The Limits of the Study of Economic Evidence by Courts in Antimonopoly Cases: Grounds, Incentives and Constraints

Abstract

Economic forensic examination is a means of achieving a better balance of errors of the first and second kind in law enforcement, but in itself depends on the incentives and capabilities of judges to assess the sufficiency of the grounds for its appointment. The purpose of any forensic examination is to obtain by the court, for the purposes of the administration of justice, special knowledge and information about a particular fact or phenomenon that is beyond the limits of legal science. It is antimonopoly legislation and law enforcement that can most clearly illustrate the fusion of legal and economic disciplines, where legal norms frame economic reality, forming a procedural contour for the court. The Court thus becomes the receiver of the standards of economic science, its approaches and rules. At the same time, it is shown that in reality the courts are faced with a difficult dilemma, on the one hand, compliance with procedural purity and, on the other hand, obtaining the necessary to improve the balance of errors of the first and second kind of economic evidence in terms of market research, determining the position of the economic entity that is the object of law enforcement, as well as the qualification of actions with the use of relevant theory of harm. The assessment of economic evidence by the courts should be based on a competent independent expert assessment and proceed from the categories of necessity and sufficiency. A set of imperfect substitutes for the assessment by the court of economic evidence on the merits is indicated. The article offers simple and practical approaches to the investigation by courts of economic facts and circumstances in order to make a correct, complete and reasoned decision on the antimonopoly case.