Document Type

Report

Publication Date

5-2024

Abstract

Existing joint agency guidance from the FTC and DOJ, “Antitrust Guidelines for Collaborations Among Competitors” was written in 2000 and is misaligned with the agencies’ focus on market power considerations and protecting the competitive process. This white paper seeks to provide a rationale and suggestions for revising the collaboration guidelines. We look to examples in other jurisdictions, with an eye to their treatment of sustainability-related collaborations, as many were updated with these considerations in mind. Importantly, we do not recommend that updated guidelines follow international examples in creating explicit sustainability-related carve outs, safe harbors, or exemptions. Due to the complex and expansive definition of sustainability-related private sector activity, exemptions could lead to obfuscation or abuse. However, we think that updated guidance would benefit from including sustainability-related examples of permissible collaborations to better align with modern market realities and societal challenges. We provide concrete recommendations on how to approach various kinds of collaborations, including: information sharing, joint research and development initiatives, joint procurement, and standard setting. We also discuss how updated guidance should move away from efficiencies-based justifications for anti-competitive behavior, as well as consider monopsony dynamics of collaborations, presumptive thresholds, and consolidation concerns.

Disciplines

Antitrust and Trade Regulation | Environmental Law | Law

Center/Program

Columbia Center on Sustainable Investment

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