Page 156 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

Whereas the shift in the understanding of the competitive relationship responds
to the critique of several scholars towards the 1953 Asahi Newspaper Co. case and

the subsequent interpretation of Article 2(6) of the AMA, Wakui informs that the 1993
Social Insurance Agency Seal case has not been able to extend Article 2(6) of the AMA

to vertical agreements. This issue being less important for the issue at stake, she also
mentions that there are still a few scholars arguing that the scope of Article 2(6)
of the AMA “should be expanded to include non-horizontal restrictions, which may be

necessary to regulate hub-and-spoke cartel, in which a non-competitor acts either as
a ringleader or as a facilitator.” Such an explicit request may be understood against
61
the background that in the Social Insurance Agency Seal case there still is a requirement
of a competitive relationship in essence, or as Wakui notes, “the defendant [needs to
62
be] somehow engaged in business relating to the relevant product.” 63

4. Applying the Antimonopoly Law to UBER-Like Algorithms

Algorithms could be put into operation by a supplier, a price leader,
an accountancy firm, retailers separately from each other, or a software operator.
The first three operators of an algorithm reflect a classical hub and spoke, while the latter

two operators of an algorithm exemplify the algorithmic hub and spoke elaborated
by Ezrachi and Stucke.

When a hub and spoke cartel is being operated by a supplier facilitates a price
fixing scheme among retailers, the flow of information goes from the retailers to
64
the supplier. The supplier makes that information available to the other retailers.
Instead of leaving this to a human being, the supplier could install an algorithm to collect

information from the retailers, process it, and then steer the conduct of the retailers.
To set up this kind of price fixing scheme, it is not necessary that the retailers share

61 Wakui (2018), p. 80.
62 Kameoka (2014), p. 45.
63 Wakui (2018), p. 80.
64 If it were a way to guarantee the same price among retailers, we would be dealing with retail price
maintenance and not a hub-and-spoke cartel.

154