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the information provided is not more than conveying the message that he has ‘opened
his store.’ In an online setting, where price setting can be made dependent on many

more parameters than in an offline situation, this may be different. The more shops open
the lower the price will be, or vice versa. But the algorithm does more. The algorithm

stipulates that a driver in a similar situation will demand the same price from the rider.
There is no communication at all about this aspect. This is decided by the algorithm.
Hence, can we speak of communication about the price between competing drivers?

The situation resembles more a unilateral imposition of a price to be asked for a service
offered by an enterprise in a different level of the market.

Mark Anderson and Max Huffman on the one hand and Julian Nowag on
the other hand have shed light on the imposition of a price on an enterprise in another level

of the market. They have discussed whether resale price maintenance could be applied.
68
Resale price maintenance has specific application requirements. One of the requirements
is the transfer of a product from one level of the production or distribution chain to

the other. When applied to Uber, all authors agree that the business scheme of Uber
does not involve the sales of a product to the drivers which they subsequently sell to
the riders. Since the AMA also presupposes the sale of goods to apply its provision on

resale price maintenance, it will also be for the same reason as in the US and the EU
that Article 19 and 2(9)(iv) of the AMA cannot be applied to the Uber business scheme. 69

How then to qualify the price imposed by Uber on the drivers? With its rich
diversity on unfair trade practices, provisions that the JFTC applies to vertical agreements

and unilateral conduct, the AMA has some backup provisions that can apply in case
the resale price maintenance provision cannot. One of these provisions is Article 2(9)(vi)

of the AMA, which gives the JFTC the power to designate practices that should be
considered as unfair. One of these designations is codified in the General Designation
last revised in 2009 (2009 General Designation). Paragraph 12 of the 2009 General
70

68 Nowag (2018), p. 19. Anderson and Huffman (2017), pp. 907-915.
69 Wakui (2018), p. 181
70 Designation of Unfair Trade Practices (Fair Trade Commission Public Notice No. 15 of June 18, 1982
as revised in 2009). Available at: https://www.jftc.go.jp/en/legislation_gls/unfairtradepractices.html. Accessed 15
December 2020.

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