infopaksm merger control in japan: overview

By in-house counsel, for in-house counsel.®

Association of Corporate Counsel 1025 Connecticut Avenue, NW, Suite 200

Washington, DC 20036 USA tel +1 202.293.4103, fax +1 202.293.4701

www.acc.com

By in-house counsel, for in-house counsel.®

Association of Corporate Counsel 1025 Connecticut Avenue, NW, Suite 200

Washington, DC 20036 USA tel +1 202.293.4103, fax +1 202.293.4701

www.acc.com

InfoPAKSM

Merger Control in Japan: Overview Sponsored by:

Merger Control in Japan: Overview

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May 2017

Provided by the Association of Corporate Counsel 1025 Connecticut Avenue, NW, Suite 200 Washington, DC 20036 tel +1 202.293.4103 fax +1 202.293.4107 www.acc.com

This InfoPAKSM gives a high level overview of merger control, regulatory framework and regulatory authorities, relevant triggering events and thresholds in Japan. It also covers notification requirements, procedures and timetables, publicity and confidentiality, third party rights, substantive test, remedies, penalties, appeals, joint ventures and proposals for reform.

This Q&A is part of the global guide to competition and cartel leniency. For a full list of jurisdictional Merger Control Q&As visit www.practicallaw.com/mergercontrol-guide. For a full list of jurisdictional Restraints of Trade and Dominance Q&As visit www.practicallaw.com/restraintsoftrade-guide.

For a full list of jurisdictional Cartel Leniency Q&As, which provide a succinct overview of leniency and immunity, the applicable procedure and the regulatory authorities in multiple jurisdictions, visit www.practicallaw.com/leniency-guide.

For more ACC InfoPAKs, please visit http://www.acc.com/infopaks

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Contents

I. Regulatory Framework .................................................................................................................... 5

A. What (if Any) Merger Control Rules Apply to Mergers and Acquisitions in Your Jurisdiction? What Is the Regulatory Authority? ............................................................................................................................................................. 5

II. Triggering Events/Thresholds ......................................................................................................... 6

A. What Are the Relevant Jurisdictional Triggering Events/Thresholds? ......................................................................... 6

III. Notification ........................................................................................................................................ 8

A. What Are the Notification Requirements for Mergers? ................................................................................................. 8

IV. Procedure and Timetable .............................................................................................................. 10

A. What Are the Applicable Procedures and Timetable? .................................................................................................. 10

V. Publicity and Confidentiality ......................................................................................................... 11

A. How Much Information Is Made Publicly Available Concerning Merger Inquiries? Is Any Information Made Automatically Confidential and Is Confidentiality Available on Request? ................................................................. 11

VI. Rights of Third Parties ................................................................................................................... 12

A. What Rights (if Any) Do Third Parties Have to Make Representations, Access Documents or Be Heard During the Course of an Investigation? ............................................................................................................................ 12

VII. Substantive Test ............................................................................................................................. 13

A. What Is the Substantive Test? ............................................................................................................................................. 13

B. What, if Any, Arguments Can Be Used to Counter Competition Issues (Efficiencies, Customer Benefits)? .. 13

C. Is It Possible for the Merging Parties to Raise a Failing/Exiting Firm Defence? ....................................................... 14

VIII. Remedies, Penalties and Appeal ................................................................................................... 14

A. What Remedies (Commitments or Undertakings) Can Be Imposed as Conditions of Clearance to Address Competition Concerns? At What Stage of the Procedure Can They Be Offered and Accepted? ..................... 14

B. What Are the Penalties for Failing to Comply with the Merger Control Rules? ................................................... 15

C. Is There a Right of Appeal Against the Regulator's Decision and What Is the Applicable Procedure? Are Rights of Appeal Available to Third Parties or Only the Parties to the Decision? ................................................. 15

IX. Automatic Clearance of Restrictive Provisions .......................................................................... 16

A. If a Merger Is Cleared, Are Any Restrictive Provisions in the Agreements Automatically Cleared? If They Are Not Automatically Cleared, How Are They Regulated? ...................................................................................... 16

