I. Introduction: The Gap Left by the Dominance Threshold
The classical architecture of competition law governing unilateral conduct rests on a single premise: intervention is legitimate only where an undertaking possesses the power to act independently of its competitors and customers in the relevant market. Article 6 of the Turkish Act No. 4054 on the Protection of Competition follows that premise; the moment dominance cannot be established, the provision ceases to apply, however grave the conduct may be. The same structure underlies Article 102 TFEU and Section 2 of the Sherman Act.
What this architecture overlooks is a matter of commercial fact. In practice, the power one undertaking holds over another frequently derives not from market share but from the relationship itself. A food producer that makes the greater part of its turnover from a single retail chain will be unable to continue operating if the relationship is terminated, even where that chain's market share is comparatively modest. For that producer, the boundaries of the relevant market and the number of competitors mean nothing at the negotiating table. Legal theory calls this relative market power (relative Marktmacht) or economic dependence; economics points to the lock-in generated by relationship-specific investment and to the opportunism predicted by incomplete contract theory.
Turkish law responds to this phenomenon through instruments that are disconnected from one another and largely situated outside competition law: Article 6 of Act No. 6585 on the Regulation of Retail Trade, which governs unfair commercial practices in the supply chain; Articles 54 and 55 of the Turkish Commercial Code on unfair competition; and Articles 20 to 25 of the Turkish Code of Obligations on general terms and conditions. What these instruments have in common is that they fall outside the competition authority's remit and were enacted at different times, for different purposes, without any systematic relationship to one another. The result is that a single phenomenon is divided among several legal regimes and fully captured by none of them.
Japanese law, by contrast, has for more than half a century addressed the same phenomenon from within competition law itself and through a single general provision. Article 2(9)(v) of the Act on Prohibition of Private Monopolization and Maintenance of Fair Trade of 1947, No. 54,[1] under the heading "abuse of superior bargaining position" (yuetsuteki chii no ranyo), prohibits an undertaking from exploiting its superior position vis-à-vis a counterparty to impose disadvantageous terms in a manner contrary to normal business practices, without requiring dominance. The provision was made subject to administrative surcharges by the 2009 amendment and has, over the past fifteen years, become the only effective enforcement instrument available to the Japan Fair Trade Commission (the "JFTC") in the field of unilateral conduct.
This study proceeds on two levels. The first sets out the normative framework of the Japanese model, its constituent elements, its enforcement record, and the criticism it has attracted. The second compares the existing Turkish toolkit against that framework and asks whether a general provision on relative market power ought to be added to Act No. 4054. Japan has been selected as the comparator not merely because of the age of its regime; like Turkey, Japan is a country in which manufacturing supply chains are concentrated and in which the asymmetric relationship between large industrial undertakings and a multitude of small ancillary suppliers is a defining feature of the economic structure. The value of the comparison lies less in legal similarity than in the similarity of the phenomenon being regulated.
II. The Normative Framework of the Japanese Model
A. The provision's place in the statute and its historical development
The Japanese Antimonopoly Act addresses unilateral conduct under two separate headings. The first is "private monopolization" (shiteki dokusen), governed by Article 3, which requires a substantial restraint of competition. The second is "unfair trade practices" (fukosei na torihiki hoho), prohibited by Article 19 and defined in Article 2(9). Abuse of superior bargaining position belongs to the second category. That choice is not incidental and determines the character of the provision: the legislature elected to capture this conduct through fairness within the commercial relationship rather than through harm to the structure of competition.
Until 2009 the prohibition was contained not in the statute itself but in the general designation issued by the JFTC (ippan shitei). The 2009 amendment moved it into the Act as Article 2(9)(v) and, with effect from 1 January 2010, subjected it to administrative surcharges (kachokin). The amendment had two consequences. The first was a marked increase in severity: whereas surcharges may be imposed for other categories of unfair trade practice only upon repetition, in cases of abuse of superior bargaining position a surcharge may be imposed for a first infringement.[2] The second, and less frequently noticed, consequence is that the surcharge is calculated not by reference to the size of the market in which the infringement occurred but by reference to the volume of trade with the counterparty affected. This confirms, at the level of sanction, that the provision is relational rather than market-oriented in character.
A heavier sanction inevitably generated demands for legal certainty. On 30 November 2010 the JFTC issued its Guidelines Concerning Abuse of Superior Bargaining Position under the Antimonopoly Act, giving concrete form to the elements of the prohibition and to its typical modes of infringement.[3]
B. The constituent elements
The Guidelines and settled practice distinguish three elements.
First element — the existence of a superior bargaining position. This is the most distinctive feature of the provision and the principal object of comparative inquiry. A superior position does not require dominance in the relevant market; the criterion is the dependence of the counterparty (B) upon the first undertaking (A). Where B is unable to refuse A's disadvantageous demands because the severance of the relationship would substantially impede B's business, A is regarded as holding a superior position. The assessment considers, in combination, the degree of B's transactional dependence on A, A's position in the market, B's ability to switch counterparties, and the extent to which dealing with A is a practical necessity for B.
