Washington International Law Journal


Harry First


This Article examines the "original intent" of those involved in drafting Japan's Antimonopoly Act, passed in 1947. Japanese sources generally assume this legislation to be pure American invention, a foreign transplant that the Japanese did not understand and that was improperly imposed on a country in which antitrust was, and continues to be, irrelevant. Drawing on original Occupation documents, however, this Article shows that negotiators from Japan's government understood perfectly well what the legislation was about. More than understanding, the government of Japan in fact drafted the statute that was finally enacted, and its provisions reflect the success Japan's negotiators had in achieving many of their goals. Significantly, a major goal on the Japan side (and one quite consistent with traditional antitrust concerns) was to prohibit exclusionary practices that restricted market access and to "democratize" markets so that entrepreneurs would be provided with a fair opportunity to compete. This Article sets the statute in its economic context in Japan and traces the drafting process through the numerous revisions of the Act. This Article also suggests that the story of this process and its outcome holds some lessons for those now interested in drafting some type of international antitrust agreement. In particular, the story of the adoption of Japan's antitrust statute demonstrates that the critical difference among antitrust regimes lies less in the substantive law provisions of the statutes than in the institutions of antitrust enforcement that are adopted. Thus, the substantive provisions of an international antitrust code or agreement are likely to prove less critical than any institutions which will carry out such a code or agreement.

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