As a result of recent amendments to the Anti-monopoly Act, the Japan Fair Trade Commission (JFTC) will soon have the power to accept voluntary commitments from companies. The changes will formally give the JFTC greater flexibility to deal with suspected infringement cases and align its powers with those of other competition authorities. However, in practice, they could have significant implications for the way in which the JFTC deals with both infringement and merger control cases.
The government recently adopted its new model bilateral investment treaty (BIT). The proposed changes, which are likely to limit investor protection, have now been incorporated, together with additional important amendments. The model BIT reflects two government objectives: a sustainable investment policy and a better balance between the rights and obligations of both states and investors.
Consistent with France's reputation as a pro-arbitration jurisdiction, the French civil courts' review of arbitral awards on grounds of public policy is traditionally limited in terms of both standard and content. However, in recent years, the scope of the courts' review in this regard has been tested in certain Paris Court of Appeal decisions which reviewed the underlying evidence rather than the arbitral tribunal's own determinations in the relevant award.
The Japan Fair Trade Commission (JFTC) has been noticeably vocal regarding its intention to keep a close eye on e-commerce. It has already targeted a handful of tech giants and its longstanding image of being a mature but subdued authority does not appear to apply to its role in the digital economy. If anything, the JFTC seems to be striving to be the frontrunner in this regard, ahead of other Asian authorities.
Abuse of a superior bargaining position is a unique category of anti-competitive conduct under the Anti-monopoly Act, and the Japan Fair Trade Commission (JFTC) is increasingly stepping up its enforcement of this type of infringement. As the JFTC has also recently extended its investigation reach to include foreign companies, foreign companies which operate in Japan should remain aware of its enforcement in this regard.
A consultation process on the new draft Dutch model bilateral investment treaty (BIT) recently ended. The government is expected to publish the finalised text of the new model BIT later in 2018. The new model will serve as the basis for renegotiation of the 79 BITs that the Netherlands has with states outside the European Union. Among other things, it proposes significant changes to the conduct of arbitral proceedings.
In recent years, there has been a selection of work-style reforms in Japan, as well as a general move away from lifetime employment and a welcoming of more diversified ways of working, such as self-employment. In this context, the Japan Fair Trade Commission recently published its Report of Study Group on Human Resource and Competition Policy. The report covers three substantive topics: concerted practices, unilateral conducts and undesirable activities.
The Hague Court of Appeal recently ruled that its decision on an application for the enforcement of a foreign arbitral award would not be stayed solely on the basis of pending setting aside proceedings at the place of arbitration. Further, the court ruled that the party requesting exequatur did not have to submit Dutch translations of the award. The decision is notable, as the appeal court explicitly acknowledged the New York Convention's pro-enforcement bias, which several courts have failed to do in recent years.
In 2017 the Japan Fair Trade Commission Competition Policy Research Centre published a report on competition issues surrounding Big Data. While the report did not presume that an oligopoly of digitalised businesses constituted a problem, it recognised that rapid advances in machine learning and data accumulation could boost the power of existing dominant players exponentially and limit opportunities for new market entrants.
Over the past two years, the Japan Fair Trade Commission (JFTC) has significantly amended its guidelines concerning distribution systems, giving particular consideration to the EU Commission's 2010 guidelines on vertical restraints. Although no cases have occurred in which the JFTC has had to decide on the legality of a particular selective distribution system, given that the number of traditional cartel cases is declining, it is likely to shift its focus to this area and follow in the footsteps of the EU Commission.
The Supreme Court recently ruled that a Dutch court may enforce an annulled arbitral award if, among other things, the local annulment decision is based on grounds other than those set out in Article V(1)(a)-(d) of the New York Convention and which are not internationally recognised, or the annulment decision is irreconcilable with Dutch private international law. This judgment offers important guidance as to the Dutch courts' discretion to enforce annulled awards.
Over the past decade, the Japan Fair Trade Commission (JFTC) has made progressive efforts to revise its enforcement practice and procedures in order to align itself more closely with international standards. As part of its modernisation process, the JFTC is gradually adopting other regulators' assessment tools. It is also considering introducing a new penalty calculation system to provide it with more flexibility and discretion in setting fines in return for companies' cooperation.
Parties' ability to choose their arbitrators remains one of the most frequently mentioned advantages of arbitration over litigation. However, this freedom makes sense only if it preserves the overarching duties of arbitrators and judges alike – that is, the duty to be and remain independent and impartial from the parties.
The Amsterdam Court of Appeals recently ruled that the Russian liquidation order regarding OAO Yukos Oil Company is contrary to Dutch public order and therefore null and void. An interesting question is whether the judgment will have a bearing in the appeal of the annulment proceedings concerning the $50 billion Energy Charter Treaty arbitration case between former Yukos shareholders and Russia, which is pending before The Hague Court of Appeal.
The Amsterdam Court of Appeals recently annulled a 2013 Amsterdam District Court decision to set aside a $450 million arbitral award in proceedings between watchmaker Swatch and jeweller Tiffany. The main question for the court of appeals was whether the district court had been correct in holding that the tribunal had exceeded its authority. The judgment, which may be subjected to Supreme Court review, confirms the court's pro-arbitration and enforcement approach.
In a recent decision, the Supreme Court rigorously applied Article III of the New York Convention and ruled that a decision recognising an international arbitral award is no more subject to appeal than a decision recognising a domestic arbitral award. Further, the court rejected the plea that such an appeal should be available under Article 6 of the European Convention on Human Rights.
The Paris Court of Appeal recently set aside an award on the grounds of a violation of the principle of equality of arms. The court had to rule on the Iraq war's impact on due process in arbitral proceedings between the Republic of Iraq and two German companies. This decision comes as a reminder that arbitration is a jurisdictional process where parties and arbitrators, while enjoying considerable freedom and flexibility, should be mindful of due process and fair trial guarantees.
The French courts recently supported the rigorous application of the principle of procedural estoppel and reiterated their commitment to the enforcement of agreements that govern arbitral proceedings. The principle prevents parties from relying on alleged irregularities that affect arbitration proceedings before the French courts if the requesting party has not initially raised them before the arbitral tribunal.
A recent Supreme Court decision confirms French law's strict approach in matters involving arbitrators' independence and impartiality. The court found that despite an arbitrator's previous disclosure that his firm had had an inactive relationship with the parent company of one of the parties to the arbitration, his later failure to disclose that this relationship had resumed created reasonable doubt as to his independence and impartiality.
The jurisdictional duality which characterises the French legal system triggers practical difficulties in international arbitrations, especially when they involve the recognition and enforcement in France of arbitral awards relating to issues of French administrative law. The Cour de Cassation recently decided on this issue, holding that civil courts have jurisdiction to rule on the recognition and enforcement of any foreign arbitral award.