The literature accepts expressly that this element may exist independently of market power; a superior bargaining position denotes either market power or relative superiority vis-à-vis a particular commercial counterparty, and JFTC practice includes cases in which the infringing undertaking did not even rank among the leading firms in the relevant market.[4]
Second element — exploitation of the position. The mere existence of a superior position is insufficient; the undertaking must exploit that position by making a demand of, or imposing an obligation upon, the counterparty. In JFTC practice this element is established through indicia such as notification that retaliation would follow a refusal, actual retaliation in the past, or the counterparty's awareness that other suppliers had been subjected to such treatment.[5]
Third element — unfairness contrary to normal business practices. The Guidelines enumerate infringing conduct by way of example: coercing the purchase of goods or services the counterparty does not wish to buy; demanding economic benefits without consideration (under headings such as participation fees or listing charges); unilaterally imposing return conditions; unilaterally reducing the agreed price after the event; and requiring the counterparty's personnel to work without payment. It should be emphasised that the reference to "normal business practices" is not to practices actually established in the sector but to what is acceptable from the standpoint of a fair competitive order; otherwise a widespread abusive practice would legitimise itself.
C. Enforcement practice and sanctions
The enforcement history of the provision has been written largely in the retail sector. Between 2006 and 2010, the Valor, Eco's, Yamada Denki and Royal Home Center decisions established that demands by large retail chains for payments without consideration, and the use of suppliers' personnel without remuneration, constituted infringements.[6]
The first application after the surcharge regime entered into force was the JFTC's decision of 13 December 2011 against Toys"R"Us-Japan, which found the return of goods obtained from suppliers and the subsequent reduction of their prices to be infringements. Following the undertaking's challenge, the decision was partially annulled at the conclusion of hearing proceedings; the finding of abuse was set aside in respect of certain suppliers and the surcharge was correspondingly reduced.[7] This is an early indication that criticism of the provision's indeterminacy is not merely theoretical.
The highest surcharge imposed to date is the sum of approximately JPY 4 billion levied on the home electronics retailer EDION by the JFTC's decision of 16 February 2012.[8] What is striking is that this figure is the highest not only within the category of unfair trade practices but across all unilateral conduct, since no surcharge has ever been imposed under the private monopolization provision.[9] The proposition that the control of unilateral conduct in Japan effectively proceeds through the superior bargaining position provision rests on this evidence.
The introduction of commitment procedures into the Antimonopoly Act at the end of 2018 altered the character of enforcement once again. The most notable feature of the commitment procedure is that it makes possible an outcome unavailable under a cease-and-desist order, namely repayment to the suppliers who suffered loss. Accordingly, the JFTC approved the commitment plans submitted by Genky Stores on 5 August 2020 and by Amazon Japan on 10 September 2020 precisely because they provided for reimbursement of suppliers.[10] The Amazon Japan file concerned demands for price reductions and contributions without consideration, together with unjustified returns; the undertaking paid approximately JPY 2 billion to some 1,400 suppliers.[11] That sum could not have been obtained had the cease-and-desist route been followed.
The significance of this point for Turkish law deserves emphasis. The commitment mechanism under Article 43 of Act No. 4054 is directed essentially at the elimination of competitive concerns; compensation of the injured party is the subject of a separate private-law action under Articles 57 and 58 of the Act. Japanese practice demonstrates that securing redress within an administrative procedure is technically feasible.
D. The second layer: subcontracting legislation
To read the Japanese model solely through the Antimonopoly Act would be incomplete. Beneath the superior bargaining position provision lies a second and considerably more detailed layer specific to manufacturing supply chains: the legislation of 1956 known in short as the Subcontract Act (Shitauke Ho). That statute imposes, in relationships between large ordering undertakings and subcontractors determined by capital thresholds, obligations concerning written documentation, limits on payment periods, and prohibitions on price reductions and unjustified returns. Its distinction from the Antimonopoly Act is that it does not require separate proof of a superior position; once the capital threshold is exceeded, the rules apply directly. In other words, the elements that render the general provision difficult to prove have been converted into statutory presumptions for a defined category of relationship.
This second layer was fundamentally renewed by the legislation adopted on 16 May 2025 and in force since 1 January 2026. The amendment changed even the name of the statute; the term "subcontractor" (shitauke) was removed on the ground that it connotes an unequal relationship, and the parties were redesignated as "commissioning enterprise" and "small and medium-sized contracting enterprise".[12] This apparently terminological choice also reveals the political intent behind the reform.
