The trend towards convergence of substantive antitrust doctrine means that most jurisdictions now condemn agreements among competitors that fix prices. But that same convergence means that those same jurisdictions must wrestle with the problem of how to establish the existence of an agreement, especially in an oligopolistic industry where high prices could, at least in theory, be the result simply of oligopolistic interdependence. Do we condemn such interdependence? Do we ignore it and require an explicit agreement? Or is there some middle ground? This chapter explores how the U.S. and, to a lesser extent, the EU, have approached the problem of dealing with a cartel when there is no hard evidence of an explicit agreement. The first option is to try to prove the existence of an explicit agreement through circumstantial evidence; a second is to relax somewhat the requirement that there be an explicit agreement. The effort to find the perfect solution continues.
Date of Authorship for this Version
Hay, George A., "Anti-competitive Agreements: The Meaning of “Agreement”" (2013). Cornell Law Faculty Working Papers. 105.