Kenji Ito is a partner at Tokyo-based Mori Hamada & Matsumoto. He served as an official of the Japan Fair Trade Commission, where he was engaged in a number of high-profile antitrust cases. He has extensive experience of procuring merger clearances, defending clients in antitrust investigations, litigating civil cases, and managing various types of business alliances and transactions. Legal publications have recognised him as one of the top competition lawyers in Japan.
What inspired you pursue a career in competition law?
Competition law is an exciting intellectual pursuit. I get the opportunity not only to learn a great deal about various industries and the dynamics of business competition, but also to assist clients in arriving at important and difficult decisions, and in achieving their business goals. The Japanese competition practice has steadily grown during my career, gaining more importance in the Japanese legal regime and becoming more international in line with the global expansion of clients’ businesses. I enjoy practising in such a rapidly growing environment which has, in turn, motivated me to continue honing my skills in this field.
What qualities make for an effective competition lawyer?
The continuing expansion of businesses, products and services in various ways creates new competition issues, such as recent discussions on digital platforms. Thus, competition lawyers must be open to tackling new issues and quickly catching up on various developments around the world, which is a challenging but stimulating objective. Furthermore, competition lawyers must strive to have an intense understanding of competition dynamics in the real world. Otherwise, their advice would be superficial and impractical. The most important quality of an effective competition lawyer is the ability to carefully listen to clients’ needs, diligently learn relevant facts, and extensively analyse economic effects.
How does your previous experience in the Japan Fair Trade Commission enhance your work in private practice?
As an official, I was involved in a number of high-profile cases and have come to understand how officials analyse, view and decide cases. Even after I left the JFTC, I could foresee the JFTC’s view on and reaction to specific matters, which enables me to provide effective advice with deeper insight.
What are the main challenges currently facing lawyers handling cartel investigations?
The number of cartel cases has recently decreased, partly because large international cases such as those involving auto parts are coming to an end. Young lawyers are, thus, given fewer opportunities to be engaged in large international cases, which may be a challenge for them.
Moreover, it has become more difficult for counsel to predict the magnitude of the future impact of leniency applications. A leniency application would certainly reduce the amount of fines in particular countries where a company files one, but it may trigger numerous investigations and civil lawsuits in other countries around the world. Thus, counsel need to make careful and well-balanced advice in this regard.
How has the approach by authorities to regulate antitrust matters changed since you started practising?
The JFTC continues to aggressively enforce the law against serious violations such as cartels. The new law that the Diet passed in June 2019, which introduced a more flexible and effective leniency system, may cause more aggressive enforcements against cartels.
On the other hand, the JFTC has taken a flexible approach to new issues. It published a white paper on data and competition policies in 2017, and a report on human resources and competition policies in 2018, both of which contain interesting discussions on new issues which were not properly addressed under traditional practice. In addition, one of their current focuses of enforcement is the regulation of competition matters in the digital market, which requires different ideas or tools to better understand its unique features. New developments inevitably encourage the JFTC to take a more flexible stance.
How do you see your practice developing over the next five years?
Since I started in private practice, I have addressed a wide range of international matters such as international cartel investigations and global merger filings. My practice in international matters has grown and I expect that it will continue to do so over the next five years. However, the proportion of my practice may change a bit. While defending against investigations and addressing merger control would continue to be a major part of my practice, new matters such as data, digital platformers, and e-commerce as well as interaction with other regimes such as trade law may account for more of my time and energy.
What advice would you give to someone starting out in the antitrust field?
The area of competition law is very close to business activities. Competition lawyers cannot provide effective advice unless they know the realities of business. It is important not only to study antitrust jurisprudence, but also to continue to have a curiosity about the economic side of various businesses and the real dynamics of the business world.