Abstract
Under Japanese antitrust law, it is unlawful and prohibited for entrepreneurs to use their superior bargaining position to perform unreasonable acts to the disadvantage of transaction partners (Abuse of Superior Bargaining Position).
This Chapter is based on Sayako Takizawa and Koki Arai (2014) “Abuse of Superior Bargaining Position: the Japanese experience.” Journal of European Competition Law & Practice, 5(8), 557–562.
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- 1.
The related articles of the introduction of the surcharge system against abuse of the superior bargaining position in Japanese are Yu-etsu-teki Chi-i Ranyou Kisei no Kaisetsu (Commentary on Regulation of Abuse of Superior Bargaining Position), Kosei-Torihiki Kyokai (2011, in Japanese), Tetsuya Nagasawa, Yu-etsu-teki Chi-i Ranyou Kisei to Shitauke-Ho no Kaisetsu to Bunseki (Commentary and Analysis on Regulation of Abuse of Superior Bargaining Position and Subcontract Act), Shoji Homu, (2011, in Japanese) and special featured articles on Abuse of Superior Bargaining Position in Jurist No. 1442 (June 2012, in Japanese) and in Kosei Torihiki (Fair Trade) No. 757 (November 2013, in Japanese). The basic commentaries of the Articles in Japanese are Akira Negishi Ed. Chushaku Dokusen Kinshi Ho (Commentaries on Antimonopoly Act) Yuhikaku, (2009, in Japanese) Tadashi Shiraishi, Dokusen Kinshi Ho (Antimonopoly Act) 2nd Ed., Yuhikaku, (2009, in Japanese) and Tadashi Shiraishi, Dokkin Ho Kougi (Lecture on Antimonopoly Act) 7th Ed., Yuhikaku (2014, in Japanese). This chapter is based on Takizawa Sayako ‘Kacho-kin Dounyu-go no “Yu-etsu-teki chi-i no Ranyo” Jirei no Ken-to (A study on cases of “Abuse of Superior Bargaining Power” after the introduction of a surcharge)’ Jurist No. 1442, 33–37 (2012, in Japanese).
- 2.
The Subcontract Act regulates late or reduced payment of subcontract prices and ordering parties’ unreasonable treatment of subcontractors. It defines prohibited acts on the part of ordering parties in many business fields from manufacturing to service industries, and protects subcontractors by asking for simple and prompt remedial measures, when any illegal act is recognized. This Act does not introduce a surcharge system.
- 3.
See Guidelines Concerning Abuse of Superior Bargaining Position under the Antimonopoly Act (30 November 2010, JFTC) available at http://www.jftc.go.jp/en/legislation_gls/imonopoly_guidelines.files/101130GL.pdf (accessed 5 July 2014). See also Ito Kenji, Takamiya Yusuke (2013) ‘Yuetsuteki chi-i no Ranyo Jirei ni kakaru Ho-teki Risuku oyobi Konpuraiansu Taisei Kouchiku jo no Ryuiten’ (Risks for a case of abuse of superior bargaining position and caveats on establishment of compliance program), Kosei Torihiki (Fair Trade) No. 757, 2–12. (in Japanese), Kagami Kazuaki (2013) ‘Yuetsu-teki chi-i no Ranyo Kisei no Keizai Bunseki’ (Economic Analysis on Control of Abuse of Superior Bargaining Position), Kosei Torihiki (Fair Trade), No. 757, 23–29, (in Japanese), and Yokota Naokazu (2013) ‘Saikin no Yu-etsu-teki chi-i no Ranyo Kisei no Doko’ (Recent development of the control of abuse of superior bargaining position) Kosei Torihiki (Fair Trade) No. 757, 13–22 (in Japanese).
- 4.
See the JFTC’s annual report available at http://www.jftc.go.jp/en/about_jftc/annual_reports/2009index.html (accessed 5 July 2014).
- 5.
See Guidelines for Exclusionaly Private Monopolization under the Antimonopoly Act (28 October 2009, JFTC) available at http://www.jftc.go.jp/en/legislation_gls/imonopoly_guidelines.files/guidelines_exclusionary.pdf (accessed 5 July 2014).
