USING ECONOMIC EXPERTS EFFECTIVELY BEFORE COURTS AND TRIBUNALS

1. USING ECONOMIC EXPERTS EFFECTIVELY BEFORE COURTS AND TRIBUNALS St Martin Conference, Brno, 11-12 November 2010 • Derek Ridyard, RBB Economics, London • derek.ridyard@rbbecon.com

2. DIFFERENT DECISION-MAKERS: KEY DISTINCTIONS Economic experts have to adapt approach to a variety of different decision-making bodies: • Specialist competition agencies • In-house economics processing ability (e.g. CET) • Expertise in competition law • Specialist competition courts and tribunals • Little or no ability to process evidence • General courts • No specialism in economics or in competition law • But direct access to decision-maker through court process The challenge is the same in all cases – to communicate rigorous economic arguments and evidence to influence the decision-making process

3. TOOLS AVAILABLE TO GENERAL COURTS AND TRIBUNALS Various tools are available to courts to overcome their lack of independent processing power, including: • Written expert reports • Enforced dialogue between opposing experts: • Agreed statements of agreement/disagreement • “hot tub” processes • Court assessors and expert tribunal members • Cross-examination • Depends on ability of experts to communicate effectively, and of counsel to identify key issues • But capable of synthesising opposing views

4. WHAT WORKS AND WHAT DOESN’T • The General Court • Airtours, Tetra/Sidel: GC heard economic arguments and helped to develop enduring framework for coordinated effects analysis • Tomra: complete failure of GC to engage on economics – why? • Ryanair/AerLingus: detailed assessment of evidence, but extremely limited ability of GC to address the technical empirical analysis • Irish High Court and the BIDS Judgment • Court appointed independent assessor to advise on economic expert evidence • But still failed to spot that 25% industry capacity reduction and per unit levy on post-rationalistation output might restrict competition in beef processing • UK’s CAT in Albion Water case • Used expert “hot tubs” and cross-examination to discriminate between opposing views on economic analysis • Oslo City Court and SAS Predation case • Court used to expert members and lively oral procedures to overturn specialist competition authority decision and fine

5. LESSONS/CONCLUSIONS? • Economic experts have to find ways to communicate technical evidence to non-specialist audience – no way around this requirement • No single model dominates – each has its potential weakness: • Agency: distance between in-house experts and decision-making process can cause dislocation • Specialist court: familiarity with issues can prevent full scrutiny and lead to unhealthy short-cuts on economic evidence • General court: risk of failure to bridge the gap in expertise • Successful models are those that recognise and deal with their inherent deficiencies

6. Locations and contact • London Brussels • The Connection Bastion Tower198 High Holborn Place du Champ de Mars 5 London WC1V 7BD B–1050 Brussels Telephone +44 20 7421 2410 Telephone: +32 2 792 0000 Email: london@rbbecon.com Email: brussels@rbbecon.com • The Hague Melbourne • Lange Houtstraat 37-39 Rialto South Tower, Level 272511 CV  Den Haag 525 Collins StreetThe Netherlands Melbourne VIC 3000 Telephone: +31 70 302 3060 Telephone: +61 3 9935 2800Email: thehague@rbbecon.com Email: melbourne@rbbecon.com • Johannesburg • Augusta House, Inanda Greens54 Wierda Road WestSandton, 2196, JohannesburgTelephone: +27 11 783 1949Email: johannesburg@rbbecon.com