Collaboration and competition are not at odds with each other, some forms of collaboration can restrain competition and will be assessed with caution. Companies that are now considering ESG initiatives should be aware of the potential antitrust risks involved.
There are three main features of ESG that may have implications when it comes to competition law. The first one, which has a bearing on competition, would be the fact that ESG involves long-term vision, so the whole idea of ESG is to promote resilience and avoid the so-called pitfalls of short-termism. The second feature that may potentially clash with antitrust regulations is the fact that ESG investment typically refrains from certain economic sectors, so in that sense, ESG coordination can be seen as a pretext for collusion.
The third ESG feature is the fact that most ESG underlying issues, such as climate change, other environmental issues, labor rights, human rights and other social issues are often systemic in nature, so that means that they actually require collective action in order for companies to actually move the needle and make a difference. With all collaboration between Industries, ESG initiatives are subject to antitrust scrutiny.
It is a very difficult question to address, some of the sustainability initiatives might be fit under the categories of production agreements, commercialization agreements but the point is that for Brazilian competition policy and from the Brazilian perspective we have to say that collaboration agreements are still challenging for CADE to access, as CADE does not have some guidelines on horizontal agreements.