X. Regulation of Specific Industries ................................................................................................... 17


Copyright © 2017 Practical Law Company (PLC) & Association of Corporate Counsel

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A. What Industries (if Any) Are Specifically Regulated? ..................................................................................................... 17

B. Has the Regulatory Authority in Your Jurisdiction Issued Guidelines or Policy on Its Approach in Analysing Mergers in a Specific Industry? ............................................................................................................................................ 17

XI. Joint Ventures ................................................................................................................................. 17

A. How Are Joint Ventures Analysed under Competition Law? ..................................................................................... 17

XII. Inter-Agency Co-Operation .......................................................................................................... 18

A. Does the Regulatory Authority in Your Jurisdiction Co-Operate with Regulatory Authorities in Other Jurisdictions in Relation to Merger Investigations? If So, What Is the Legal Basis for and Extent of Co-Operation (in Particular, in Relation to the Exchange of Information, Remedies/Settlements)? ........................ 18

XIII. Recent Mergers ............................................................................................................................... 18

A. What Notable Recent Mergers or Proposed Mergers Have Been Reviewed by the Regulatory Authority in Your Jurisdiction and Why Is It Notable? ........................................................................................................................ 18

XIV. Proposals for Reform ..................................................................................................................... 19

A. Are There Any Proposals for Reform Concerning Merger Control? ....................................................................... 19

XV. Online Resources ............................................................................................................................ 20

A. Japan Fair Trade Commission (JFTC) ................................................................................................................................ 20

XVI. The Regulatory Authority ............................................................................................................. 20

A. Japan Fair Trade Commission (JFTC) ................................................................................................................................ 20

XVII. About the Authors ......................................................................................................................... 21

A. A Yusuke Nakano .................................................................................................................................................................. 21

B. Atsushi Yamada ...................................................................................................................................................................... 22

C. Takahiko Itoh .......................................................................................................................................................................... 23


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I. Regulatory Framework

A. What (if Any) Merger Control Rules Apply to Mergers and Acquisitions in Your Jurisdiction? What Is the Regulatory Authority?

1. Regulatory Framework The merger control rules under the Anti-Monopoly Act (AMA) include two important regulations:

■ Mergers and acquisitions meeting certain thresholds (see Section II.A) are subject to pre-merger notification and waiting period requirements, so that relatively large deals are reviewed before their closing.

■ Whether reportable or not, mergers and acquisitions are prohibited if their effect may be to substantially restrain competition in any particular field of trade (market).

2. Regulatory Authority

Merger control is enforced by the Japan Fair Trade Commission (JFTC). The JFTC has primary jurisdiction over the enforcement of merger control under the AMA. In the unlikely event that the parties to a merger wish to challenge a cease-and-desist order that may completely prohibit the transaction or order the recipient to carry out remedial action, the Tokyo District Court is the court of first instance.

See Section XVI.



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II. Triggering Events/Thresholds

A. What Are the Relevant Jurisdictional Triggering Events/Thresholds?

1. Triggering Events

The following are subject to prior notification under the Anti-Monopoly Act (AMA) if they exceed certain thresholds:

■ Share acquisitions (including joint ventures).

■ Mergers (the Japan Fair Trade Commission (JFTC) uses the term "merger" in its English translation of the AMA to describe what is known as an "amalgamation" in many other jurisdictions).

■ Joint share transfers.

■ Acquisition of business or fixed assets of a business (acquisition of business).

■ Corporate splits (or demergers).

Mergers and acquisitions (M&A) transactions whose schemes involve more than one of these transactions (for example, an acquirer merges with a target after acquiring shares in the target) are separately analysed at each step of the transaction and may technically require separate filings for each of the various transactional steps. However, in practice, the JFTC conducts a substantial review altogether.

The different types of transactions and interlocking directorates are subject to substantive regulations that prohibit them if their effect may be to substantially restrain competition in the market.

2. Thresholds

Domestic turnover. Domestic turnover is the total amount of the price of goods and services supplied in Japan during the latest fiscal year. It is used as a decisive factor in the calculation of thresholds. The same thresholds apply to both domestic and foreign companies.

