the procuring office, the practices by which procurement officials rig bids have been uncovered. The cases also demonstrate under what circumstances collusion and corruption is likely and what motivates a procurement official to get involved in collusion. The paper presents the lessons learned from enforcement cases regarding how procurement officials start acting anti-competitively; review the function of the law and observe the interaction between the FTC and the procuring department; and consider remaining issues in resolving the confluence of collusion and corruption in Japan.

Une fusion impliquant une plateforme numerique peut avoir des effets anticoncurrentiels sans precedent, ce qui represente un defi pour la Japan Fair Trade Commission (JFTC). Cet article examine trois…

While Japan is aging rapidly and the local communities in rural areas are struggling to maintain their essential societal function, the Japan Fair Trade Commission (JFTC) has revised the merger guidelines to allow for mergers that create a monopoly. Under the new approach, which the author calls the shrinking market doctrine, such a merger is deemed to lack an anti-competitive effect if the market is no longer large enough to hold multiple companies. The article examines the precedent of the doctrine (a regional bank merger case), the logic behind it (counterfactual analysis and minimum efficient scale argument) and the way the JFTC is likely to apply the doctrine. The author then concludes that the careless application of the doctrine would lead to harm on the local community and that the doctrine should not add much to the already existent efficiency defence and failing company doctrine.

Abstract COVID-19 is a highly transmittable disease. Until a vaccine is found, social distancing is the only way to prevent the virus from killing millions. Lockdown may also be necessary. Such measures inevitably cause an economic recession, so supplementing individuals’ incomes prove vital. Without income support, employees must go to work and risk contracting and spreading the virus. Instituting protective measures is the role of the government; however, a dysfunctional government causes citizens to seek alternative solutions from either the civic sector or charitable organizations.

The unexpected shock provoked by the Covid-19 crisis and the measures taken to limit the spread of the pandemic have affected the functioning of many markets. Throughout the world, competition…

The Japanese Antimonopoly Act (AMA, 1947) does not state how far its provisions reach internationally, and the Japan Fair Trade Commission (JFTC) has been very cautious about applying the AMA to actions taken abroad. Instead, there is a special provision, Article 6, that prohibits enterprises from being parties to anticompetitive international agreements, and the JFTC applied this to Japanese companies for a few decades after the AMA was enacted. ... Changes in international norms prompted the JFTC to engage in a gradual shift from partial enforcement of the AMA to extraterritorial application to foreign entities. The Supreme Court’s Cathode Ray Tube (CRT) judgement (2017) is a milestone case, as the court finally pronounced that the AMA was applicable to foreign companies’ actions abroad if those actions affect the free competition regime in Japan. In the paper, the historical development of the JFTC’s decisional practice, focusing on Article 6, is examined first, and the paper considers what prompted it to change. The CRT case is then examined, and the remaining issues and future directions that Japan should take, particularly regarding the regulation of export cartels, are explored.

The AMA does not apply to workers’ collective actions protected by labour law. Due to the uncertainty in the definition of workers and coverage of labour law, the extent to which self-employed workers’ collective actions are exempt from the AMA has become unclear. In such a context, it is imperative to recognise that small economic entities’ collective bargaining and other activities that trade unions are engaged in are not always anticompetitive and that an AMA violation is not found unless substantial restriction of competition, or lessening of competition, is caused by the practices. Moreover, the actions of co-operatives are also exempt from the AMA and those who are not protected as workers can strengthen their bargaining position by forming co-operatives. The AMA is primarily enforced by the JFTC and its interest has been rather to protect small businesses from those with superior bargaining positions. For the time being, it is unlikely that the JFTC will start prosecuting the collective actions of self-employed workers which may be protected by the labour law. The paper details the relationship between labour and competition law in Japan focusing worker's collective actions.

The bill to amend the Japanese Antimonopoly Act (AMA) finally passed the Diet on 19 March 2019. The amendments will increase the amount of the administrative fine, called a surcharge. This low surcharge is routinely criticised. Despite several changes made to the current system, the surcharge is likely to remain low in comparison with similar international levies, which could indicate a lack of political will to combat cartels in Japan. This article challenges this view and argues that the long-standing rationale behind the surcharge system—disgorgement—is reflected in the surcharge level. We argue that the distinguishing features of the Japanese fining system are this fidelity to disgorgement rather than deterrence, and the coexistence of the administrative surcharge and the criminal fine, both of which the government can impose on the same company for the same activity. We are sceptical of deterrence theory, which underpins the enforcement approach of many leading competition law jurisdictions elsewhere, and contend that the Japanese approach could help keep its fining system legitimate and effective. After emphasising the importance of legitimacy of cartel fining system, the article explores overlooked aspects of the Japanese fining system. It then points out that further reforms are still necessary, particularly as a significant challenge looms: how Japan will be able to keep its dual system given that deterrence theory is the global norm.