The substantive amendments fall under four headings. The first and most important is the prohibition on unilaterally determining the price without proper negotiation; failing to respond to price negotiations, or failing to provide the necessary explanations and information during those negotiations, now constitutes an infringement in itself. The second is the prohibition on payment by promissory notes and on payment methods that make it difficult for the creditor to collect the full amount on the due date. The third is the extension of scope: transport commissions have been brought within the statute, and applicability is now determined not only by capital but also by the number of employees. The fourth is the strengthening of information-sharing and guidance powers of the competent authorities, together with the regime protecting against retaliation.[13]
The rationale for adding the employee-number criterion is particularly instructive. Where capital alone was used, undertakings that were substantial in scale but held low capital fell outside the statute; moreover, ordering undertakings were able to escape its application by requesting that their counterparties increase their capital.[14] This illustration of how readily threshold-based regulation invites avoidance behaviour merits attention in relation to the scale definitions used in Turkey's Act No. 6585 as well.
The expressly stated purpose of the amendment is to enable increases in labour, raw material and energy costs to be passed up the supply chain (tenka). This is the Japanese version of the role competition law assumes in an inflationary environment, and it bears directly on the Turkish debate.
A third and more recent layer concerns transactions with freelance workers; the guidance issued by the JFTC in this field demonstrates the extension of the superior position rationale to sole traders who are not legal persons.[15] Japanese law thus exhibits a three-tiered structure of protection against power asymmetry: a general provision (the Antimonopoly Act), a detailed regime specific to a type of relationship (the subcontracting legislation), and a regime specific to a type of person (freelance workers).
E. Extension to digital markets
The most striking development of the superior bargaining position provision over the past decade has been its extension to digital platforms and indeed to the platform-consumer relationship. In December 2019 the JFTC issued separate guidelines on transactions between digital platform operators and consumers who provide personal information.[16] The theoretical claim of those guidelines is that a consumer who supplies personal data in exchange for a service is to that extent a party to a transaction; if the platform holds a superior position vis-à-vis that consumer, unilaterally imposing the terms on which the data is used may amount to an abuse of superior bargaining position.
This approach has been criticised for blurring the boundary between competition law and data protection law. It has been argued in the literature that most of the categories of abuse listed in the guidelines overlap with provisions of the Japanese Act on the Protection of Personal Information, but that the superior position regime may perform a distinctive function in relation to profiling activities that data protection legislation does not effectively capture.[17] The same authors identify, as weaknesses of the approach, the possibility of indefinite expansion of the concept of superior bargaining position and the scarcity of surcharge decisions.
The counterpart of this debate in Turkish law is direct: the intersection between Act No. 6698 and Act No. 4054, together with the question of how the boundary of competence between the Competition Authority and the Personal Data Protection Authority is to be drawn, remains an immature area of discussion.
III. Criticism of the Model: Competition or Contractual Fairness?
The reason the Japanese model attracts such attention in comparative law is its theoretical difficulty as much as its success. The criticism proceeds along three axes.
First axis — mismatch of objectives. What competition law seeks to protect, on the classical view, is the competitive process rather than the welfare of any particular undertaking. Abuse of superior bargaining position, by definition, does not require harm to the structure of competition in the relevant market. Wakui and Cheng's comprehensive study tests the coherence of the regime with the various objectives of competition law and with economic rationales, and concludes that those objectives provide at best a tenuous foundation for it and are in part inconsistent with the JFTC's actual enforcement practice. The authors' conclusion is notable: the regime is best justified as a supplement to deficient contract law enforcement, a deficiency which many commentators have observed to be particularly acute for small and medium-sized enterprises in Japan.[18]
That conclusion is decisive for the transferability question. If the true function of the regime is to close an enforcement gap in contract law, then the necessity of transplanting it will depend upon the effectiveness of contract law enforcement in the receiving jurisdiction. The issue is not the existence of the problem but which institution is better suited to resolve it.
Second axis — legal certainty. Is the standard of "unfairness contrary to normal business practices" sufficiently determinate to support a sanctioning regime that approaches the criminal in severity? The Guidelines were published in 2010 precisely in response to this criticism; yet the literature observes that, notwithstanding that effort, the concept remains insufficiently clear.[19] The partial annulment of the decision in the Toys"R"Us file shows that the criticism has a concrete counterpart. The same indeterminacy also operates as an advantage from the authority's standpoint: the lighter evidentiary burden compared with cartel or dominance files renders the superior bargaining position a regulator-friendly instrument.[20] This also explains why enforcement has concentrated on this provision.
Third axis — uncontrolled expansion of scope. The extension of a provision that began in the retailer-supplier relationship first to the platform-seller relationship and then to the platform-consumer relationship sharpens the question of where the concept's limits are to be drawn. From the standpoint of freedom of contract, subjecting every asymmetric relationship to competition law scrutiny is not a defensible outcome.
The defence advanced against these criticisms is economic in character. On incomplete contract theory, opportunistic conduct by the stronger party in long-term contracts requiring relationship-specific investment causes the weaker party to under-invest, generating a loss in social welfare. Neither contract law nor competition law is a perfect instrument for addressing this problem; accordingly, a special regime going beyond both may be defended as a means of allocating residual rights of control to the party that makes the decisive relationship-specific investment.[21] Once that defence is accepted, the superior bargaining position regime is positioned not as a deviation from competition law but as the closing of a gap lying between contract law and competition law.
