Investigation of Parity Clauses in Japan
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1 Investigation of Parity Clauses in Japan Isao KASUBUCHI (Mr.) Director General for Trade Practices Department Japan Fair Trade Commission ICN Unilateral Conduct WS, 1 Dec, 2017 in Rome, Italy The views expressed in this presentation are solely those of the author and do not necessarily reflect the views of the JFTC. 1
2 Contents 1. Competitive effects of parity clauses (in general) 2. Investigation against Amazon Japan G.K. (1) Flow of the investigation (2) Online shopping Mall Market in Japan (3) Parity Clauses in the Seller Contracts on Amazon Marketplace (4) The JFTC s concerns over the Influence of the Parity Clauses on Competition (5) Measures Proposed by Amazon Japan G.K. 3. Subsequent event 4. Challenges/ issues 2
3 1. Competitive effects of parity clauses (in general) Anti-competitive effect (1) Reduction of incentive to reduce prices (2) foreclosure of rivals/ new entrants (3) Facilitation of concerted practice (1) Prevension of free-riding (2) Reduction of transaction cost Pro-competitive effect 3
4 2. Investigation against Amazon Japan G.K. (1)Flow of the investigation Investigation of parity clauses in Amazon Marketplace August 2016: the JFTC conducted a dawn raid on Amazon Japan G.K. (hereinafter called Amazon JP ) to investigate its price parity clauses and selection parity clauses in the seller contracts on Amazon Marketplace. Relevant article : Article 19 (paragraph 12 [trading on restrictive terms]) of Japanese Anti-monopoly Act. April 2017: Amazon JP proposed to take voluntary measures. June 2017: The JFTC recognized these measures would eliminate the suspected violation and decided to close the investigation on this case. 4
5 2.(2)Online shopping Mall Market in Japan Offline Shops Online Shopping malls Yahoo!JAPAN shopping Rakuten Online shopping (direct sales to customers) amazon.co.jp marketplace Each store s own website 5
6 2.(3) Parity Clauses in the Seller Contracts on Amazon Marketplace Price Parity Clauses Clauses to require sellers to ensure that prices and sales terms for products they sell in Amazon Marketplace are the most advantageous for purchasers among the ones for the identical products they sell via other sales channels Selection Parity Clauses Wide Parity Clauses Clauses to require sellers to offer in Amazon Marketplace all varia ons in color and size, etc. of all products they sell via other sales channels. 6
7 Selection parity clauses Lineup N A of goods that Seller S offers in Online Shopping Mall A must be equal to or exceed N B and N S. (N A N B and N A N S ) Price parity clauses Selection parity clauses Seller S Seller S sells goods on its own website and also sells goods in Online Shopping Malls A and B by concluding seller contracts with these malls. Thus, Seller S sells goods through three sales channels. Offering N A types of goods Offering N B types of goods Offering N S types of goods 1 2 N A 1 2 N B 1 2 N S Price parity clauses Price P A for which Seller S sells Product 1 in Online Shopping Mall A must be equal to or lower than P B and P S. (P A P B and P A P S ) Online Shopping Mall A Selling Product 1 for Price P A Online Shopping Mall B Selling Product 1 for Price P B S s Own Website Selling Product 1 for Price P S Consumers (Purchasers) 7
8 2.(4)The JFTC s concerns over the Influence of the Parity Clauses on Competition α <sellers> β γ 3) reduce online shopping mall operators incentive for innovation and hinder new entrants. 1) limiting reduction of prices and expansions of lineups that the sellers sell via other channels (such asα, B). α (Sellers own website) A B Consumer <online shopping mall operators> D 2) distort competition among online shopping mall operators by allowing an online shopping mall operator imposing parity clauses to achieve the lowest price/ richest lineup without making competitive effort 8
9 2.(5)Measures Proposed by Amazon Japan G.K. Measures proposed by Amazon JP (summary) Amazon JP will delete the price parity clauses from concluded seller contracts, or will waive and will not exercise the rights of the price parity and selection parity clauses. It will not provide those parity clauses in seller contracts. Amazon JP will notify all sellers of these measures. Amazon JP will annually report the implementation status to the JFTC in writing for 3 years. The JFTC recognized that these measures would eliminate the suspected violation of the Antimonopoly Act and decided to close the investigation on this case. 9
10 3. Subsequent event <Report on e-books Agreements from Amazon Services International, Inc.> On June 2017, the JFTC received a report from Amazon Services International, Inc. that they would take voluntary measures on the parity clauses contained in the agreements with publishers or distributors regarding the e-books delivered from Amazon.co.jp website. <summery of the measures> It will not enforce the contractual obligations of publishers, etc. regarding the parity clauses. It will notify publishers, etc. of the measures it took. It will not provide the parity clauses in e-books agreements. It will have taken those measures for at least five years. The JFTC recognized these measures would eliminate the anticompetitive concerns. Additionally, the JFTC requested to have sufficient consultation with publishers and distributors when it intends to alter other clauses as a result of taking the measures. 10
11 4. Challenges/ issues Factors to be considered to prove the anticompetitive effects of the parity clauses used in online marketplaces Effective investigation methods when there are a number of sellers in a transaction with the target company Appropriate remedies to address parity clauses 11
12 Thank you very much!!! 12
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