Kozuka, Souichirou --- "Competition law in Japan: the rise of private enforcement by litigious reformers" [2015] ELECD 481; in Wolff, Leon; Nottage, Luke; Anderson, Kent (eds), "Who Rules Japan?" (Edward Elgar Publishing, 2015) 164

Book Title: Who Rules Japan?

Editor(s): Wolff, Leon; Nottage, Luke; Anderson, Kent

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849804103

Section: Chapter 7

Section Title: Competition law in Japan: the rise of private enforcement by litigious reformers

Author(s): Kozuka, Souichirou

Number of pages: 21

Abstract/Description:

The Antimonopoly Act (AMA) (No. 54 of 1947), the regulatory centrepiece of Japanese competition law, offers an interesting litmus test of the role of law and courts in Japanese society. Though it has been in existence since 1947, the AMA has languished as a result of insufficient enforcement during most of the post-war period – so much so that commentators doubted that it was equipped with the necessary ‘teeth’ (Taylor, 2003, p._140). A book published as late as 2000 described the Japanese Fair Trade Commission (JFTC), the government agency in charge of the AMA, as ‘anything but a strong, autonomous agency’ (Schaede, 2000, p._108). Judicial enforcement of the AMA, in the form of private damages suits, has been ‘ignored’ or largely non-existent (Ramseyer, 1983, pp._418–23; Haley, 1984, pp._501–4; Ramseyer, 1985, p. 627; First, 1995, pp._177–8; Fry, 2001, pp._852–3). The JFTC started to escalate its enforcement efforts in the early 1990s, ostensibly under pressure from the United States government through the Structural Impediments Initiative (SII) negotiations (First, 1995, pp._163–73; see generally Matsushita, 1991; Johnson, 1995, chapter 4). Still, scholars argued that the enforcement of the AMA in Japan differed from antitrust measures in the United States in two respects. First, the JFTC, as the only enforcer of the law, held a concentration of enforcement power. Second, the JFTC’s regulatory style was more ‘bureaucratic’ (that is, focused on the structure of the national economy as a whole), rather than ‘legalistic’ (geared to remedying the harm incurred in individual cases) (First, 1995, pp._174–5; First and Shiraishi, 2007, pp._529–30).