IV. The Existing Toolkit in Turkish Law
A. Article 6 of Act No. 4054 and economic dependence: the course of the Board's practice
The Turkish Competition Board encountered the question of economic dependence at an early stage, and its practice has followed a two-phase course.
In the first phase, the Board employed language sympathetic to the concept. In its BETA decision of 21 December 2000 it stated that the situation arising where a supplier's customers depend upon it although the supplier is not dominant across the market as a whole — the situation known in the literature as economic dependence — could be assessed as a further form of abuse in the context of a refusal to supply. The decision noted that the assessment of economic dependence requires an inquiry into whether the customer has alternative sources of supply, and that where no adequate alternative exists and the interruption of supply would cause permanent and significant disadvantages to the competitive position of the dependent undertaking, a supplier's cessation of supply may be prohibited under competition law even absent dominance.[22] Likewise, in the Karbogaz and Habas decisions the Board observed that economic dependence is a very important criterion in the assessment of dominance and may in some cases suffice on its own to establish it.[23]
These statements must, however, be read with care. The Board positioned economic dependence as a criterion used in the assessment of dominance rather than as a substitute for it. The boundary was drawn explicitly in the MEPA decision of 16 May 2000. There the Board held that the definition of dominance in Article 3 of Act No. 4054 requires the supplier to be dominant across the relevant product market as a whole and not merely in its commercial relationship with its customer; whereas economic dependence arising from a supplier-customer relationship supports at most an assertion of significant market power vis-à-vis that customer. The conclusion was stated in terms: where the supplier is not dominant across the market as a whole, it is not possible to assert dominance vis-à-vis the customer on the basis of economic dependence alone.[24]
In the second phase the Board not only confirmed that boundary but expressly referred the dispute to another branch of the judiciary. Its Koctas decision of 13 October 2011 is decisive in this respect. The allegation concerned a home-improvement chain that had impeded its supplier's activities by exerting pressure to trade on consignment terms — precisely the typical fact pattern of Japanese practice. The Board held that, under Turkish competition legislation, economic dependence can be addressed only within Article 6 of Act No. 4054, and that the dominance requirement of that provision corresponds to a situation beyond economic dependence; it concluded that the matter arose from the agreement between retailer and supplier, reflected the parties' respective bargaining strengths, and fell to be addressed under commercial legislation. The decision expressly stated that the supplier could apply to the commercial courts in respect of demands contrary to commercial usage or to the contract, and it was resolved unanimously that there was no need to initiate an investigation.[25]
One observation in the same decision is significant for the economic dimension of the question. The Board recorded that it is generally accepted in the literature on buyer power in the retail sector that a retailer accounting for ten per cent or more of a supplier's sales holds asymmetric power over that supplier and is able to use it to dictate commercial practices to the supplier's disadvantage in negotiations. The Board nonetheless noted that, in jurisdictions which have incorporated economic dependence into their competition or commercial legislation, and in view of freedom of contract and the requirements of a market economy, a dependence ratio above twenty to thirty per cent is required in addition to the scarcity of alternative sales channels.[26] This does not mean that the Board failed to see the problem; it means that it had no instrument available under the existing legislation.
A similar outcome emerged in the Metro Grosmarket decision of 9 August 2012. The allegation was that the undertaking, relying on its buyer power, demanded payments from suppliers under various headings and imposed consignment terms. Referring to the findings of the 2012 Final Report of the Sector Inquiry into Fast-Moving Consumer Goods Retailing, the Board accepted that the increase in buyer power arising from retailers' scale, their ownership of shelf space, and their simultaneous status as competitors of their suppliers through private-label products caused imbalances of power that from time to time operated to the supplier's disadvantage; it nonetheless held that no retailer group could presently be assessed as holding buyer power sufficient to distort the competitive structure of the supply market.[27]
The chain of reasoning here is the crux of the comparative analysis. The Board accepts the existence of the imbalance of power and that it operates against suppliers, yet sets the threshold for intervention at distortion of the competitive structure of the market. The Japanese provision requires no such threshold. The difference between the two systems lies not in the identification of the facts but in the threshold at which the identified facts generate legal consequences.
Finally, buyer power may itself preclude a finding of dominance. In the Tirsan Kardan decision the Board found that factors indicating dominance were present in the light of the undertaking's market share and market position, but that, since the undertaking supplied global automotive manufacturers, it sold into a market characterised by powerful buyers; on the grounds enumerated, including the presence of buyer power, it concluded that the undertaking was not dominant.[28] This demonstrates that power asymmetry in the supply chain functions under Act No. 4054 not merely as an unprotected condition but as a factor reducing the liability of the counterparty.
