Per se rule and rule of reason in Chilean antitrust law (and the objective capacity of an agreement or concerted practice to harm competition as a prerequisite for its punishment)

Abstract

The article seeks to rebut that under chilean antitrust law a rule of reason analysis is the general rule and the per se rule approach is the exception. First, the article clarifies the nature of this distinction through paying due regard to the general defeasibility of legal concepts. The article concludes that the distinction is only practicable if we ground it on whether a prohibition explicitly refers to the necessity to balance pros and cons (rule of reason) or doesn’t refer to the need to balance pros and cons (per se rule). After this the article analyzes Chilean law. It concludes that most of the prohibitions that are thought to be evaluated through a rule of reason approach should actually be analyzed through a per se rule approach.