Japan
Answer ... In Japan, private claims that may be brought for breach of competition law are, in principle, claims for compensation of damages arising from breach of competition law.
Moreover, pursuant to Article 24 of the Anti-monopoly Act, which was introduced by a 2001 amendment, a private plaintiff may, in addition to seeking damages, seek an injunction against certain unfair trade practices to demand the suspension or prevention of such practices. The Japan Fair Trade Commission (JFTC) has designated under the authority of the Anti-monopoly Act certain types of unfair trade practices, such as:
- discriminatory consideration;
- unjust low-price sales;
- tie-in sales;
- restriction of resale price;
- refusal to trade;
- trading on restrictive terms (including restriction of sales territories); and
- discriminatory treatment on trade terms.
Of these, private plaintiffs most commonly establish injunctions based on:
- discriminatory consideration;
- unjust low-price sales; and
- restriction of sales territories.
Furthermore, where a director of a company allows the company to engage in unreasonable restraint of trade or overlooks such anti-competitive practices, the Supreme Court has ruled that the shareholders of the company may file a derivative action against the director claiming damage incurred by the company.
Japan
Answer ... As mentioned in question 2.1, claims that may be brought by private parties for breach of competition law are primarily damages claims, which are governed by the Civil Code (Act No 89 of 1896, as amended).
A victim of anti-competitive acts can establish a damages claim based on general tort theory under Article 709 of the Civil Code, which states that anyone that violates a third party’s right must compensate for damage resulting from such wrongdoing. This is interpreted to cover anti-competitive acts.
In addition, Article 703 of the Civil Code provides that a victim of anti-competitive acts is entitled to claim for unjust enrichment that the defendant gained through its anti-competitive acts.
On the other hand, the Anti-monopoly Act provides a supplementary way for private plaintiffs to bring anti-competitive claims. Specifically, Article 25 of the Anti-monopoly Act provides that parties that have monopolised or engaged in a cartel or other unfair trade practices are liable to compensate those injured by those practices (‘Article 25 claim’). Notably, although an Article 25 claim can only be made when the defendant is subject to a final and binding JFTC order, such claim comes with the benefit of a relaxed burden of proof on the part of the plaintiff (ie, intention or negligence on the part of the defendant need not be established), as further explained in question 6.3. Further, Article 24 of the Anti-monopoly Act enables a private plaintiff to seek injunction against certain unfair trade practices, as mentioned in question 2.1.