According to the Rules on Applications for Approval, Reporting, Notification etc. under Articles 9 to 16 of the AMA (as amended in 2011), the domestic turnover of a company includes the sales amount accrued through direct importing into Japan regardless of whether the company has any presence in Japan. More precisely, domestic turnover is the total amount of the following categories of sales amounts derived from the sale of goods (including services) that are those:


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■ Sold to domestic consumers (excluding individuals who become parties to contracts for business).

■ Supplied in Japan to business entities or individuals that become parties to contracts for business (business entities). This excludes the sale of goods that it is known at the time of entering into the contract will be shipped outside of Japan, without any changes made to their nature or characteristics.

■ Supplied outside of Japan to business entities, but for which it is known at the time of entering into the contract that the goods will be shipped into Japan, without any changes made to their nature or characteristics.

Where the calculation of domestic turnover cannot be made in strict compliance with these rules, it is permissible to use a different method to calculate the amount of domestic turnover, as long as it is in line with the purpose of the above-specified method and in accordance with generally accepted accounting principles.

Notification thresholds for each type of transaction. Under the AMA, different notification thresholds apply depending on the different types of transactions, including:

■ Share acquisitions.

■ Mergers.

■ Joint share transfers.

■ Acquisition of business.

■ Corporate splits.

For share acquisitions (including joint ventures), the thresholds are based both on domestic turnover and the level of shareholding in the target:

■ The aggregate domestic turnover of all corporations within the combined business group of the acquiring corporation must exceed JPY20 billion, and the aggregate domestic turnover of the target corporation and its subsidiaries must exceed JPY5 billion to meet the filing requirement.

■ The acquisition must result in the combined business group of the acquiring corporation newly holding more than 20% or 50% of the total voting rights of all the shareholders of the target (so an acquisition that increases a shareholding from 19% to 21% is subject to a filing, while an acquisition that increases a shareholding from 21% to 49% does not require one). A minority ownership of over 20% may be caught regardless of whether or not the acquirer takes control of the target company.

A "joint share transfer" refers to a specific structure that involves two or more companies transferring their shares into a new holding company in exchange for shares from that holding company. For mergers and joint share transfers, the thresholds are based on domestic turnover. The aggregate domestic turnover of the combined business group of one of the merging companies, or of one of the companies intending to conduct the joint share transfer, must exceed JPY20 billion to meet the filing requirement. The aggregate domestic



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turnover of the combined business group of another participating company must exceed JPY5 billion.

For acquisition of business, the thresholds are based on domestic turnover. The aggregate domestic turnover of all companies within the combined business group of the acquiring company must exceed JPY20 billion to meet the filing requirement. For the transferring company, separate thresholds are applied depending on whether the target business is:

■ The whole business of the company, in which case a threshold of JPY3 billion of domestic turnover applies to the domestic turnover of the transferring company.

■ A substantial part of the business, in which case a threshold of JPY3 billion of domestic turnover applies to the domestic turnover pertaining to the target business.

With corporate splits, there are a number of relevant thresholds depending on the structure of the transactions, but the JPY20 billion and JPY5 billion thresholds (or lower thresholds) similarly apply.

Limitation period. Generally, for reportable transactions, the JFTC can only issue a cease-and-desist order (see Section I) during the Phase I or II review period. For non-reportable transactions, there is no limitation period.

III. Notification

A. What Are the Notification Requirements for Mergers?

1. Mandatory or Voluntary

Pre-merger notification under merger control is mandatory where numerical thresholds are met. Parties to a non-reportable transaction can consult with the Japan Fair Trade Commission (JFTC) for an informal review of it before its implementation.


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2. Timing

There is no definite timeline. However, given the existence of a 30-day waiting period and the parties' need to obtain the "green light" from the JFTC before closing, it is necessary to submit a pre-merger notification before the expected date of closing (at least 30 days in advance).

