Legal aspects of associative agreements in Brazil and CADE’s judgments perspective

Alexandre Ferreira de Assumpção Alves / José Carlos Jordão Pinto Dias

Keywords

Business contracts; Associative agreements; Art. 90, Law no. 12.529/2011; Corporate unbundling; Collaboration; Mergers and acquisitions.

Abstract

The present paper analyses aspects of associative contracts, category founded in art. 90, Law no. 12,529/2011. CADE's most recent decisions, in light of Resolution no. 17/2016, set four requirements for the contract to be qualified as associative, for the purposes of art. 90 of Law 12.529 / 2011, that is, i) the parties are competitors; ii) duration of more than two years; iii) joint venture to explore economic activity; and iv) sharing of risks and results. The research applies deductive method, using bibliographical and documentary research. It is also a multidisciplinary investigation and is a topic related to Contract Law, Competition Law and Economic Law. The article deals, first, with the phenomenon of corporate unbundling and the rise of collaboration between economic agents. It then deals with the institutes of economic coordination, collaboration and concentration. Following, it intends to define associative agreements, analyzing the legal basis of the institute. Studies Administrative Council of Economic Defense (Cade) normative Resolution no. 17/2016, which regulated the cases of notification of associative agreements, replacing Resolution no. 10/2014. Forward, it distinguishes associative contracts and other institutes. At the end, presents conclusions about the research.