COVID-19 is a highly transmittable disease. Until a vaccine is found, social distancing is the only way to prevent the virus from killing millions. Lockdown may also be necessary. Such measures inevitably cause an economic recession, so supplementing individuals' incomes prove vital. Without income support, employees must go to work and risk contracting and spreading the virus. Instituting protective measures is the role of the government; however, a dysfunctional government causes citizens to seek alternative solutions from either the civic sector or charitable organizations.

The recent phenomena that the gig workers, franchisees and sellers using online shopping platform establish ‘unions’ to bargain collectively with their powerful counterparties give rise to questions as to how these organisations should be dealt under the competition laws. Although it is established that Japanese competition law, Antimonopoly Act (AMA), is not applicable to workers and their collective actions, the legal status of the above entities, which I call self-employed workers, is not clear. Possibility is that they are deemed enterprises, rather than workers, and their collective activities are deemed illegal cartels on which severe sanctions are imposed under the AMA. To help discussion, the article analyses conventional trade unions’ effect and nature from competition law perspectives. Such analysis should be informative given self-employed workers organisations’ aims and activities as well as their members’ economically dependent status are largely the same with ones of trade unions. Having clarified that the trade union should not be viewed neither as a monopoly nor as a cartel for the purpose of the AMA and that market share, or union density, is not helpful in assessing unions’ power, I analyse unions’ unique ways of influencing working conditions - collective bargaining and strike and engagement in regulatory, judicial and legislative activities - and contends that their activities are generally unlikely to be anticompetitive in Japan. Meanwhile, the complex nature of such analysis also become clear. I then conclude that the AMA is a brunt tool to evaluate effect and legitimacy of collective actions to counter powerful buyers, be it conventional employees or self-employed workers, and that the legislature, neither the AMA nor the competition authority, should determine whether self-employed workers should be allowed to unionise and engage in collective actions.

Index supplement for https://ssrn.com/abstract=3270141. Case index with Japanese subtitles.

The Pacific Ocean liner shipping market appears to be cartelized, primarily because of antitrust exemptions for shipping companies' agreements. The current industry consolidation trend driven by economies of scale is likely to nurture the collusion inducing environment further; thus, strengthened competition law enforcement associated with the abolition of the exemption system is imperative. The global nature of the service and the experiences thus far indicate the need for internationally coordinated efforts toward that end. This article first explains the current trends in liner shipping services and various factors affecting the market structure to give the readers the appropriate background knowledge to identify the competitive concerns. The next section examines the legal frameworks adopted by countries in the Pacific Rim region, reviews and assesses competition issues, and proposes legislative and enforcement measures necessary to the sector. The article concludes by outlining concrete proposals to be considered by the Asia-Pacific Economic Partnership (APEC).

The Index Supplement can be found here: https://ssrn.com/abstract=3353869. The Antimonopoly Act (AMA) celebrated its 70-year anniversary in 2017. Since its enactment dating back to the post-War democratisation period, the AMA has become fundamental to the legal rules with which every business must comply. It has also established a position as one of the core subjects studied at Japan’s legal education institutes, and a significant number of and case materials on this topic have been written in Japanese. At the same time, an increasing number of Japanese universities are introducing law courses taught in English. Considering these developments, the lack of English-language literature covering the AMA in a comprehensive manner is remarkable. With this book, I hope to fill this gap by providing a good starting point for English speakers seeking to study the AMA, either for academic research or practice and compliance purposes. My priority in this work is to explain current mainstream understanding of the AMA and how it is implemented in practice.

Abuse of superior bargaining position has long been a controversial area of Japanese competition law. Even though it is by no means unique to Japan—Korea, Taiwan, France, and Germany among others also have similar regulation—Japan’s abuse regulation has tended to attract more attention globally. One of the main sources of controversy for abuse regulation is whether it is consistent with competition law, and whether it serves any useful economic purpose. This article attempts to address this long-standing debate by examining whether abuse regulation is consistent with the various objectives of competition law and other economic rationales. Having determined that these objectives and rationales provide at best tenuous justifications for abuse regulation, or are inconsistent with the Japan Fair Trade Commission’s current enforcement practices, it proceeds to argue that abuse regulation can be best justified as a supplement to deficient contract law enforcement, which many commentators have noted is particularly serious for smalland medium-sized enterprises in Japan.

Intellectual Property Rights and the EC Competition Rules by Prof. Valentine Korah, Hardcover: 322 pages, Publisher: Hart Publishing (16 Feb 2006). ISBN-10: 184113614X