3. Pre-Notification Formal/Informal Guidance

The JFTC's position as described in the Policies Concerning Procedures of Review of Business Combination (2011) (Policies for Merger Review) is that, before filing, the JFTC will only consult on how to fill out the form. However, in practice, the JFTC is flexible about having informal discussions with potential notifying parties on request or voluntary submission of relevant materials before the formal filings.

4. Responsibility for Notification

For a merger, corporate split or joint share transfer, both companies intending to effect the transaction are jointly responsible for the filing. For a share acquisition or acquisition of business, only the acquiring company is responsible for the filing.

5. Relevant Authority

The JFTC is the relevant authority.

6. Form of Notification

Depending on the types of transactions (see Section II.A), different notification forms are used. No English translation is provided by the JFTC.

7. Filing Fee

No filing fee is payable.

8. Obligation to Suspend

There is a general 30-day waiting period for reportable transactions. This waiting period cannot be extended (even in Phase II cases), but most parties refrain from closing pending Phase II review. The waiting period can be shortened on request.



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IV. Procedure and Timetable

A. What Are the Applicable Procedures and Timetable? The standard 30-day waiting period applies to reportable transactions. If the Japan Fair Trade Commission (JFTC) wishes to review the transaction in more detail, a Phase II review is opened within the longer period of either:

■ 120 calendar days from the date of receipt of the initial notification.

■ 90 calendar days from the date of the JFTC's receipt of all of the additionally requested information.

The JFTC does not have the power to "stop the clock" in either of the Phase I or Phase II review periods, although it is possible for the notifying party to "pull and re-file" the notification during the Phase I period and to intentionally delay the timing of completion of submission of all the additionally requested information during the Phase II period.

With a Phase II review, the JFTC asks for comments from the general public. After receipt of all necessary information from the parties, the JFTC either:

■ Gives notification to the effect that it will not issue a cease-and-desist order, in which case the JFTC makes public the results of the Phase II review.

■ Provides a prior notice consisting of, among other things, the draft of the cease-and-desist order, the reasons for it and the list of supporting evidence.

This chapter will focus on the first bullet point only, since there has not been a case where a prior notice has been issued by the JFTC since the introduction of the prior notice system in 2006.

For an overview of the notification process, see flowchart, Japan: merger notifications at https://uk.practicallaw.thomsonreuters.com/6-504-3671?originationContext=document&transitionType=DocumentItem&contextData=(sc.Default).

An English version of the notification process is available on the JFTC's website (www.jftc.go.jp/en/legislation_gls/imonopoly_guidelines.files/pcbr.pdf).


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V. Publicity and Confidentiality

A. How Much Information Is Made Publicly Available Concerning Merger Inquiries? Is Any Information Made Automatically Confidential and Is Confidentiality Available on Request?

1. Publicity

The filing of a pre-merger notification is treated as confidential. The following are the exceptions:

■ As stated in the Policies Concerning Procedures of Review of Business Combination (2011) where a merger review moves on to Phase II, the Japan Fair Trade Commission (JFTC) publicly invites opinions and comments from third parties, but without disclosing the details of the information that the JFTC has.

■ At the end of a Phase II review (see Section IV.A).

■ Once a year (in May or June), the JFTC publishes an annual review on merger cases consisting of statistics and a summary of review results for approximately ten cases, including cases that did not advance to Phase II.

■ The JFTC publishes in its Annual Report (in October) transactions which had been cleared and on which a mandatory report of closing was filed during the last fiscal year.

2. Automatic Confidentiality

In general, all information is automatically kept confidential.

3. Confidentiality on Request

The exception in bullet three above (see above, Publicity) is based on the consent of the parties to the transactions. Parties whose transaction did not move to Phase II should be able to refuse to grant consent to disclosure of all or part of the relevant information (except for the existence of closed transactions) in this regard.



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VI. Rights of Third Parties

A. What Rights (if Any) Do Third Parties Have to Make Representations, Access Documents or Be Heard During the Course of an Investigation?

1. Representations

There is no legal basis on which third parties have the right to oppose a pending merger. It is important for any third parties that have comments on pending transactions to collect information and inform the Japan Fair Trade Commission (JFTC) on their own initiative.

