Page 144 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

the vertical dimension of this bid rigging cartel is not punished under the AMA.
6
To tackle the vertical dimension, the Japanese legislator had to create a new legislation:

the Act Concerning Elimination and Prevention of Involvement in Bid Rigging
(Act on Preventing Bid Rigging). 7

The kansei dango is an old problem. As technology is moving forward,
the kansei dango problem may manifest itself in a different way. Imagine the situation

in which the role of the bureaucrats is being taken over by algorithms. Would these
algorithms facilitating a cartel equally fall outside the AMA? To answer this question,

different scenarios need to be distinguished in which algorithms can be employed to
reach price fixing. This paper will argue that, as long as the algorithms are used by direct
competitors, the AMA can be applied. Things will become a bit more unclear when

algorithms are used by non-competing third party facilitators. If the third party facilitator
operates the algorithm in the form of unilateral conduct, it may be possible to consider
the application of the unfair trade practices provision of the AMA. This provision is

laid down in Article 19 of the AMA.
The paper is structured as follows. In Section 2, the paper will explain what is

meant by UBER-like algorithms and how they could influence price fixing. The latter
will be done by putting forward different situations in which algorithms could operate

in price fixing. To see how the Japanese AMA will apply to the situations sketched in
the previous section, Section 3 introduces the provision of the AMA applicable to price
fixing, which is Article 3 of the AMA. Before concluding in Section 5, Section 4 considers

how the Article 3 of the AMA applies to the various situations elaborated in the second
section of this paper.

6 See infra 4.2 Bureaucrats as the Linchpin of Bid Rigging outside the Scope of the Antimonopoly Law.
7 Act on Elimination and Prevention of Involvement in Bid Rigging, etc. and Punishments for Acts by
Employees that Harm Fairness of Bidding, etc. (Act No. 101 of 2002). Available at: https://www.jftc.go.jp/en/
legislation_gls/aepibr_files/aepibr.pdf. Accessed 15 December 2020.

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