Opinion on collaboration agreements the law permits between competitors

The question this service answers

A client arrives with a concrete project and a binary doubt: whether it can be done together with a competitor. The useful answer is not a list of prohibitions. It is an opinion stating whether the agreement fits the cases the law recognises, what limits must be respected for it to keep fitting, and what evidence is worth keeping in case the authority asks later.

The cases the law recognises

Decree 2153 of 1992 lists conduct that is not deemed contrary to free competition. It is the entry point for much legitimate collaboration.

• Agreements whose object is cooperation in research and development of new technology.
• Agreements concerning compliance with standardisation rules adopted by the competent bodies.
• Agreements relating to procedures, methods, systems and forms of use of common facilities.

To these are added the authorisation cases contemplated in Law 155 of 1959 and the general framework of Law 1340 of 2009, which set out who may intervene and with what scope. The analysis does not end with finding the applicable case: the specific agreement must also be checked against the limits of what that case permits.

Where an agreement that started well falls apart

Most problems arise not in the object of the agreement but in what gets added later. A joint research project that began as a technical exercise ends up hosting a conversation about prices; a standards committee starts discussing production capacity. That is why structure matters as much as characterisation.

• Defined object. Drafted precisely, with no open-ended clauses that let the collaboration expand into commercial decisions.
• Information shared and information withheld. With an express list and a filtering mechanism where price, customer or capacity data is involved.
• Separation of teams. The people in the joint project are not the ones who set prices or negotiate with shared customers.
• Duration and exit. A defined term, termination rules and the fate of what was jointly developed.
• Governance and minutes. Agendas circulated in advance, a record of what was discussed and control over topics outside scope.
• No unjustified exclusivity. A check on whether the agreement closes the market to non-participants.

What we review

1. The project as proposed: who takes part, what position each holds in the market and what each contributes.
2. Whether the collaboration fits one of the statutory cases, and on what reading.
3. What information the project genuinely needs, and what information was going to be shared without any need.
4. The text of the agreement, with the drafting of the safeguards that hold it up.
5. The documentation of the process, so the trail exists from day one instead of being reconstructed later.

What the client receives

• A written opinion on the viability of the agreement, with the applicable statutory basis, the conditions for sustaining it and the caveats that apply. Where more than one reasonable reading exists we say so and explain which we support.
• The draft agreement, or the safeguard clauses to be built into the document that already exists.
• Governance rules for the project: who participates, what is shared, how each meeting is documented.
• A list of the evidence worth keeping, at the level of detail that actually helps against a later information request.

Typical situations we handle

• Two manufacturers in the same sector want to develop a product or a technology together.
• A group of companies shares a warehouse, a fleet or a distribution platform.
• A trade association wants to adopt a technical standard or a common protocol for the sector.
• Several companies respond jointly to a regulatory requirement or to a demand from an institutional customer.