Abstract:
Harry First is Professor of Law, New York University School of Law, on leave. Chief, Antitrust Bureau, New
York State Office of the Attorney General. Abstract: 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.
