The Japan Fair Trade Commission’s proposed ‘commitment procedure’: a more flexible approach to investigations of potential anti-competitive behavior?

I. Introduction
In December 2016, Japan’s legislature passed new legislation which introduced a proposed voluntary procedure designed to enable the swift resolution of potential cases of anti-competitive conduct under investigation by the Japan Fair Trade Commission (the ‘JFTC’).

Pursuant to this so-called ‘commitment procedure’, if a company subject to a JFTC investigation offers a ‘commitment’ (in other words, an undertaking) to address concerns expressed to the company by the regulator in the regulator’s preliminary assessment of the behavior in question, the JFTC has the discretion to accept such commitment. This would result in the regulator closing the investigation without concluding whether there has been a violation of the Japanese Antimonopoly Act.

The new legislation was originally part of the parcel of reforms to be introduced in Japan as required by the Trans-Pacific Partnership (‘TPP’) agreement. As things currently stand, the new legislation (and the commitment procedure itself) will only come into effect if and when the TPP agreement is executed. However, due to the dumping of the TPP by the Trump administration, many stakeholders now argue that the commitment procedure should be brought into effect notwithstanding whether or not the TPP ever materializes.

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