The Evolution of Antitrust Regulation of Joint Venture Agreements

Abstract

Cooperation agreements between competitors can be an important tool for markets to adapt to external shocks, whether those are the consequences of a pandemic or economic sanctions. In this regard, the discussion of approaches to evaluating such agreements for admissibility from the point of view of antimonopoly legislation under current conditions is relevant. The purpose of the article is to assess the current state of antimonopoly control of cooperation agreements in Russia. To do this, we use the tools of the new institutional economic theory to analyze the history of the development of the regulation of such agreements. We reveal how modern sources of possible type I enforcement errors (the erroneous prohibition of agreements that actually contribute to the growth of public welfare) are connected with the history of institutional changes in the rules governing the analysis of cooperation agreements from the point of view of antimonopoly legislation. In particular, we show that the approaches to the analysis of cooperation agreements developed during the period of validity of a specific set of rules in 2011–2015 and summarized in the Clarifications of the Presidium of the FAS Russia on the procedure and methodology for analyzing cooperation agreements (2013) currently create an overly strict control regime for such agreements after the changes in the antimonopoly law that took place in 2015. The importance of solving this problem is demonstrated in light of the ability of companies to use cooperation to mitigate the consequences of external shocks, including economic sanctions. Structural alternatives to the control of such agreements are formulated that are applicable to various actual forms of agreements between competitors, which could contribute to a better adaptation of market participants to changing conditions.