BSR expects all organizations involved in any BSR initiatives (i.e. collaborations and multi-company projects) to acknowledge and understand that their activities must at all times be undertaken in compliance with all applicable laws and regulations, including but not limited to laws and regulations relating to antitrust and competition. These laws are intended to preserve and promote free, fair and open competition. Failure to abide by these laws can potentially have extremely serious consequences for BSR and participating organizations.
The policy of BSR is therefore to conduct all associated initiatives and activities in compliance with all applicable antitrust and competition laws, to facilitate independent decision making that can lead to pro-competitive, and output enhancing ends which help advance the objectives of the initiative.
Antitrust and Competition Law—The Basics
The basic purpose of the antitrust and competition laws is to promote the efficient function of the market economy. The ordinary flow of the marketplace can be inhibited by agreements among competitors that restrict competition between them.
The antitrust and competition laws broadly prohibit competitors from restraining competition among themselves with respect to price, supply, quality, or the distribution of any products or services. That prohibition covers many types of conduct, including facilitating collusion or parallel conduct across an industry through joint activity, standard setting, information sharing, refusals to deal, boycotts, or other restrictive agreements. As discussed in more detail below, there are certain agreements, or restraints, that are per se (always) illegal, regardless of their justifications, while others are evaluated under a more flexible rule of reason standard.
All participants in BSR initiatives should make independent decisions about how to best pursue their shared objectives.
Voluntary Participation and Engagement
Participation in related BSR initiatives is voluntary. All associated and participating organizations remain at all times independently responsible for their own business decisions, in line with their business priorities, objectives, and obligations to shareholders or other stakeholders.
Participants Must Not Facilitate Anticompetitive Agreements or Coordination
It is against the policy of BSR to sponsor, encourage or tolerate any discussion, communication of any kind, information sharing or agreement that would violate applicable antitrust or competition laws.
Note that even informal agreements may violate the antitrust laws. An anticompetitive agreement can be found to exist whenever the circumstances indicate that an agreement has been reached expressly or implicitly. A wink and a nod, or other informal acknowledgement, may create an agreement under the antitrust laws just as a written contract might. Thus, it is vital to stay away from conduct which could even have the appearance of facilitating such an agreement.
Any discussion, communication of any kind or agreement relating to commercially sensitive information, including but not limited to the following, must therefore be strictly avoided at all times:
- Do not engage in discussions that could result in:
- the allocation of customers or markets;
- aligning on or coordinating prices;
- limits on production;
- boycotts of customers, suppliers or rivals; or
- concerted actions that would competitively disadvantage other rivals or participants of the Collaboration.
- Do not discuss proprietary or other competitively sensitive information with competitors. This would include:
- Prices, rates, credit terms or other terms of trade, pricing formulas or strategies, discount or rebate policies, targeted profit margins;
- individual company bids or intentions to bid for particular products, procedures for responding to bid invitations, or specific contractual arrangements;
- strategic R&D, production, or marketing or R&D plans that have not been publicly announced or that reveal targeted territories or customers;
- past, present or projected production capacity levels or plans;
- past, present or projected costs to procure, develop or manufacture products;
- wages, compensation, or other benefits provided to employees; or
- hiring practices (e.g., hiring, solicitation, or recruitment plans or policies).
- Do not identify specific customers or transactions in discussing your firm’s experiences or issues facing the industry.
- Do not use words or terms that imply concerted action, such as “boycott”, “destroy” or “dominate” or “control.”
No discussion, communication or agreement of this type should occur during, in or around any collective meetings or calls, whether written, oral, formal, informal, by act or omission, in social settings, or “off the record.” Each participating organization is required to stop any discussions that violate this policy and report any violations to its own counsel and make sure BSR is aware.
Other Activities
Some practices may violate the antitrust laws if, in light of the surrounding circumstances, they unreasonably restrain trade. Restraints are generally found to be unreasonable when they substantially reduce competition for a particular product or service, diminish quality or output, or prevent a current or future industry participant from competing in the market, without sufficient efficiency-enhancing benefits to offset such harms to competition. Members and Participants should be mindful of the following activities:
Exclusive dealing arrangements. Agreements requiring a company to buy only from certain sellers—or sell only to certain buyers—can violate the competition laws if doing so substantially forecloses competitors from accessing a market.
Refusals to Deal: Agreements among two or more industry participants to not deal with another competitor, supplier, or customer (i.e., a group boycott) can violate the antitrust laws if the effect of the agreement is to exclude a participant from a particular market.
Standard Setting: Implementing standards for an industry or attempting to set up industry-wide initiatives can present competition risk where the collaboration may favor certain participants or exclude others.
It is critical for participating organizations to make their own independent decision regarding the conduct of its business, including decisions about with whom to deal, on what terms, and whether to endorse or adopt certain standards.
Best Practices During Collaboration Meetings
The following guidelines are designed to help participants avoid topics of antitrust concern during collective meetings:
- Collective meetings shall adhere strictly to written meeting agendas.
- Object to any discussion or meeting topics that seem problematic from an antitrust perspective. If the discussion does not stop, leave the meeting, record your exit, and confer with appropriate counsel.
- Ensure that proposed polices or standards are based on objective criteria which can be documented and explained.
- Consult with legal counsel before proceeding with a proposed standard that may diminish some market participants’ ability to compete or may favor other participants, particularly those involved in drafting the policy. Consult with counsel if you are not sure of the effect of a proposed standard.
- Consult with legal counsel regarding any conduct or discussions that you think might be inappropriate, and to ensure compliance with antitrust law.
Participating organizations will ensure that its representative(s) who attend meetings of, or are otherwise involved have received adequate training in compliance with antitrust law with particular reference to dealings with competitors, including exchange of information, and have reviewed this Policy.
A copy of this antitrust compliance policy statement will be provided to all participating organizations. This statement is a general guide only and all questions concerning antitrust and competition law compliance should be referred to appropriate counsel.