- 6.
See at http://www.jftc.go.jp/en/pressreleases/yearly-2009/jun/090603-1.files/090603-2.pdf (accessed 5 July 2014).
- 7.
There has been no levied case so far on private monopolization. JFTC may have taken a cautious approach due to the possibly large surcharge amount. Therefore, after the amendment in 2009, there are only four levied cases in this chapter as to the recently introduced surcharge.
- 8.
These procedures were introduced in the 2005 Amendment of the Antimonopoly Act. These procedures are common in a cease and desist order and a surcharge payment order.
- 9.
The bill to amend the AMA was enacted on 7 December 2013. In this amendment, there are two main items:
-
(i)
The JFTC’s hearing procedure for administrative appeal will be abolished, and appeals against administrative orders issued by the JFTC (cease and desist orders, etc.) will be heard at the Tokyo District Court as appeal suits.
-
(ii)
Prior to issuing an administrative order by the JFTC, a procedure for hearing presided by an officer designated by the JFTC will be prepared, where inspecting and copying evidence to facts found by the JFTC are assured.
See the JFTC’s press release at http://www.jftc.go.jp/en/pressreleases/yearly2013/Dec/individual131209.html (accessed 5 July 2014).
-
(i)
- 10.
As review of this case, Kentaro Hirayama (2011) Jurist 1430, 52–53 (in Japanese).
- 11.
See the JFTC’s press release at http://www.jftc.go.jp/houdou/pressrelease/h23/jun/110622marunaka.html (accessed 5 July 2014) (in Japanese).
- 12.
See the JFTC’s press release at http://www.jftc.go.jp/en/pressreleases/yearly2011/dec/individual-000456.html (accessed 5 July 2014).
- 13.
See the JFTC’s press release at http://www.jftc.go.jp/en/pressreleases/yearly2012/feb/individual-000465.html (accessed 5 July 2014).
- 14.
See the JFTC’s press release at http://www.jftc.go.jp/en/pressreleases/yearly2013/july/130703.files/130703.pdf (accessed 5 July 2014).
- 15.
In order to regulate this problem adequately, JFTC made a special designation based on Article 2(9)(vi) called ‘Specific Unfair Trade Practices by Large-Scale Retailers Relating to Trade with Suppliers (Fair Trade Commission Notification No. 11 of 2005)’, which is now de-facto invalid.
- 16.
Supra note 3.
- 17.
Ibid., p. 5.
- 18.
A forerunner in this field is Tadashi Shiraishi, a professor at the Graduate School of Law and Politics at the University of Tokyo. For an important classic work, see Tadashi Shiraishi, “Torihiki-Jo no Chi-i no Futo Riyou” Kisei to “Shijo” Gainen (Regulation on “Unjustifiable Use of Bargaining Position” and the Concept of “Market”). 57:3 Tohoku University HoGakubu Kiyou 255–93 (August 1993, in Japanese).
- 19.
The JFTC issued a cease and desist order based on abuse of superior bargaining position to Sanyo-Marunaka on 15 April 2004.
- 20.
Masako Wakui, Antimonopoly Law—Competition Law and Policy in Japan
(ASK House, Suffolk, UK 2008).
- 21.
Yo Sop Choi and Kazuhiko Fuchikawa, ‘Comparative Analysis of Competition Laws on Buyer Power in Korea and Japan’ (2010) 33:3 World Competition 499–519.
- 22.
Task Force for Abuse of Superior Bargaining Position of ICN 7th Conference (2008) ‘Report on Abuse of Superior Bargaining Position,’ that is arranged by the; see at http://www.internationalcompetitionnetwork.org/uploads/library/doc386.pdf (accessed 5 July 2014).
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Arai, K. (2019). Abuse of Superior Bargaining Position. In: Law and Economics in Japanese Competition Policy. Springer, Singapore. https://doi.org/10.1007/978-981-13-8188-1_8
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