2. Document Access

Third parties cannot access the case records held by the JFTC.

3. Be Heard

Any party can approach the JFTC and submit opinions and comments concerning reportable or non-reportable mergers. In addition, in some Phase I (on obtaining consent from the parties) and many Phase II cases, the JFTC requests that third parties fill out questionnaires prepared by the JFTC.


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VII. Substantive Test

A. What Is the Substantive Test? The Guidelines to Application of the Anti-Monopoly Act concerning Review of Business Combination (as amended in 2011) (Merger Guidelines) explain various factors that can be taken into account by the Japan Fair Trade Commission (JFTC) when assessing if the effect of notified transactions may be to substantially restrain competition in any market. Specifically, the Merger Guidelines provide an analysis of the substantive test for each type of transaction, for example:

■ Horizontal.

■ Vertical.

■ Conglomerate transactions.

It is also suggested in the Merger Guidelines that the JFTC will closely analyse market conditions both before and after the transaction from various viewpoints, including whether the transaction may facilitate concentration between market players, in order to ultimately determine the actual impact of the notified transaction on competition.

A review of horizontal mergers starts with how to define markets (or a "particular field of trade" under the Anti-Monopoly Act), typically using the "small but significant and non-transitory increase in price" (SSNIP) test. The Herfindahl-Hirschman Index (HHI) determines if one of the safe-harbour thresholds is met. If none of the thresholds are met then various factors as stated in the Merger Guidelines, including the following, are used to assess the impact of the merger:

■ Import.

■ New entry.

■ Competitive pressure from neighbouring markets.

■ Buyers' bargaining power.

There is no separate test for deciding whether to open a Phase II investigation.

B. What, if Any, Arguments Can Be Used to Counter Competition Issues (Efficiencies, Customer Benefits)?

The Guidelines to Application of the Anti-Monopoly Act concerning Review of Business Combination (as amended in 2011) (Merger Guidelines) concede that efficiency can be used to counter competition issues. However, as the Merger Guidelines add a number of preconditions for such use and there are rarely cases where efficiency-related arguments succeed, any party to a proposed transaction should not expect such arguments to be effective.



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C. Is It Possible for the Merging Parties to Raise a Failing/Exiting Firm Defence?

The failing firm defence has played a significant role in obtaining clearance in many seemingly difficult mergers. There is an ongoing debate on the nature of the failing firm defence. Although the majority view is that it can reduce adverse effects on competition or adverse effects can be minimal, the Japan Fair Trade Commission (JFTC) has not ruled out the possibility to characterise it as a social welfare-related factor, in other words to accept reduced competition to reduce the number of workers that will become unemployed.

VIII. Remedies, Penalties and Appeal

A. What Remedies (Commitments or Undertakings) Can Be Imposed as Conditions of Clearance to Address Competition Concerns? At What Stage of the Procedure Can They Be Offered and Accepted?

The Guidelines to Application of the Anti-Monopoly Act concerning Review of Business Combination (as amended in 2011) state that while there are structural and behavioural remedies, the remedies should, in principle, be structural. However, the Japan Fair Trade Commission (JFTC) sometimes accepts behavioural remedies in highly challenging cases.

In most cases, remedy proposals are made by the parties during Phase II. However, it is possible to submit a well considered package of remedies during Phase I and avoid Phase II investigation. Thermo Fisher Scientific, Inc.'s acquisition of Life Technologies Corporation is an example of this (www.jftc.go.jp/en/pressreleases/yearly-2014/June/140611.files/140611.pdf).

The following has come part of the remedy package accepted by the JFTC:

■ An annual report, to ensure compliance with the remedy.

■ The appointments of a monitoring trustee.

■ The appointment of a divestiture trustee.


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B. What Are the Penalties for Failing to Comply with the Merger Control Rules?

1. Failure to Notify Correctly

A criminal fine of up to JPY2 million is imposed on both individuals and corporations that fail to file a pre-merger notification.

