International scope of the Japanese Anti-monopoly Act in cross-border cartel cases: a Japanese approach to ‘extraterritorial application’

Abstract

Abstract Most states have a national anti-trust or competition law to regulate anti-competitive activities. There is no doubt that, in purely domestic cases, where an anti-competitive activity and its anti-competitive effects have occurred within a state, that state’s national competition authority can regulate the activity by applying its competition law. For cross-border cases such as where anti-competitive activities are carried out abroad but have anti-competitive effects on the domestic or internal market of that state or region, it has been gradually accepted that a state can apply its competition law to the activities on the basis of the effects within its territory. However, it should be noted that states have approached such cases differently. In 2017, the Supreme Court of Japan first decided the international scope of the Japanese Anti-Monopoly Act (JAMA) in cross-border cartel cases and clarified that the JAMA could apply to anti-competitive activities conducted outside of Japan if the activities in question disturbed the free competition economic order of Japan. The court did not mention the effects doctrine or the territorial principle. This article examines on what grounds and how far the JAMA can and should apply to cross-border cartel cases by analysing the Supreme Court judgement.