Page 152 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

In last order, Article 2(6) of the AMA requires that a restraint needs to be contrary
to the public interest in order to be forbidden. Different interpretations have been

advanced for the concept of public interest. Keidanren advocated to treat public interest
as a concept encompassing various interests of importance for consumers and

the economy. As these interests are not further detailed, this view could create a blanket
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immunity for all kinds of agreements. Opposite to this view is the opinion that public
interest is another way of stating free competition. In practice, this view means that

from the moment a restraint of competition has been found, this restraint is also contrary
to the public interest. The Japanese Supreme Court, ruling in an Oil Cartel case,
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has put forward a view somewhere in the middle. After stipulating that public interest
in principle means free competition, there could be justifications, the Supreme Court
continued, in which retraining competition would be of a higher value than maintaining

competition. Lower courts and scholars tend to follow this view, even though it remains
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unclear what these exceptional circumstances could be to justify a restraint of
competition. The Japanese AMA does not include any system similar to Article 101
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(3) of the Treaty of the Functioning of the European Union that allows the justification
of restraints of competition on well-defined ground. Neither has a Japanese court
formulated such a detailed rule.

3.2 Agreements Mutually Restricting Competition

One of the more peculiar characteristics of Article 3 and Article 2(6) of the AMA
is the requirement of ‘mutually restrict.’ Mutually restrict creates the conundrum for

how to deal with facilitators of a cartel under the AMA. The conundrum is created by
two apparently opposing Tokyo High Court decisions, both of which are still frequently
cited in the literature.

40 Matsushita (1997), p. 172.
41 Matsushita (1997), p. 172.
42 Decision of the Supreme Court (Oil Cartel Case), 24 February 1984, Saiko Saibansho Keiji Hanreishu
38(4) 1287
43 Wakui (2018), pp. 46-48.

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