2. Implementation Before Approval or After Prohibition

A criminal fine of up to JPY2 million is imposed on both individuals and corporations that breach the waiting period. A criminal fine of up to JPY3 million and/or imprisonment of up to two years is imposed on individuals and a criminal fine of up to JPY300 million is imposed on corporations that breach a final and conclusive cease-and-desist order.

3. Failure to Observe

As long as the remedies are a part of the commitment offered by the parties, rather than a part of a cease-and-desist order (this is quite unlikely, see Section IV.A), failure to implement any remedies is not subject to a penalty. However, the Japan Fair Trade Commission (JFTC) could promptly issue a cease-and-desist order.

The Public Prosecutors' Office can conduct compulsory execution against, or detain in a workhouse, an individual who fails to pay a criminal fine.

C. Is There a Right of Appeal Against the Regulator's Decision and What Is the Applicable Procedure? Are Rights of Appeal Available to Third Parties or Only the Parties to the Decision?

1. Rights of Appeal

A recipient of a cease-and-desist order (that should be identical to the filer) can file a lawsuit to quash the Japan Fair Trade Commission's (JFTC) order with the Tokyo District Court.

2. Procedure

A recipient of a cease-and-desist order must file a complaint with the Tokyo District Court within six months from the day when it is notified of the cease-and-desist order. In the



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absence of extraordinary circumstances, it would take at least two years for the court to reach a decision.

3. Third Party Rights of Appeal

A third party can have standing in a lawsuit to quash the JFTC's cease-and-desist order assuming he has a valid legal interest. A third party that is unhappy with the JFTC's failure to issue a cease-and-desist order could theoretically file a lawsuit to ask the court to order the JFTC to do so. However, there are many preconditions for the legality of such a lawsuit, which are difficult to prove the existence of, including the probability of grave injury to that third party.

IX. Automatic Clearance of Restrictive Provisions

A. If a Merger Is Cleared, Are Any Restrictive Provisions in the Agreements Automatically Cleared? If They Are Not Automatically Cleared, How Are They Regulated?

There are no clear regulations on whether if a merger is cleared, any restrictive provisions in the agreements are automatically cleared. However, if the parties explain to the Japan Fair Trade Commission (JFTC) any restrictive provisions that are an indispensable part of the proposed transaction in reasonable detail, it is unlikely that the JFTC would try to challenge them later, so long as the real practice of the merging parties does not deviate from the explained restrictive provisions. Restrictive provisions for which it is worth considering this strategy include non-compete obligations.


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X. Regulation of Specific Industries

A. What Industries (if Any) Are Specifically Regulated? An acquisition by a bank or an insurance company of more than 5% or 10%, respectively, of voting rights in another Japanese company is prohibited, except for certain statutory exemptions. These acquisitions are also subject to parallel regulations under the Banking Act and Insurance Business Act.

B. Has the Regulatory Authority in Your Jurisdiction Issued Guidelines or Policy on Its Approach in Analysing Mergers in a Specific Industry?

The Japan Fair Trade Commission (JFTC) has not issued guidelines or policy on its approach in analysing mergers in a specific industry.

XI. Joint Ventures

A. How Are Joint Ventures Analysed under Competition Law? Joint ventures (a term that is not defined under the Anti-Monopoly Act) must also be notified to the Japan Fair Trade Commission (JFTC) if they satisfy the thresholds for share acquisitions (see Section II.A). Unlike the regime in the EU, Japanese law does not make a distinction between full-function and non-full-function joint ventures and does not have a concept of joint control.



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XII. Inter-Agency Co-Operation

A. Does the Regulatory Authority in Your Jurisdiction Co-Operate with Regulatory Authorities in Other Jurisdictions in Relation to Merger Investigations? If So, What Is the Legal Basis for and Extent of Co-Operation (in Particular, in Relation to the Exchange of Information, Remedies/Settlements)?

The Japan Fair Trade Commission (JFTC) occasionally co-operates with foreign competition authorities, particularly when working on multinational merger cases. Article 43-2 of the Anti-Monopoly Act (AMA) allows the JFTC to provide foreign competition authorities with information. While the extent of co-operation is rarely publicly announced by the JFTC, it is believed that the JFTC and its counterparts discuss both factual information and also legal issues, including sufficiency of any remedy proposals.