B. The draft amendment and the opportunity foregone
The only serious initiative in Turkish law towards transcending the dominance threshold is the Draft Act Amending the Act on the Protection of Competition, prepared and made public in 2022. The proposed Article 6/A would have prohibited fourteen distinct forms of conduct on the part of undertakings holding "significant market power"; the prohibited conduct may be grouped under the headings of information asymmetry, interoperability, tying, exclusivity, and data-based and discrimination-based obligations and prohibitions.[29]
The draft was not enacted. What is most striking, however, is not its failure to pass but its scope: the provision was conceived for digital platform services. Turkey's only initiative towards transcending the dominance threshold was thus specific to digital markets and did not extend to classical supply-chain asymmetry. Among the criticisms directed at the draft in the literature was that the scope of the new objective, expressed as "the establishment of a fair and contestable market", had been left open and that it was unclear whether that objective was consonant with the spirit of Act No. 4054.[30] This criticism is the exact Turkish counterpart of the "mismatch of objectives" objection levelled at the Japanese model, and it would apply equally to any proposal for a general provision.
C. Act No. 6585: a sectoral and administrative solution
Turkish law's principal response to supply-chain asymmetry lies outside competition law, in Article 6 of Act No. 6585 on the Regulation of Retail Trade, amended together with its heading by Act No. 7435 with effect from 1 February 2023.
The provision is headed "Unfair commercial practices in the supply chain" and establishes a two-tier structure. The first paragraph sets out a general definition: activities of one party, in commercial relationships between producers, suppliers and retail undertakings, which significantly impair the other party's commercial activities, diminish its capacity for reasonable decision-making, or cause it to become party to a commercial relationship to which it would not otherwise be party, constitute unfair commercial practices. The second paragraph enumerates conduct deemed in all cases to be an unfair commercial practice: compelling the procurement of goods or services from any person, save for conditions included in the contract in order to ensure quality standards; passing the cost of a promotional campaign on to a party unwilling to participate; failing to determine the terms of the commercial relationship in the supply of agricultural and food products by written or electronic contract; including in the contract terms conferring a power of unilateral variation to the other party's detriment, or terms that are not clear and intelligible; taking payment under headings such as store opening and renovation, turnover shortfall, or bank and credit card participation charges without providing any service directly affecting demand for the product, or taking premiums and charges without specifying in the contract the nature of the service and the amount or rate of the charge; cancelling orders for agricultural and food products perishable within thirty days of production during the thirty days preceding delivery; and passing on costs such as spoilage or loss after the delivery or transfer of ownership of such products.[31]
This catalogue overlaps to a remarkable degree with the typical modes of infringement enumerated in the JFTC Guidelines. Demands for payment without consideration, unilateral powers of contractual variation, the passing on of costs to the counterparty, and unjustified returns are the same forms of conduct in both systems. Article 7 of the Act further imposes ceilings on payment periods: thirty days for rapidly perishable agricultural and food products where the creditor is small and the debtor medium or large, or the creditor medium and the debtor large; forty-five days in other cases; and sixty days for agricultural and food products falling outside that category. The burden of proving timely payment rests on the debtor.[32]
The sanctioning regime is set out in Article 18 and is notable for two technical features. The first is that a substantial part of the penalties is proportionate: fines are imposed in the amount of the campaign cost passed on, the premium or charge unlawfully taken, the value of the cancelled order, or the cost passed on. The second is the provision of daily proportionate penalties for breaches of payment periods. Annual ceilings by undertaking size are, however, imposed, and those figures are increased at the revaluation rate.[33] The power to impose the penalties belongs to the Ministry of Trade.
The limits of the regime are equally clear. First, its scope is confined to the retail supply chain; ancillary-industry relationships in manufacturing, service procurement and a substantial part of dealership relationships fall outside it. The manufacturing sphere, which is the heart of Japan's subcontracting legislation, is in this respect unregulated in Turkish law. Second, the competent authority is not the competition authority; the Competition Authority's expertise in economic analysis, its investigative tools and its market knowledge are therefore not brought to bear. Third, and most importantly, the general definition in the first paragraph of Article 6 is applied in practice in a manner confined to the catalogue in the second paragraph, and no established practice has emerged of invoking the general provision as an independent basis for intervention.
D. The private-law route: Articles 54-55 TCC and Articles 20-25 TCO
The route to which the Board directed the parties in Koctas is the private-law route, and its capacity should not be underestimated.
