Relaxing whilst doing Competition Law is not an Oxymoron

Expert economic evidence(?) in competition cases

with one comment

On 21 November Concurrences, A&O and MAPP will be holding a worskshop on “Standard of Proof for Economic Evidence” (registration is free and still possible through this website).

The topic is very interesting. I don’t know whether I’ll be able to attend, so I’ll make a point in public here (or rathe repeat what I co-wrote on a piece published here) in relation only to the assessment of economic evidence in judicial proceedings. To me, it’s more appropriate to refer to “economic argument” than to “economic evidence”. Unless the expert is appointed by the Court (off the top of my head I can only remember this being done in Woodpulp) or comes from the Commission (which has the winning hand enjoys a margin of discretion in this regard), I do not see many differences between legal and economic argument put forward by the parties in competition proceedings, and no one would call lawyers´ pleadings “legal expert opinions”.

Certainly, in some cases there will be a hardcore of economic data which is not contested by opponents (be it the Commission, the parties, or complainants), but a great part of the “evidence” will be opinion and based on each one’s assumptions, not strictly evidential. An expert presenting evidence is supposed to act as a translator for the judge on areas on which the latter lacks the appropriate training. However, in real life, expert economic evidence has a “strong tendency” to favor the argumentation of one particular party, and is often contradictory with that presented by other parties.

In the end, economic evidence offered by the parties will be assessed by the European Commission and EU Courts as a friendly (former CFI Judge Huber Legal would call it “sisterly”) statement commanded by the interested party with a view to making its case more palatable to the deciding authority or court. Its value will depend on how persuasive the economist in question can be, just like lawyers and their plaidoiries. In the words of Hubert Legal at the 2006 Fordham conference “[T]he way we proceed is compatible with our Rules of Procedure because [economists] are not pleading under oath; it is only a part of the pleading, like you would have the possibility to ask a member of the board of a company to speak, or your sister or whoever is interested in the case”.

Written by Alfonso Lamadrid

14 November 2012 at 9:00 pm

One Response

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  1. Couldn’t agree more. Legally, evidence means objective (and thus unquestionable) data, while, quite often, when we talk about “economic evidence” in antitrust cases we are rather referring to economic theories or models applied to the case at stake or, in other words, to (much or less convincing) reasoning exercices, with the same value than legal ones.

    Miguel Troncoso Ferrer

    20 November 2012 at 12:03 pm

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