XIII. Recent Mergers

A. What Notable Recent Mergers or Proposed Mergers Have Been Reviewed by the Regulatory Authority in Your Jurisdiction and Why Is It Notable?

1. Acquisition of Best Denki by Yamada-Denki

In December 2012, the Japan Fair Trade Commission (JFTC) cleared the acquisition of the majority of shares of Best Denki Co, Ltd (Best Denki) by Yamada-Denki Co, Ltd (Yamada-Denki) with certain conditions (www.jftc.go.jp/en/pressreleases/yearly-2014/June/140611.files/140611.pdf).

Yamada-Denki and Best Denki both operate directly owned and franchised electrical appliance retail stores all over Japan, with the former being the leading retailer. The JFTC found that the parties were competing with each other in 253 geographical areas where stores of both parties were located within a 10-kilometre radius. An examination of the


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competitive situation in each area (the JFTC did not use an orthodox market share analysis, but focused on the competitive behaviour of the parties in each area) indicated competitive concerns in ten out of the 253 areas. Yamada-Denki then offered to enter into a contract to divest, in principle, one store in each of the ten areas (either the store of Yamada-Denki or Best Denki) to a third party. Yamada-Denki further offered to complete the signing of these contracts within about seven months of the acquisition and to promptly resort to bidding procedures after this deadline. This is the first case where the offered remedies mention the use of a bidding procedure to divest assets where a voluntary divestment is not successful within a time limit. The JFTC is understood to have considered these offers together with the competitive pressures from neighbouring markets (including geographically neighbouring markets and markets for internet shopping) and concluded that the offered remedies were sufficient.

The abandoned merger case between Applied Materials, Inc. and Tokyo Electron Limited is notable given the involvement of a big Japanese manufacturer, the international nature and complexity of the case. However, we understand that the JFTC will not publish the results of review, as the parties withdrew a premerger notification.

XIV. Proposals for Reform

A. Are There Any Proposals for Reform Concerning Merger Control?

Since the Policies Concerning Procedures of Review of Business Combination (2011) was introduced in mid-2011 and brought about significant changes to merger review process, there are no pending serious proposals for reform.



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XV. Online Resources

A. Japan Fair Trade Commission (JFTC) W www.jftc.go.jp (Japanese) www.jftc.go.jp/en (English)

Description. The JFTC's official website publishes the original Japanese texts of the Anti-Monopoly Act (AMA), guidelines and case law. It is frequently updated (almost daily), but the English website does not contain as much information as the Japanese website. The English website publishes non-binding translations of the AMA and various rules and guidelines.

XVI. The Regulatory Authority

A. Japan Fair Trade Commission (JFTC) T +81 3 3581 5471

F Not applicable

E Not applicable

W www.jftc.go.jp/en

Outline structure. The JFTC was established in 1947 as an independent administrative office with broad enforcement powers and is composed of a chair and four commissioners.

Responsibilities. The JFTC is responsible for all competition-related matters (excluding those covered by the Consumer Affairs Agency, such as consumer protection type issues), including merger control and international co-operation.

Procedure for obtaining documents. Information is published occasionally on its website, but third parties are not allowed access to the JFTC's case files. The website for the Supreme Court of Japan also has relevant information (www.courts.go.jp/english).


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XVII. About the Authors

A. A Yusuke Nakano

Anderson Mōri & Tomotsune

T +81 3 6888 1065

F +81 3 6888 3065

E [email protected]

W www.amt-law.com/en/professional/profile/YSN

Professional qualifications. Japan, 1997; New York, 2002

Areas of practice. Competition; anti-trust.

Non-professional qualifications. LLB, The University of Tokyo, 1994; LLM, Harvard Law School, 2001

Recent transactions

■ Assisting six parties in auto-parts investigations.

■ Representing a Japanese company in Power Cables case.

■ Assisting a Japanese company against which a large-scale private monopolisation investigation was launched by the Japan Fair Trade Commission (JFTC) and terminated without any sanctions.