The second paragraph of Article 54 of the Turkish Commercial Code renders unfair and unlawful any deceptive conduct or commercial practice, or conduct otherwise contrary to the rule of good faith, which affects relationships between competitors or between suppliers and customers. The Assembly of Civil Chambers of the Court of Cassation has held expressly that the unfair competition provisions protect not only competitors but also suppliers, customers, consumers, purchasers and contracting parties, and that the instances enumerated in Article 55 are not exhaustive, so that any conduct or practice falling within the general rule may constitute unfair competition. Under the general rule, neither the existence of a competitive relationship between the parties, nor benefit obtained by the perpetrator, nor fault, nor the occurrence of loss is required; only that the act be contrary to law or to the rule of good faith.[34]
This is, in theory, an exceedingly wide gateway. Moreover, Article 55(1)(f) TCC expressly treats the use of general terms contrary to the rule of good faith as an instance of unfair competition — in particular pre-formulated general terms that depart significantly from the applicable statutory regime or that provide for an allocation of rights and obligations significantly contrary to the nature of the contract. Given that retailer-supplier contracts are typically standard-form instruments drafted unilaterally, the reach of the provision is evident.
The provisions of the Turkish Code of Obligations on general terms and conditions operate in the same direction. In a decision of the 19th Civil Chamber of the Court of Cassation, a general term relating to service charges in a contract between a purchaser and a supplier was held to be an unfair term imposing a disproportionate burden on the supplier, aggravating its position and stipulated, contrary to the rule of good faith, solely for the benefit of the purchaser; it was accordingly held void. The decision further stated expressly that the fact that both contracting parties were merchants did not alter that outcome.[35]
That final proposition is critical for the comparative analysis. Turkish private law does not shrink from substantive review even in relationships between merchants. The problem of "ineffective enforcement of contract law", advanced as the justification for the Japanese model, does not exist to the same degree in Turkish law, at least at the normative level.
The difference between normative possibility and actual practice is, however, decisive here. The private-law route suffers from three structural weaknesses. The first is that the cost and duration of litigation are prohibitive for a supplier deriving the greater part of its turnover from the defendant. The second, and graver, is the risk of retaliation: bringing proceedings during a subsisting commercial relationship means the end of that relationship, so that actions are typically brought only after the relationship has already terminated and therefore serve no preventive function. The Japanese system's administrative character and its specific protection against retaliation are precisely a response to this problem. The third is that the private-law route resolves an individual dispute; it does not bring a systemic and widespread practice to an end.
E. Reading the picture
Read together, the four headings above yield the following picture. Power asymmetry in the supply chain is not a lacuna in Turkish law; on the contrary, it is partially captured by several regimes at once. The difficulty lies less in gaps of coverage than in the dispersal of that coverage:
The Competition Authority possesses the capacity to identify the phenomenon and the expertise in economic analysis, but has no power to intervene by reason of the dominance threshold.
The Ministry of Trade possesses the power to intervene, but its competence is confined to the retail sector and does not draw upon competition law expertise.
The civil courts possess a broad normative framework, but it is in practice little used because of the risk of retaliation and the individual structure of litigation.
The Japanese model, by contrast, unites all three functions in a single institution, the JFTC: the capacity to identify, the power to intervene administratively, and the ability (through the commitment procedure) to secure redress.
V. Assessment of Transferability
A. Structural differences impeding transplantation
Three structural differences make direct transplantation of the Japanese model difficult.
The first is institutional culture. The JFTC is an authority that conducts its enforcement predominantly through dialogue, guidance and commitments; cease-and-desist decisions are few by comparison with warnings and cautions. This allows a provision as indeterminate as abuse of superior bargaining position to operate as an instrument of behavioural change rather than as a threat of punishment. The enforcement culture of the Turkish Competition Authority is more decision-oriented; it cannot be assumed that the same provision would operate in the same way in Turkey.
The second is the structure of judicial review. In Japan the review of surcharge decisions was for a considerable period conducted through hearing proceedings within the JFTC, and decisions were corrected at that stage, as the Toys"R"Us example illustrates. In Turkey, review of Board decisions lies directly with the administrative judiciary — the 13th Chamber of the Council of State — and the formation of case law is slower. The predictability of an indeterminate provision depends upon the speed and intensity of judicial review.
The third and most important is the condition of contract law. The strongest theoretical justification for the Japanese model is that it compensates for the ineffective enforcement of contract law. In Turkish law, as demonstrated above, both Articles 54-55 TCC and Articles 20-25 TCO are open to substantive review in relationships between merchants and are applied to that effect by the Court of Cassation. It follows that the same gap is not of the same magnitude in Turkey.
B. Arguments supporting transplantation
That observation does not entail the conclusion that transplantation is unnecessary. Three counter-arguments may be made.
The first concerns the difference between normative possibility and actual practice. The door of Turkish private law stands open; yet suppliers are evidently not passing through it. The risk of retaliation and the cost of litigation render the normative possibility practically unusable. A legal system must measure the distance between the protection it affords on paper and the protection it delivers in fact.
The second is the underuse of the Competition Authority's institutional capacity. In Koctas and Metro Grosmarket the Board identified the phenomenon but was unable to intervene. For an authority to refer a problem it has identified to another forum is a waste of institutional resources.
