Antitrust Guidance

Introduction

Trade associations such as the International Lithium Association (“ILiA“) play an important role in society, advocating on behalf of their industry sector and representing the common interests of their members.

However, as trade associations bring together competitors from the same industry, they are subject to particular antitrust scrutiny.  

While antitrust laws differ across jurisdictions, it is ILiA’s policy to ensure compliance with antitrust laws of all of the jurisdictions in which its members operate. These guidelines are therefore based on principles of antitrust law common to most jurisdictions, with a particular focus on those that are known for having the strictest rules.

These guidelines must be complied with by all ILiA members and ILiA employees in connection with all activities, initiatives, events and meetings of ILiA. This is without prejudice to each member’s obligations to comply with antitrust laws when carrying out their own activities.

General principles

Most, if not all, antitrust regimes prohibit agreements between competitors that restrict competition and in particular those which:

• directly or indirectly fix purchase or selling prices or any other trading conditions;  
• limit or control supply, production, technical development, or investment; and/or
• share markets or customers.

An ‘agreement’ in this context goes beyond formal, written contracts and can capture oral, written, formal, informal, direct and indirect contact between members. ‘Unspoken’ arrangements (a ‘nod and a wink’ or ‘gentleman’s agreement’) are covered by antitrust laws, as are decisions and recommendations of ILiA itself.

Even absent an ‘agreement’ in the conventional sense, the following actions by members are therefore likely to infringe antitrust laws:

• Unilateral announcements that amount to public signalling of a member’s intentions regarding the above-listed topics.
• The exchange of competitively sensitive information by ILiA members without adequate safeguards in place (see further below).

These guidelines are intended to minimise the risk of any anti-competitive behaviour on the part of ILiA and its members.

Conduct at ILiA meetings / events

Competitively sensitive information

Members should never discuss, exchange or reach any agreement on competitively sensitive information.

Examples of competitively sensitive information
Future price plans and pricing strategies	Market shares, including sales revenues and sales volumes
Credit and other standard terms	Selection or termination of customers
Profits and profit margins	Negotiation strategies
Production costs and cost structures	Common responses to requests from customers
Future strategic plans and investments	Specific tenders or bids
Future production/supply volumes	Information on start-ups/lead times
Information on planned capacity curtailments

This prohibition applies to both formal ILiA meetings / events (including any discussions that are not covered by official agenda items) as well as any informal contacts between members at the fringes of meetings / events.

If any member suspects that any discussion or activity at an ILiA meeting / event violates antitrust laws or these guidelines, the member must insist that the discussion be halted and refer the matter to the Chairman of the Executive Committee. The member may also wish to discuss the matter with its own legal counsel.

A member’s failure to distance itself from such discussions can be enough implicate them.

Meeting protocol

The following protocol shall be observed at ILiA meetings in order to reduce the risk of antitrust issues arising:

• ILiA’s external legal counsel shall be present at all plenary meetings to monitor and ensure compliance with applicable antitrust laws.
• All ILiA meetings shall have a formal written agenda which is to be circulated to all participants in advance.
• Agendas for meetings which do not relate exclusively to technical issues shall be reviewed in advance by a director of the ILiA who shall consult ILiA’s external legal counsel as appropriate. If it is deemed advisable following consultation, ILiA’s external legal counsel shall attend the relevant meeting to ensure compliance with applicable antitrust laws.
• Any materials to be disseminated or discussed at meetings and that relate to potentially competitively sensitive information (for example prices or costs) shall be reviewed by ILiA’s external legal counsel in advance.
• Accurate minutes shall be taken at all meetings. Minutes of any meeting shall be reviewed by ILiA’s external legal counsel prior to circulation.
• At the outset of each ILiA meeting, attendees shall be reminded of the principles set out in Antitrust Compliance Declaration at Annex 1.
• If a meeting participant is concerned or uncertain whether issues discussed or raised by a fellow member might result in antitrust law issues, the discussion of the subject shall be stopped (or suspended until clearance is obtained from ILiA’s external legal counsel), and that fact shall be recorded in the minutes.