Japan is considering whether to introduce legal professional privilege for the first time, in a landmark consultation about fair trade.
The Japan Fair Trade Commission (JFTC) has proposed changes to the country’s anti-monopoly act, setting forth that investigators cannot access documents containing confidential communication between an enterprise and an attorney regarding legal advice about unreasonable restraint of trade, assuming certain conditions are met.
While narrow in scope, the introduction of legal professional privilege in relation to competition laws could lead to wider changes to the country’s legal system. According to the Organisation for Economic Cooperation and Development (OECD) Japan is one of only three OECD jurisdictions to not recognise attorney-client privilege. Protection from requests for disclosure in Japan is based on a lawyer’s duty to maintain confidentiality rather than being, as in the common law, a right that belongs to the client.
A bill to amend Japan’s anti-monopoly act was passed last year in order to invigorate the economy and enhance consumer interests. The JFTC now seeks views about potential changes from stakeholders, including the Law Society and the International Bar Association.
Among the other proposed amendments are a system where companies receive smaller surcharges if they cooperate with investigators and larger criminal fines for those who obstruct investigations.
Law Society president Simon Davis said: 'Protecting communications between lawyers and their clients not only strengthens access to justice; it ultimately enhances the rule of law and compliance by both individual and business clients. The Law Society therefore welcomes this important consultation.'
The public consultation will close on 15 May.