The third is the macroeconomic significance of the supply chain. The expressly declared purpose of the 2026 amendment to the subcontracting legislation is to enable cost increases to be passed up the chain. In an inflationary environment, the imposition by a powerful buyer of cost increases upon its supplier is not merely a question of contractual fairness; it causes losses of investment and employment on the supplier side and therefore affects the long-term structure of competition as well. This argument offers the most defensible route to connecting a superior bargaining position regime with the objectives of competition law.
C. Proposal: not a general provision but a graduated structure
On this balance, the addition to Act No. 4054 of a broad and indeterminate general provision on the Japanese model does not appear defensible. Such a provision would risk conceptual confusion in the Act's objectives and, given the pace of judicial review in Turkey, would generate a protracted period of uncertainty. A three-tiered structure may instead be proposed.
First tier — a narrow opening within Act No. 4054. Rather than a general concept of "superior position" substituting for dominance, a provision might be added prohibiting a defined and limited number of typified forms of conduct within a relationship of economic dependence. Its scope should be confined by objective criteria such as a dependence threshold (for instance, a specified proportion of the counterparty's turnover derived from a single undertaking) and the absence of an alternative transactional channel. The comparative threshold of twenty to thirty per cent to which the Board referred in Koctas is a reasonable starting point for discussion.
Second tier — extension of the scope of Act No. 6585. The existing catalogue in Article 6 is substantially sound; the difficulty is that its scope is confined to retail. Establishing a parallel regime for ancillary-industry relationships in manufacturing and for service procurement would perform the function of Japan's subcontracting legislation. In doing so, one caution drawn from the Japanese experience should be observed: thresholds based on capital or turnover alone invite avoidance, and criteria less susceptible to manipulation, such as employee numbers, must be added.
Third tier — procedural measures. If it is accepted that the true bottleneck lies in procedure rather than substantive law, the interventions offering the highest return are: (i) protection of the identity of the complaining supplier, an express prohibition of retaliation, and evidentiary facilitation; (ii) clarification that the commitment mechanism under Article 43 of Act No. 4054 may be operated so as to include repayment to the injured party, as in Japanese practice; and (iii) the establishment of an information-sharing and referral mechanism between the Competition Authority and the Ministry of Trade.
What distinguishes this three-tiered structure from the Japanese model is its reliance on typified conduct and objective thresholds rather than on a general concept. What it takes from the Japanese model is its treatment of the problem within an administrative regime rather than its relegation to private law, and its placement of the compensatory dimension within that administrative procedure.
VI. Conclusion
The regulation of abuse of superior bargaining position in Japanese law is a departure from the classical architecture of competition law, and that departure has generated both theoretical and practical costs: conceptual indeterminacy, uncontrolled expansion of scope, and difficulty of alignment with the objectives of competition law. Those costs make it hard to advocate importing the regime as it stands.
The phenomenon to which the regime responds is nonetheless real, and it exists in Turkey. Since the MEPA decision, the Competition Board has for a quarter of a century identified that phenomenon while being unable to intervene, by reason of the dominance threshold in Article 6 of Act No. 4054. In Koctas and Metro Grosmarket the existence of the phenomenon was expressly acknowledged and the dispute referred to the commercial courts. The normative instruments of the commercial courts are adequate; yet those instruments are in practice little used, owing to the risk of retaliation and the cost of litigation. The result is a party protected at the normative level but unprotected in fact, and an authority that sees the phenomenon but cannot act upon it.
What this picture calls for is not the general abandonment of the dominance threshold, but a narrow opening addressed to typified conduct within relationships of economic dependence and bounded by objective thresholds; the extension of the sectoral scope of Act No. 6585 to manufacturing; and the resolution of the procedural problems — protection against retaliation, a compensatory mechanism, and inter-institutional coordination — that constitute the real bottleneck.
The principal contribution of the Japanese experience to Turkish law is not that it supplies a provision to be copied. Its contribution is to show that power asymmetry is a field left ownerless between competition law and contract law, and that its ownerlessness is not a choice but an omission.
[1]Shiteki dokusen no kinshi oyobi kosei torihiki no kakuho ni kansuru horitsu, Act No. 54 of 1947. For the official English translation see the Japanese Law Translation database.
[2]Nishimura & Asahi, Antimonopoly & Unilateral Conduct Know-How: Japan, 2020, p. 6.
[3]JFTC, Guidelines Concerning Abuse of Superior Bargaining Position under the Antimonopoly Act, 30 November 2010. The text of the Guidelines is published on the JFTC's official website.
[4]Masako Wakui / Thomas K. Cheng, "Regulating Abuse of Superior Bargaining Position under the Japanese Competition Law: An Anomaly or a Necessity?", Journal of Antitrust Enforcement, Vol. 3, No. 2, 2015, pp. 302-333.
[5]Wakui / Cheng, op. cit., pp. 302 et seq.
[6]Respectively: JFTC cease-and-desist order against Valor Co. Ltd of 13 October 2006; against Eco's Co. Ltd of 23 June 2008; against Yamada Denki Co. Ltd of 30 June 2008; and against Royal Home Center Co. Ltd of 30 July 2010.
