The Per Se Turn At The CCI: Constitutional Questions And Business Risks

The Competition Commission of India ("CCI"), in a string of recent decisions and enforcement approaches has increasingly invoked a per se mindset when dealing with certain categories of agreements. Proponents say the per se stance is necessary to deter inherently wrong conduct while critics argue that it risks producing rigid and arbitrary outcomes by rather short-sighted economic analysis and by treating an adverse presumption as conclusive. The debate is not merely an academic one. It has implications on constitutional guarantees of equality and affects enforcement risks and decision making for entities.

Per se versus Rule of Reason

Competition law historically deploys two analytical tools to evaluate restraints on competition. The per se rule treats certain classes of restraints like cartels, market allocation agreements, bid rigging as unlawful per se without the need for a detailed inquiry into market structure or actual impact. The rule of reason approach