Japanese Contract and Anti-Trust Law: A Sociological and Comparative Study

230 Pages·2002·1.52 MB·English

by  Visser t'Hooft

Japanese contract and Anti-Trust Law
Japanese Contract and
Anti-Trust Law
A Sociological and Comparative
Study
Willem M.Visser ‘t Hooft
E.M.Meijers Institute
of Legal Studies
Leiden University
The text of this book was defended as a PhD thesis on March 22nd, 2000, Leiden
University.
First Published in 2002
by RoutledgeCurzon
11 New Fetter Lane,
London EC4P 4EE
Simultaneously published in the USA and Canada
by RoutledgeCurzon
29 West 35th Street, New York, NY 10001
This edition published in the Taylor & Francis e-Library, 2005.
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RoutledgeCurzon is an imprint of the Taylor & Francis Group
© 2002 Willem M.Visser ‘t Hooft
All rights reserved. No part of this book may be reprinted or
reproduced or utilised in any form or by any electronic,
mechanical, or other means, now known or hereafter invented,
including photocopying and recording, or in any
information storage or retrieval system, without permission in
writing from the publishers.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloguing in Publication Data
A catalogue record for this book has been requested
ISBN 0-203-39838-6 Master e-book ISBN
ISBN 0-203-39973-0 (Adobe eReader Format)
ISBN 0-7007-1577-0 (Print Edition)
Table of contents
ACKNOWLEDGEMENTS vii
LIST OF ABBREVIATIONS ix
1 INTRODUCTION 1
1 The Japanese interest in continuing domestic trade 1
relationships
2 Distribution agreements, definition and terminology 3
3 Unilateral termination of distribution agreements 6
4 Problems for distributors and the legal response 9
5 The main purposes of this study 11
6 Structure of this study 13
7 Discussion on Japanese attitudes toward contracts 17
8 Explanation of the following chapters 19
2 JAPANESE CONTRACT LAW AND THE UNILATERAL 21
TERMINATION OF DISTRIBUTION AGREEMENTS
1 Introduction 21
2 Japanese civil and commercial codes 22
3 Case law 25
4 Legal literature 39
5 A brief comparison with the Dutch judicial approach 42
6 Barriers to litigation 43
7 Conclusion 47
3 JAPANESE ANTI-TRUST LAW AND THE 51
UNILATERAL TERMINATION OF DISTRIBUTION
AGREEMENTS
v
1 Introduction 51
2 Substantive Japanese anti-trust law 52
3 Public law enforcement of anti-trust law 59
4 Private vate law enforcement of anti-trust law 63
5 Complaint with the FTC 78
6 conclusion 80
4 TERMINATION DISPUTES WITHIN THE JAPANESE 83
DISTRIBUTION SYSTEM FOR LUXURY COSMETICS
A CASE STUDY: MANUFACTURERS V.
DISCOUNTERS
1 Introduction 83
2 The development of the Japanese luxury cosmetics distribution 87
system
3 Shiseido v. Fujiki 91
4 Kao v. Egawakikaku 100
5 Victories for discounters before the Tokyo district court 103
6 Leading Cosmetics Manufacturers v. Kawachiya 107
7 The first Tokyo High Court decision in favour of Shiseido 111
(september 1994)
8 The FTC recommendation against Shiseido (june 1995) 115
9 The second Tokyo High Court decision in favour of Kao (july 120
1997)
10 The Supreme Court decision (december 1998) 123
11 Conclusion 127
5 DUTCH LAW AND THE UNILATERAL 133
TERMINATION OF DISTRIBUTION AGREEMENTS
1 Introduction 133
2 The situation in the Netherlands 134
3 Dutch contract law 135
4 Anti-trust law 148
5 Applicable contract law and eu anti-trust law in the Dutch 166
distribution system for luxury cosmetics
vi
6 A DISCUSSION ON JAPANESE ATTITUDES TOWARD 179
CONTRACTS
1 Introduction 179
2 The emphasis on cultural factors 180
3 Criticism of the emphasis on cultural factors 184
4 My own conclusion 187
BIBLIOGRAPHY 195
APPENDIX I CASE LAW: JAPAN 207
APPENDIX II CASE LAW: THE NETHERLANDS 211
APPENDIX III CASE LAW: EUROPEAN UNION 213
PUBLICATIONS IN THE MEIJERS SERIES 215
CURRICULUM VITAE 219
Acknowledgements
First and foremost I would like to express my gratitude to the late Prof. A.A.G. Peters who
was my supervisor when I started this research in 1993. He was a great inspiration to me.
His enthusiasm for the study of Japanese law motivated me to pursue this research. His
proposal that I conduct a few in-depth case studies in Japan has indeed proved to be very
rewarding.
With the financial support of a two-year scholarship from the Japanese Ministry of
Education I was able to conduct my research at the faculty of law of Tokyo University from
1993 to 1995. I am profoundly indebted to Prof. Yoshihisa Nōmi and Prof. Takashi Uchida
who were my supervisors during this period. For the many stimulating discussions with
them, which were very helpful in developing my research questions, I am very grateful. I
also wish to express my appreciation for the assistance that I received from many other staff
members of the faculty of law of Tokyo University.
In particular, I would like to thank Mitsuo Matsuzawa (the General Editor of the
Commercial Law Centre) who assisted me in my field research into the termination disputes
within the Japanese distribution system for luxury cosmetics. Through his numerous
contacts he was able to arrange the many interviews I conducted in Japan. Without his
assistance these interviews would not have been possible. Furthermore, he continuously
provided me with much of the necessary Japanese legal material. And, of course, I would
also like to express my sincere appreciation to all those I interviewed in Japan.
A grant from the Isaac Alfred Ailion Foundation enabled me to continue my research at
Leiden University and to return to Japan during November 1997 for the second part of my
field research.
I would also like to acknowledge the support I received from the Dutch law firm, Trenité
van Doorne, where I worked as a part-time employee from 1996 to 1998. Their strong
interest in my research was very stimulating. They also provided numerous opportunities
for gathering information on Dutch law and practice, which enabled me to bring my research
in Japan into perspective.
I also wish to express my gratitude to the practicing attorneys G.van der Wal and
R.F.K.Visser who provided invaluable information about the termination disputes within
the Dutch distribution system for luxury cosmetics.
viii
I am very grateful to Nobuko Karthaus-Tanaka who corrected my correspondences
written in Japanese. And I thank Peter Morris who was very helpful in proof reading and
correcting my English.
Last but not least, without the strong support and encouragement of my wife, Lucie, I
would never have been able to finish this study.
List of abbreviations
BGB Bürgerliches Gesetzbuch
ECLR European Competition Law Review
ECR European Court Reports
FTC Fair Trade Commission
FTI Fair Trade Institute
HR Hoge Raad (Dutch Supreme Court)
HR Helena Rubinstein
KG Kort Geding
LDP Liberal Democratic Party
Minshū Saikō Saibansho Minji Hanrei shū (Collection of Civil Cases of the
Supreme Court)
MITI Ministry of International Trade and Industry
M&M Markt & Mededinging
NJ Nederlandse Jurisprudentie (Dutch Law Reports)
NJB Nederlands Juristenblad
NTBR Nederlands Tijdschrift voor Burgerlijk Recht
o. c. op. cit.
OJ Official Journal of the European Communities
p (p). page (s)
PRG Praktijkgids
Rvdw Rechtspraak van de Week (Dutch Law Reports)
SEW Sociaal-Economische Wetgeving
TVVS Tijdschrift voor Verenigingen, Vennootschappen en Stichtingen
v. versus
Vol. Volume