2021 Fiscal Year Annual Research Report
Restructuring the Concept of "Abusing Superior Bargaining Position": A Comparative Study of Competition Law in Japan and Taiwan
| Project/Area Number |
21F21309
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| Allocation Type | Single-year Grants |
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| Research Institution | Kyoto University |
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Principal Investigator |
和久井 理子 京都大学, 法学研究科, 教授 (50326245)
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| Co-Investigator(Kenkyū-buntansha) |
CHENG SHIN-RU 京都大学, 法学研究科, 外国人特別研究員
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| Project Period (FY) |
2021-11-18 – 2024-03-31
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| Keywords | Bargaining Power / Abusive Practice / Anti-Monopoly Act / Fair Trade Act / Digital Platforms / Online Retailing Market |
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| Outline of Annual Research Achievements |
The research, "Can the Japanese Anti-Monopoly Act Respond to Emerging Digital Platform Issues? A Comparative Study of Japanese and Taiwanese Antitrust Law", aims to reconsider the concept of “Abusing Superior Bargaining Power” (ASBP) under the Anti-Monopoly Act in Japan and the Fair Trade Act in Taiwan. To achieve this goal, the research was mainly divided into three parts in sequence: studying the Anti-Monopoly Act (AMA), studying the Fair Trade Act, and comparing and analyzing antitrust laws in the two jurisdictions.
The research was launched last November, and is still in progress. In the initial phase, the research has completed a preliminary study of the AMA. It clarified the structure and meaning of elements written in the Article 2(9)(v) of AMA by reading academic literature and the Guidelines published by the Japanese Fair Trade Commission (JFTC), which includes Guidelines Concerning Abuse of Superior Bargaining Position under the AMA.
Beyond ASBP, this research evaluated the impact of JFTC’s current measures on regulating digital platform, such as the Act on Improving Transparency and Fairness of Digital Platforms by having in-depth discussions between Dr. Shin-ru Cheng and host Professor Wakui. All of the discussions and updates have laid a solid foundation for the first part of the research.
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| Current Status of Research Progress |
Current Status of Research Progress
2: Research has progressed on the whole more than it was originally planned.
Reason
The first phase of this research requires an overall understanding of the Japanese antitrust law system, including the AMA, the Designation of Unfair Trade Practices, and the Guidelines issued by the JFTC. In addition, academic works done by scholars and practitioners are also essential to this research.
However, there are two major challenges for the research to seek a certain understanding of the mentioned literature. The first difficulty is language. Most of the literature was written in Japanese, which could somehow result in hurdles in understanding the law and judicial cases. The second challenge comes from differences in the legal system. The United States’ antitrust law is established in the case law system and has been developed for a long time. Also, economic analysis is highly-welcomed to the application of antitrust law to markets, and the promotion of “free markets” has been recognized as the core value of the American antitrust law for decades. All these features are quite distinctive from the practice in Japan, as well as other Asian countries.
Fortunately, these difficulties were effectively solved by collaboration between Cheng and Wakui. The latter is proficient in Japanese and English, which leads to this comparative research to go smoothly and efficiently. Moreover, she has expertise in the Japanese, American, and European antitrust law. Her profound knowledge benefited the research by accurately pointing out the missing points of the research and helping it to extend its scope. Accordingly, this research can go ahead according to plan.
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| Strategy for Future Research Activity |
After finalizing the first phase, the research is going to move on to the next phase, studying the Fair Trade Act in Taiwan, by reviewing scholarly literature and judicial cases. At the same time, the research continues to expand the library by collecting publications that discuss ASBP issues in-depth and with a special focus on digital markets, particularly ones focus on the Japanese market.
Moreover, this research is planning to visit Japanese scholars who have expertise in Japanese antitrust law and who have practical experience in dealing with digital markets, such as online retailing, online media and online networking markets. The proposed academic exchange could lead to a more comprehensive view on the key issue of this research - the role of innovation in the interpretation of ASBP - a very policy-oriented question. Also, this research is planning to present the ongoing research on academic seminars and workshops.
Lastly, the research will also keep an eye on relevant fields of knowledge, such as behavioral economy, negotiation theory, buyer market power, and emerging technology development that could have a strong impact on markets and competition law enforcement (e.g., blockchain and fintech). The unpredictable technology development has the potential to influence competition law interpretation and enforcement, which certainly needs to be considered in this research.
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Research Products
(4 results)
