This is the case of the judgment of the EFTA Court of Justice of 22 December 2016, in which the Court effectively stated that while the parties could offer individually, a common offer constituted an effective restriction of competition. Nevertheless, other major antitrust authorities do not follow this very tough stance vis-à-vis joint bidder agreements. A brief overview of international practice shows that an “object-based” or in-it-own approach to joint tenders is not in line with the position of mature lawyers worldwide. For example, the content of a JSBA is always a product of the time available before the licence application is filed (which, in the case of ukcs, is usually 90 days from the start of the licence cycle). The JSBA is usually designed for an early finish line – licensing. Instead, the parties should be as detailed as possible within the JSBA so that the joint venture between the consortium members can be operated until the JOA agreement. In addition, the parties should be aware that there may be mutual interest agreements (“AMIA”) that could bind potential consortium members. The impact of these existing agreements on the composition of the envisaged consortium needs to be carefully considered. Conceptually, the JSBA, as a precursor to JOA, is a short-term agreement that must operate between the granting of the license and the completion of the JOA. It may be that one party in particular brings much more value to the consortium than the others when it alone has certain quality information.
In order to enable it to communicate such information to the consortium, it may seek a higher level of comfort in protecting its confidentiality than is usually the case in a standard trust agreement, for example by requiring certain compensation from the parties. Therefore, the parties should take into account that a debate may take place during the negotiation of the confidentiality agreement and the parties who have to disclose less (or not) confidential information will therefore be less concerned about the confidential aspects of their relationship. In some cases, consortium members may not unanimously agree on the blockages (or blocks) they wish to request jointly and on the terms of the proposed licence application. In such a case, it is customary for the JSBA to conduct a lawsuit that results in a proposal, but in which parties who do not support such a proposal may choose not to participate. If the parties participate less than all parties, the participations in the proposal must be recalculated and each participating party is normally allocated a larger stake than it originally envisaged when entering the JSBA, unless third parties are introduced in the application (see above) in place of the non-partisan parties; in order to prevent the remaining parties from increasing their respective shares. . . .