The role of judicial review in developing evidentiary standards: The example of market analysis in Russian competition law enforcement

• Published in: International review of law and economics 2019-06, Vol.58, p.101-114
• Main Authors: Avdasheva, Svetlana, Golovanova, Svetlana, Katsoulacos, Yannis
• Format: Article
• Language: English
• Subjects: Competition law enforcement; Evidentiary standards; Judicial review; Russia
• ISSN: 0144-8188; 1873-6394
• DOI: 10.1016/j.irle.2019.03.003

•Under administrative law enforcement, judicial review may contribute to the improvement of evidentiary standards even if judges are non-specialized.•Empirical analysis of Russian competition enforcement supports the hypothesis that outcomes of judicial review (annulment vs. non-annulment) influence the probability of applying market analysis in further investigations.•Mandatory requirements for economic analysis under investigation of competition law violation promote application of economics through judicial review. Despite the fact that judicial review is an important part of competition law enforcement under the administrative system, in which courts decide on claims to annul infringement decisions made by competition authorities, its role in the development of evidentiary standards of economic analysis is understudied. This paper attempts to fill this gap by analyzing the impact of judicial review on the application of market analysis in competition investigations by the Russian competition authority during 2008–2015. Although the guidelines for the assessment of competition are mandatory for many types of anticompetitive conducts and they require application of the Hypothetical Monopolist Test to delineate antitrust market, competition authority does not always do that. We test hypotheses on the impact of legal requirements, experience of application, and the outcomes of the judicial review on the probability to present either an informal market analysis or market delineation using the Hypothetical Monopolist Test in a particular decision. We find that positive outcomes of the judicial review of infringement decisions significantly increase the probability of undertaking a particular analysis in future investigations. The pressure of judicial review under the presence of mandatory standards of evidence is an important determinant of the development of evidentiary standards in competition law.