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seems to hold that a market share around and above 80 percent suffices to establish the
substantiality requirement. Akira Inoue informs that, based on precedents of the JFTC,

it is already safe to conclude that “the combined market share of more than 50 percent
can be said to be an indicator of fulfilling ‘substantial restraint of competition.’”
35
Below 50 percent would position the enterprises in a safe zone, be it that circumstances
surrounding the cartel could still contribute to a finding of a substantial restraint. 36

The substantial restraint in trade develops in a particular field of trade.
Legal scholarship in Japan equals a ‘particular field of trade’ with the concept of relevant

market, be it the product or geographical dimension of the relevant market. Delineating
37
a relevant market for hardcore cartels may sound unconventional. Hardcore cartels are,
in many jurisdictions, indeed illegal just by the coming into existence of the agreement.

No further analysis, such as to what kind of relevant market the agreements belongs,
will be done. That the AMA knows the concept of a relevant market in a provision
dealing with hardcore cartels is due to its unusual history. Yet, the presence of the concept

in the AMA requires its definition. A relevant market is, in general, determined by
demand (supply) substitutability, an exercise in which is examined to what extent
customers are willing to substitute one product by another (or a supplier can easily

switch to the supply of substitutes). This complex exercise is, however, not done by
the JFTC for hardcore cartels. For hardcore cartels, the JFTC limits its task to evaluate

the scope of the agreement. (identifying that considerations could be given to
38
“geographical trade patterns, product identity, and the level of function, or distribution,
common to the entrepreneurs involved.”). In practice, this means that the relevant

product market is determined by the product upon which the price is fixed. When the price
is fixed for products with high sales volume or for products that are fairly similar,

the JFTC further separates the relevant product market according to customers or specific
product.
39

35 Inoue (2012), p. 58.
36 Wakui (2018), p. 91.
37 Wakui (2018), pp. 52-53, Ariga and Rieke (1964), p. 446.
38 Wakui (2018), pp. 53 and 90-91. Ariga and Rieke (1964), p. 446.
39 Van Uytsel (2015), pp. 95-96.

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