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Nonetheless, when the above conditions are present, the risk of tacit collusion is high. Importantly, the nature of electronic markets, the availability of data, the adoption of similar algorithms by key providers, and the stability and transparency they foster will likely push some markets that were just outside the realm of tacit collusion into interdependence. Some argue that, absent some communication, tacit collusion is inherently unsustainable even in the markets with the characteristics described above. According to this view, tacit collusion will rarely occur in the real world without some supporting communication.

This means that, absent prior communication, tacit collusion is unsustainable because firms are unlikely to develop a mutual understanding over a collusive strategy. These assertions are often based on empirical observations under laboratory conditions, with perfect control and transparency over communications.

Permitting communications in experiments, even briefly, increased the ability to sustain coordination regarding higher prices.

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Absent communications, tacit collusion was difficult, if not impossible, to sustain. The authors argue that this view is inconsistent with the legal framework, has failed to persuade enforcers and courts with respect to tacit collusion in the brick-and-mortar economy, and is unlikely to gain traction in the digital economy.

In particular, when competition agencies or courts observe conscious parallelism that yields supra-competitive pricing, they do not assume that competitors must have communicated with each other to collude. In effect, the possibility of rational tacit collusion provides a defence against accusations of anticompetitive behaviour. The law recognises that, under certain market conditions, companies can rationally engage in parallel behaviour and behave as if they were colluding by adjusting to market characteristics without communicating, and that this will not infringe competition law.

Instead, tacit collusion can only be attacked indirectly, by going after practices that facilitate tacit collusion or by targeting mergers that foster tacit collusion. In other words, there are many instances of judicial recognition that tacit collusion can arise without communication.


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Part IV addresses doubts concerning the plausibility of algorithmic collusion. Once one accepts the premise that conscious parallelism can occur without the communications that expose firms to antitrust liability taking place, then one must query whether algorithms can facilitate tacit collusion, and do so in a superior manner to that of humans. Some have questioned the ability of algorithms to stabilise tacit collusion. In particular, it is argued that the potentially large number of collusive equilibria presented by algorithms will decrease the likelihood of alignment in a repeated game.

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In addressing this argument, the authors distinguish between simple and complex algorithms. Humans may program algorithms to reflect the logic behind conscious parallelism — by punishing deviations and following price increases. The authors emphasise how algorithms may lead to increased transparency, identify laboratory studies that demonstrate that this may lead to higher prices, and provide examples of actual situations where increased transparency led to price rises e.

The authors further note how the use of similar algorithms by different firms, and the ability to identify the strategy employed by other firms, may further stabilise parallel behaviour. For example, companies may rely on the same provider of algorithms, leading to something akin to an algorithmic hub-and-spoke arrangement. Complex algorithms, including sophisticated self-learning algorithms, may rely on artificial intelligence to determine the optimal strategy autonomously.


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In this case, human attempts to stabilise parallel behaviour on the market would not occur. However, self-learning algorithms may nonetheless decide to adopt a strategy which may lead to price increases. Law Journal Indexes Below is a list of indexes to journal articles which may be useful for literature searches.

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These are abstracts with full publication details but where the article is available full text on Westlaw there will be a link through. It is available to search by title, author, keyword and full text and there are advanced options to narrow down by date. The first time you log in you will be asked for your name and Oxford email address.


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Next time you log in, you select Access through academic institution and this will take you to the Oxford Single Sign On screen. There is also the Index to Foreign Legal Periodicals. Contains abstract and citation information. Although not restricted to legal articles this does include law and is especially good for subjects such as human rights.

You can search for author, title, subject or full text. There is also a button called "find it at oxford" which will show you where you can find the article in Oxford. Google Scholar Google Scholar is a free resource which includes full text articles that are freely available on the web, citations, abstracts and also books. There is no list of what resources Google Scholar indexes but the coverage has improved massively over the past 5 years.

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You can do a basic search over the full text or search by author, title, publication and date. Covers to date and includes an email alerting service. Portals to free law reviews and journals Directory of Open Access journals Links to scholarly journals which allow some or all of their content to be accessed by anyone, free of charge.

American Bar Association portal This is a portal to free law reviews and journals. There are links through to the journals as well as a Google powered search engine. I welcome PhD proposals in the general areas of public international law, human rights law, the European Convention on Human Rights, EU law and comparative constitutional law; and more specifically proposals about the interaction of legal orders, international law in national legal orders, the Constitutionalisation of legal orders, EU Foreign relations law, general principles of law and the use of force in international law.

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