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วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

Designation is probably the most relevant for discussing algorithms that set a price for
enterprises at different levels of the market.

Paragraph 12 of the 2009 General Designation designates conditional dealings

as an unfair trade practice. Conditional dealings are unjust restrictions of trade that do
not amount to a resale price maintenance (Article 2(9) of the AMA) and exclusive
dealing (Paragraph 11 of the 2009 General Designation). One example of restrictions

for which this Paragraph 12 of the 2009 General Designation is restrictions on price.
Most of the restrictions on pricing that the JFTC has condemned, are restrictions in

which a “supplier eliminates price competition amongst its retailers.” More recently,
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the JFTC sought to apply this provision to parity clauses, which means that a platform
demands its sellers not to set the price on other platforms lower. In doing so, the price

charged across the platforms tend to be the same.
The designation on conditional dealing has two weaknesses. The JFTC is not

able to levy a surcharge, which is an administrative fine taking away the profits made
during the infringement of the AMA, for infringing Paragraph 12 of the 2009 General
Designation. The AMA only gives the power to the JFTC to issue a cease and desist

order for infringements of the designations under the 2009 General Designation.
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Further, such a cease and desist order only follows when a notification has been given

to the enterprise under investigation. Many enterprises respond to this notification.
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As a consequence, the JFTC has barely had the chance to elaborate on the application
modalities of this provision. In recent history, for example, the JFTC had the opportunity

to provide its view on the parity clause, because Amazon decided to voluntarily delete
the parity clause from the Marketplace. Since Amazon changed its behavior subsequent

the notification, the JFTC closed the investigation without explaining Paragraph 12 of
the 2009 General Designation. Therefore, to know whether the designation of
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71 Wakui (2018), p. 191.
72 Wakui (2018), p. 140. It is also stipulated that only the unfair trade practices qualified in the AML can
be subject to a surcharge. For a short description of the problem, Van Uytsel and Uemura (2021).
73 Van Uytsel and Uemura (2021).
74 Van Uytsel and Uemura (2021).

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