[7]JFTC cease-and-desist and surcharge payment order against Toys"R"Us-Japan Ltd of 13 December 2011; decision at the conclusion of hearing proceedings of 4 June 2015 (Heisei 24 (han) Nos. 6 and 7).
[8]JFTC cease-and-desist and surcharge payment order against EDION Corporation of 16 February 2012.
[9]Nishimura & Asahi, op. cit., p. 6.
[10]JFTC, "Approval of the Commitment Plan submitted by Genky Stores, Inc.", 5 August 2020; JFTC, "Approval of the Commitment Plan submitted by Amazon Japan G.K.", 10 September 2020. On the basis for monetary reimbursement within commitment plans see JFTC, Policies Concerning Commitment Procedures, 26 September 2018, 6(3)(b)(f).
[11]According to statements by the former Chairman of the JFTC, Kazuyuki Furuya, Amazon Japan paid a total of approximately JPY 2 billion to some 1,400 suppliers. See "CPI Talks… with JFTC Chairman Kazuyuki Furuya", Competition Policy International.
[12]On the renaming of the Subcontract Act as the "Act Against Delay in Payment of Fees, etc. to Small and Medium-sized Entrusted Business Operators in Manufacturing and Other Specified Fields" and the accompanying change in terminology, see DLA Piper, "Major Amendments to Japan's Subcontract Act", December 2025; One Asia Lawyers, "Japan: Amendments to the Subcontract Acts", September 2025.
[13]JFTC, "Regarding the passage of the Act to amend the Subcontract Act and the Act on the Promotion of Subcontracting Small and Medium-sized Enterprises", 16 May 2025.
[14]One Asia Lawyers, op. cit., § 2.1.2.
[15]See JFTC, Guidelines for creating a safe environment where people can work on a freelance basis.
[16]JFTC, Guidelines Concerning Abuse of a Superior Bargaining Position in Transactions between Digital Platform Operators and Consumers that Provide Personal Information, etc., December 2019. For the publication of the draft for public consultation see the JFTC press release of 29 August 2019.
[17]See "A Study on Abusing Superior Bargaining Position in the Anti-Monopoly Act and Its Relation to the Act on the Protection of Personal Information in Japan", Inria/HAL, hal-03525270, 2022.
[18]Wakui / Cheng, op. cit., abstract and conclusion.
[19]"Abuse of Superior Bargaining Position in Japan – Its Development and Current Position", Competition Policy International, 2023.
[20]Kaori Yamada / Hideto Fujita, "Abuse of Superior Bargaining Position: JFTC's Enforcement Tool against Anti-Competitive Conduct", Freshfields Bruckhaus Deringer / International Law Office, 2018.
[21]"Superior Bargaining Power: The Good, the Bad and the Ugly", Asia Pacific Law Review, Vol. 27, No. 1, 2019.
[22]Competition Board decision No. 00-50/536-298 of 21 December 2000 (BETA Basim Yayim Dagitim A.S.).
[23]Competition Board decision No. 02-49/634-257 of 23 August 2002 (Karbogaz); decision No. 06-92/1173-351 of 20 December 2006 (Habas).
[24]Competition Board decision No. 00-18/176-94 of 16 May 2000 (MEPA/Yurdatap).
[25]Competition Board decision No. 11-52/1320-471 of 13 October 2011 (Koctas).
[26]Koctas decision, op. cit.
[27]Competition Board decision No. 12-41/1178-388 of 9 August 2012 (Metro Grosmarket). For the report referred to in the decision see Turkish Competition Authority, Final Report of the Sector Inquiry into Fast-Moving Consumer Goods Retailing, 24 May 2012.
[28]Competition Board decision No. 15-30/445-132 of 10 July 2015 (Tirsan Kardan / Tiryakiler).
[29]For an assessment of the proposed Article 6/A see Cengiz Sanli / Dogan, Observations on the Draft Act Amending the Act on the Protection of Competition, Istanbul Bilgi University Competition Law and Policy Research Centre.
[30]Ibid.
[31]Act No. 6585 on the Regulation of Retail Trade, Article 6 (amended together with its heading by Act No. 7435 of 26 January 2023, Article 13).
[32]Act No. 6585, Article 7 (amended and supplementary paragraphs added by Act No. 7435 of 26 January 2023, Article 14).
[33]Act No. 6585, Article 18. The amounts applicable for 2026 were determined by the Communiqué of the Ministry of Trade published in the Official Gazette of 20 December 2025, No. 33113.
[34]Decision of the Assembly of Civil Chambers of the Court of Cassation of 15 November 2023, File No. 2022/621, Decision No. 2023/1097; to the same effect, decision of the Assembly of Civil Chambers of 9 October 2024, File No. 2024/321, Decision No. 2024/505.
[35]Decision of the 19th Civil Chamber of the Court of Cassation of 26 January 2015, File No. 2014/13854, Decision No. 2015/932.