■ Lead counsel in a global leniency application project by a Japanese company.

■ Lead counsel in a global merger filing project by a Japanese company.

■ Assisting a foreign company in the first foreign-to-foreign merger case that the JFTC launched an investigation against.

■ Representing a foreign company that submitted opinions and evidence to the JFTC in opposition to a certain merger.

Languages. Japanese, English

Professional associations/memberships. Daini Tokyo Bar Association; American Bar Association, Section of Antitrust Law; Adjunct Lecturer, Hitotsubashi University (2004, 2007 to 2009) and Hitotsubashi Law School (2009 to 2013); Japan Competition Law Forum; Member, Council of Experts for Promoting Translation of Japanese Laws and Regulations into Foreign Languages, Cabinet Secretariat (2006 to 2009); International Bar Association.

Publications



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■ Leniency Regimes, European Lawyer Reference, fifth edition, 2015.

■ Competition Law in Asia-Pacific: A Practitioner's Guide, Kluwer Law International, 2015.

■ Introduction to Japanese Business Law & Practice, LexisNexis Japan, second edition, 2014.

■ The Merger Control Review, Law Business Research, sixth edition, 2015.

B. Atsushi Yamada Anderson Mōri & Tomotsune

T +81 3 6894 1037

F +81 3 6894 1038

E [email protected]

W www.amt-law.com/en/professional/profile/ATY


Areas of practice. Competition; anti-trust.

Non-professional qualifications. LLB, The University of Tokyo, 1994; LLM, Cornell Law School, 2003

Recent transactions

■ Assisting parties in an auto-parts investigation conducted by multiple agencies.

■ Assisting a global mobile technology company in relation to an alleged unfair trade practices case initiated by the JFTC.

■ Assisting a Japanese construction company in relation to an alleged cartel case initiated by the JFTC.

■ Handling merger filing in Japan and in China in relation to integration of LPG business by Japanese companies.

■ Handling merger filing in Japan, China, Korea and Taiwan in relation to integration of lead frame business by Japanese companies.

■ Regularly providing advice to major companies in various industries, such as information technology, pharmaceutical, manufacturing, construction, transportation, financial institutions and trading houses.



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Professional associations/memberships. Tokyo Bar Association; American Bar Association, Section of Antitrust Law; Japan Competition Law Forum; International Bar Association; Inter-Pacific Bar Association, Competition Law Committee; Non-governmental adviser for the International Competition Network.

C. Takahiko Itoh Anderson Mōri & Tomotsune

T +81 3 6894 1093

F +81 3 6894 1094

E [email protected]

W www.amt-law.com/en/professional/profile/TJI


Areas of practice. Competition; anti-trust; mergers and acquisitions.

Non-professional qualifications. LLB, The University of Tokyo, 1997; LLM, Stanford Law School, 2007

Recent transactions

■ Assisting a global mobile technology company in relation to an alleged unfair trade practices case initiated by the JFTC.

■ Assisting a Japanese construction company in relation to an alleged cartel case initiated by the JFTC.

■ Handling merger filing in Japan and in China in relation to integration of LPG business by Japanese companies.

■ Assisting HSR filing by a Japanese company which acquired a US foundry for US$1.3 billion.

■ Handling merger filing in Japan, China, Korea and Taiwan in relation to integration of lead frame business by Japanese companies.


Professional associations/memberships. Daini Tokyo Bar Association; American Bar Association, Section of Antitrust Law; Japan Competition Law Forum; International Young Lawyers Association, Antitrust Commission; International Bar Association; Non-governmental adviser for International Competition Network.

Publications



24

■ Co-author, Essential Points of Japan M&A Practice, Shoji Homu, 2015.

■ Trends of the Competition Las Policy in Russia, Fair Trade, No. 741, 2012.

■ Co-author, Practical Solutions to Avoid Breaching Antitrust Laws, Business Law Journal, 51 to 52, 2012.

■ Co-author, Theory and Practice of Merger Control Regulations under Anti-Monopoly Act – Guidance for Merger Filings, Shoji Homu, 2010.