Sumitomo Mitsui Banking Corporation Issued Administrative OrdersBy the Financial Services Agency(3/3)
The method for Judgment of Abuse of Dominant
Necessary condition for ”Abuse
of Dominant Bargaining Position”
conditions are necessary to apply ”Abuse
of Dominant Bargaining Position” according to the
Japanese Antimonopoly Act (“ACT”). (Sec.
g eneral d esignation No. 14) :
person maintain s Dominant Bargaining
Position to another .
the dominant bargaining position, one person imposes unfair
disadvantage to another .
(specifically the actions described in General Designation No 14 item 1 to 5 of the Act.）
person treats another in a n unfair manner from the normal market practice point of view .
A case lacking
of any one above factors does not fall upon
ing Factor means , in short, “ that there is
dependence in conducting busine ss” this case , the criteria
to fulfill the Position ing Factor is whether substitutive procure ment of fund from other financial institutions instead of SMBC is proved
difficult . above availability of procurement from
other financial institutions should be judged by the business
relations with SMBC and other financial institutions, the performance and financial status of the
factor means , in short, “ Utilizing the stronger position
(=dominant bargaining position) , one person imposes unfair
disadvantage on his
counterparty . ” In this case , the standard to judge whether “ Abus ing ” or not is that the officer of SMBC enforced to purchase interest rate swap “ stating” or “ hinting ”
that the “ purchase of interest
rate swap was a condition ” or the “refusal to
purchase the interest rate swap would result in lending
conditions worse than usual ” utilizing
the condition that his client had to borrow from SMBC .
T o check the
existence of such “ stat ing ” or “ hinting ”, the background of making contract , the number of meeting including
meeting accompanied by his senior officer , and the rationale for the client
to purchase interest rate swap .
ng Fair Competition Factor means “ the
violation of free and fair competition due to lack of voluntary transaction . ” Normally, t his factor regarded as fulfilled where both of Position ing Factor and Abuse Factor are deemed fulfilled .
Actual Method of
Judgment e mployed
Upon judgment in this investigation,
the Committee determined the fulfillment
of Position ing Factor and Abuse Factor for
each case .
However, t he Committee examin ed the fulfillment
of Position ing Factor in priority , taking into
account that a buse of d ominant p osition
without fulfillment of Position ing Factor is impossible and Position ing Factor can be
determined to considerable extent by objective data such as business re lation s , performances and financial status
It should be noted
that the Committee
prudent stance in determination of fulfillment of Positioning Factor as the possibility
of the fulfillment may in case be a crucial factor to the final judgment . A ll the case where the possibility
of fulfillment was not able to denied were proceeded to following step
（２）The Committee examined Abus
ing Factor when it
recognized the case satisfied the Position ing Factor
or the possibility to satisfy it .
judged as the case of “ Abus ing Dominant Bargaining
Position” or the case of concern of “ Abus ing Dominant Bargaining
Position , ” when the
Committee recognized the possibility
or existence of Position ing Factor and Abus ing Factor .
the case as “ t he c ase of concern of other l egal r esponsibility ” when it examined the background
situation of the agreement of interest rate swap and then , it found the possibility
of lack of the sufficient
explanation to the client , even if the Committee admitted there was no
possibility to satisfy the Positioning Factor .
flow of judgment mentioned
above , two lawyers of the Committee were responsible for each case . When the conclusion of the lawyers was not the same ,
to become the same conclusion .
Also, in the case that the lawyers felt they need more information or material
to make judgment , they asked Antimonopoly Monitoring Office , SMBC to do additional
research to collect them .