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The earliest decision on how to deal with facilitators of a cartel, was the Tokyo
High Court decision in the Asahi Newspaper Co. case of the 9 of March 1953.
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th
In the Asahi Newspaper Co. case, the Tokyo High Court had to decide on a decision of
four newspaper publishers to allocate territories to the newspaper publishers’ distributors.

Based upon the available evidence, it was only possible to prove agreements between
the publishers and the distributors. No agreement could be found to place restrictions
on the publishers themselves. For the application of former Article 4 of the AMA,

the Tokyo High Court held that it was necessary that the business between “independent
enterprises in a competitive relationship” must be restrained. Further, the court also
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stressed that the agreement had to have “common restrictions on business activity by
mutual agreement.” By stating that the concerted practices of former Article 4 of
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the AMA are essentially the same as unreasonable restraints of trade, the Asahi

Newspaper Co. case has influenced the understanding of Article 2(6) of the AMA.
The Tokyo High Court confirmed this position soon after in the Hokkaido Butter

Co. case. Also rendered in 1953, the Tokyo High Court held in the Toho-Shintoho
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case that:

…unreasonable restraint of trade is formed where independent enterprises in

mutual competition jointly impose certain restrictions upon each other and
thereby restrain their free business activities. … if mutuality is lacking in the

restriction, an unreasonable restraint of trade does not occur.
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This interpretation that all participants to the anti-competitive agreement should
be aware of and enjoy the effects of such an agreement, has far-fetching consequences.

One of the most often cited consequences is that the unreasonable restraint prong of

44 Tokyo High Court (Newspaper Distribution Case), 9 March 1953, 3 Shinketsushu 4.
45 Wakui (2018), pp. 76-77.
46 Wakui (2018), p.77.
47 Japan Fair Trade Commission (Hokkaido Butter Co. Case), 18 September 1950, 2 FTC Decision
Reports 108.
48 Tokyo High Court (Toho-Shintoho Case), 7 December 1953, Gyosei Jiken Saiban Reishu 4(12) 3215.

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