Kenji Ito is a partner at Tokyo-based Mori Hamada & Matsumoto. He served as an official at the Japan Fair Trade Commission, where he was engaged in a number of high-profile antitrust cases. He has extensive experience in procuring merger clearances, defending 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 DO YOU ENJOY MOST ABOUT WORKING IN SUCH AN INTERNATIONAL AREA OF LAW?
Competition law is an exciting intellectual pursuit. I learn a lot about various industries and the dynamics of business competition. I am grateful to be involved in important and difficult decisions for clients and to be able to help them achieve their business goals. As business activities continue to expand globally and create new competition law issues in various jurisdictions, practitioners must quickly catch up with new developments, which is a challenging but stimulating mission. Given that competition laws of different countries have similarities, I always enjoy discussing various issues with practitioners and scholars around the world.
HOW HAS THE SCOPE OF YOUR PRACTICE CHANGED OVER THE COURSE OF YOUR CAREER SO FAR?
I was involved in a number of high-profile cases, which were mainly domestic cases, during my career as a Japan Fair Trade Commission (JFTC) official; however, private practice has allowed me to address a wide range of international competition law matters such as international cartel investigations and global merger reviews. I have recently become more engaged in tech matters such as platform businesses and e-commerce in the digital economy. The scope of my practice has significantly expanded as the business activities of our clients have developed globally.
HAVE YOU NOTICED A SLOWDOWN IN CARTEL ENFORCEMENT IN JAPAN RECENTLY? IF SO, WHY?
The number of cartel cases has recently decreased slightly because large cases, such as the auto parts investigation, are coming to a close. However, as the authorities continue to express their intention to aggressively enforce the law to combat illegal cartels, we still need to alert clients on the strict attitude of the authorities against collusive activities. Also, the JFTC intends to amend the law to introduce a more flexible, effective surcharge system.
HOW, AND TO WHAT EXTENT, IS THE JFTC ADOPTING A MORE FLEXIBLE APPROACH TO COMPETITION LAW?
The JFTC is active and enthusiastic in addressing new competition law matters. They 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 new and interesting discussions on competition law. In those papers, the JFTC appeared to take a more flexible stance on the applicability of law to areas where the JFTC had not previously applied the law. Further, they are placing their enforcement focus on business activities in the digital economy which cannot be properly addressed by using existing legal interpretations only. Those circumstances would inevitably require the JFTC to take a more flexible approach to competition law.
ARE THERE ANY AREAS IN WHICH THE JFTC IS PARTICULARLY ACTIVE AT THE MOMENT?
As mentioned earlier, the JFTC is particularly active in pursuing cases in the digital economy. They recently investigated platform giants such as Amazon and Apple, and continue to express their intention to closely watch IT and data-related industries. I believe that this tendency will continue for some time.
WHAT CONCERNS DO CLIENTS HAVE FOLLOWING THE JFTC’S DECISION TO AMEND THE GUIDELINES SURROUNDING DISTRIBUTION SYSTEMS?
The JFTC significantly amended the distribution guidelines in 2017, which clarified the standards of legality for vertical restraints including online distributions. The amendments made the guidelines easier to understand and more in line with international standards for vertical restraints. As the amendments reflect the JFTC’s existing practice, there are no significant concerns for clients regarding the amended guidelines.
HOW DOES DATA INTERACT WITH COMPETITION LAW AND POLICY?
One of the important issues that competition authorities currently face is how to respond to developments in the digital economy. At the same time, technology and manufacturing companies are also interested in how to handle new competition matters over the internet of things, AI, data and algorithms in the wake of the JFTC’s white paper on these issues. The accumulation of data may allow certain strong companies such as digital platformers to control the market, which will make it difficult for other companies to viably compete against them. Those circumstances will create a number of new challenges in applying competition law as it is currently applied and require practitioners to take more flexible legal approaches in order to guide clients toward a good resolution.
HOW DOES MORI HAMADA & MATSUMOTO DISTINGUISH ITSELF FROM COMPETITORS IN THE MARKET?
Our antitrust practice is one of the firm’s largest practice groups, with specialist partners and associates, many of whom have experience working at the JFTC and/or have studied and practised competition law in the USA or Europe. We are strong in handling complex and large-scale cross-border merger filings as well as global investigations for domestic and international clients. Through extensive experience in international matters and working with leading antitrust experts around the world, our lawyers are fully aware of both the local and the international dimensions of antitrust and competition issues. We are regularly involved in high-profile and challenging cases and have accumulated expertise and experience which enable us to provide invaluable advice to clients. Many of the merger cases which we have successfully cleared have been published by the JFTC as being among its most important cases.
Kenji Ito is “very well known” in the Japanese market where he ranks as a leading figure for competition law matters, particularly when it comes to merger clearance and cartel investigations.
Kenji Ito is a partner at Mori Hamada & Matsumoto, based in Tokyo, Japan, and primarily practises in the area of antitrust and competition law. He served as an official at the Japan Fair Trade Commission, the competition authority in Japan, where he was engaged in a number of high-profile antitrust cases. He has extensive experience in gaining merger clearance for cross-border transactions, defending cartel investigations, litigating civil antitrust cases, and managing complex international competition matters including distribution, licensing, joint ventures, and various types of business alliances. He has addressed a wide range of competition matters in various industries including technology, media, e-commerce, telecoms, finance, transportation, energy, natural resources, pharmaceutical, electronics, chemicals, automotive, food, consumer products, wholesale and retail. Legal publications such as GCR, Who’s Who Legal, Chambers and Best Lawyers recognise him as one of the leading lawyers in Japan. He has been appointed as a non-governmental adviser to the International Competition Network. He frequently writes and speaks on competition law matters for various publications and at international conferences.
Kenji Ito is a graduate of Kyoto University (LLB, 1995) and Georgetown University (LLM, 2002). He is admitted to the Bar in both Japan and New York.