Regulating Abuse of Superior Bargaining Position Under the Japanese Competition Law: An Anomaly or a Necessity?
3(2) Journal of Antitrust Enforcement 302-33
67 Pages Posted: 16 Jan 2018 Last revised: 5 Feb 2021
Date Written: June 4, 2015
Abuse of superior bargaining position has long been a controversial area of Japanese competition law. Even though it is by no means unique to Japan — Korea, Taiwan, France, and Germany among others also have similar regulation — Japan’s abuse regulation has tended to attract more attention globally. One of the main sources of controversy for abuse regulation is whether it is consistent with competition law, and whether it serves any useful economic purpose. This article attempts to address this long-standing debate by examining whether abuse regulation is consistent with the various objectives of competition law and other economic rationales. Having determined that these objectives and rationales provide at best tenuous justifications for abuse regulation, or are inconsistent with the Japan Fair Trade Commission’s current enforcement practices, it proceeds to argue that abuse regulation can be best justified as a supplement to deficient contract law enforcement, which many commentators have noted is particularly serious for small- and medium-sized enterprises in Japan.
Keywords: competition law, Japan, abuse of superior bargaining position
JEL Classification: K21, L40
Suggested Citation: Suggested Citation