Whish urges restraint on algorithmic collusion

Malina McLennan

05 July 2017

Whish urges restraint on algorithmic collusion

Richard Whish at GCR Live Brussels 2017, GCR Live / Freedom Film LLC

King’s College London emeritus professor Richard Whish QC today largely dismissed the potential need for a new model of competition law to deal with algorithmic collusion, arguing that its effects differ little from other traditional tools used for cartel agreements. Malina McLennan at GCR Live in Brussels

Whish today said the “anxiety” within the competition community when it comes to dealing with ostensibly new competition concerns about the use of algorithms presents no issues that antitrust law does not currently tackle.

“[Are algorithms] really a generalised crisis? No,” Whish said. “I don’t think is a major concern – it is a part of modern life.”

“Whenever I hear about new things in competition law – new theories of harm, concerns about innovation – I’m always inclined to say ‘let’s just keep calm here,’” Whish said.

Addressing concerns that algorithms are contributing to and at times reinforcing price parallelism, Whish urged the GCR Live audience to consider the fact the presence of an algorithm does not immediately answer the question of whether concerted practices were also present.

Whish said the main worry is that algorithms are achieving, contributing or reinforcing price parallelism in the markets. He said he can see that it could be “supremely efficient” for cartels to use price-tracking software to monitor members’ compliance to its terms, but that he did not see a difference between algorithmic price-monitoring and more traditional mechanical methods – such as distributing price lists or communicating through trade associations. 

In cases where software could be used to signal to competitors when companies plan to change their prices, Whish said that the existence of price signalling is the concern – not the use of an algorithm to carry it out.

He said the European Court of Justice’s VM Remonts judgment was additionally “the clearest statement imaginable” on the topic of artificial intelligence. The July 2016 case opened the door for companies to be held liable for the anti-competitive practices of subcontractors, and face scrutiny unless the third parties acted outside the limits of their mandate.

“If AI is achieving supracompetitive equilibrium through adaptation, I don’t see the difference between that and human actors doing the same thing,” Whish said.

GCR Live 9th Annual Brussels Conference: The bigger picture concludes today.

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