India’s digital economy is increasingly governed by dominant platforms such as Google, Amazon, and Zomato, which use pre-drafted, non-negotiable contracts to impose terms that can significantly shape market dynamics. These contracts often include practices such as tying, bundling, and exclusivity, which, while potentially anti-competitive, are assessed by the Competition Commission of India (CCI) using the Appreciable Adverse Effect on Competition (AAEC) standard. This framework, which focuses on demonstrable output or price-based harm, is ill-equipped to capture subtler forms of exclusion rooted in contract design. Although the CCI has acknowledged contractual practices in cases like Google v. ADIF, enforcement remains hindered by high evidentiary burdens. This paper critiques the limitations of the AAEC standard in digital markets and introduces a new tool; the Digital Market Unconscionability Test (DMUT) to address these gaps. Grounded in Indian contract and competition law, DMUT offers a structured, ex-ante framework to identify and assess contractual abuse based on bargaining asymmetry, data-driven lock-in, and absence of real choice. The paper argues that adopting DMUT would enable the CCI to act pre-emptively, align enforcement with India’s constitutional commitment to economic justice, and better address the realities of digital platform dominance.
World Competition