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. 2 DIFFERENT DECISION-MAKERS: KEY DISTINCTIONS Economic experts have to adapt approach to a variety of different decision- making bodies: 1.Specialist competition agencies In-house economics processing ability (e.g. CET) Expertise in competition law 2.Specialist competition courts and tribunals Little or no ability to process evidence 3.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. 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. 4 WHAT WORKS AND WHAT DOESNT 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/Aer Lingus: 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 UKs 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. 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

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