Shikha Roy v Jet Airways: A New Approach to Algorithmic CollusionClick here to read the full article online
There has been tremendous growth in the use of algorithms across industries. The use of such algorithms has triggered a debate over how competition authorities should regulate the challenges that these new-age technologies pose, especially with respect to enabling traditional antitrust offences such as cartels. Scholars at one end of the spectrum suggest that the challenges are nothing but old wines in new bottles, the others at the opposite end of the spectrum regard them as the end of antitrust as we know it. One thing on which both these schools of thought agree upon is the need for a standardised procedure and developing new tools of investigation for cases concerning algorithmic collusion. It is in this context that this article aims to critically examine the Competition Commission of India’s decision in Shikha Roy v Jet Airways. The authors attempt to juxtapose the already existing jurisprudence concerning cartels, coupled with the jurisprudence developed in Shikha Roy’s case concerning algorithmic collusion, with the theoretical framework proposed by Ariel Ezrachi and Maurice Stucke in their seminal work, ‘Virtual Competition: The Problems and Perils of Algorithm-Driven Economy’. By doing so, the authors attempt to assess whether the Indian framework of competition law in general and cartels, in particular, is sufficient to deal with the dangers highlighted in Virtual Competition. Additionally, while making this assessment, the authors also propose a two-step test developed from the judgement and apply it to the framework of Ezrachi and Stucke. Finally, this article concludes that the current approach of the Commission is appropriate to deal with the challenges highlighted by Ezrachi and Stucke.