Is expert evidence permitted in competition litigation, and, if so, how is it used? Is the expert appointed by the court or the parties and what duties do they owe?

Competition Litigation

Belgium Small Flag Belgium

Expert evidence is permitted in competition damages claims. Expert reports can be provided by party-appointed or court-appointed experts.

Belgian courts are reluctant to give much weight to expert evidence given by an expert appointed by one of the parties, except in cases where the other parties do not submit any evidence to contradict the findings of such expert.

The courts have the power to appoint an expert to give evidence. The expert will then have to investigate within the terms determined by the court, and give the court his technical opinion. This expert is independent of the parties, but must hear the parties and allow them to comment on his investigation. In practice, the courts rarely depart from the conclusions arrived at by court-appointed experts on accounting, economic or technical issues, and then only if there are serious reasons for doing so, such as obvious technical mistakes or a violation of the parties’ right to be heard.

Brazil Small Flag Brazil

Parties can request (and the judge can order on his/her own initiative) a wide range of means of proof, including the use of experts. Under the Civil Procedure Code, expert witnesses will present report on their findings, and respond to specific inquiries presented by the parties and by the court.

China Small Flag China

  1. For competition litigation in China, the parties may ask the courts to call one or two individuals with relevant expertise (“Individuals with Expertise”) to appear in court to explain relevant professional issues. However, the opinions presented by Individuals with Expertise during the court session will be deemed the statements made by the parties who engage such individuals.
  2. In addition, the PRC laws also allow the parties to apply the court to appoint professional institutions or professionals (“Court-Appointed Professionals”) to prepare a market survey or economic analysis report (“Survey or Report”) on the professional issues. Subject to the consent of the court, the parties may negotiate the particular institutions or professionals. Failing to do so, the court will designate the professional institutions or professionals. The Survey or Report will be reviewed by the court with reference to the rules applicable to appraisal conclusion. The Survey or Report may be deemed as having evidentiary value, if there are no contrary evidence or reasons.
  3. There are no explicit rules regarding the duties owned by the Court-Appointed Professionals, but they may be held to owe the same obligations as the appraisers. Pursuant to the PRC laws, the appraisers are obligated to (1) respect science and abide by professional ethics, (2) keep confidential the secrets disclosed in the case, (3) issue the appraisal conclusion in a timely manner, and (4) appear in court to announce the appraisal conclusion and answer questions related to the appraisal [5].

[5] - See Art. 8 of the Interim Regulations on Judicial Appraisal of the People’s Court.

Cyprus Small Flag Cyprus

Yes, expert evidence is permitted in competition litigation in either oral and/or written form, by any of the parties to the action. For example, an expert witness may be summoned by a party to attend Court for the purposes of testifying, giving evidence and/or producing documents such as reports that they have prepared. Expert witnesses are subject to cross-examination as any other witness would be in relation to their professional opinion and evidence.

Expert evidence can also be submitted into evidence in written form by a party in accordance with the Laws of Evidence. The Court acting on its own initiative can also appoint experts to produce reports although this is not common practice.

The appointed experts must be impartial and independent, and any conflict of interest or potential conflict of interest should be disclosed to the opposing party and failure to do so may erode the value of the expert evidence before the Court. Typically, expert witnesses like health professionals and surveyors, among others, produce specialised reports with their findings on the disputed matter of the action and if these reports have been written before the hearing stage they must be disclosed to the other party during the stage of discovery and inspection of the parties’ documents which will eventually be used as evidence.

Egypt Small Flag Egypt

In civil and commercial matters, expert witness is generally permitted in litigation disputes under Egyptian Evidence Law. A party may appoint its own expert to provide an expert report to the court. Alternatively, either of the parties may demand the appointment of an expert or the Court may decide at its own discretion to appoint an expert.

In the event where an expert is appointed by the Court, the Court shall issue a preliminary judgment ordering the appointment of an expert from within the list of experts admitted to the Economic Courts. The judgment shall include: 1) the mission and the scope of work of the expert, 2) the time limit for the expert to deposit his report, 3) the expert fees and the party who shall pay the expert fees.

The Court Clerk shall then notify the Experts Department for the appointment of a competent expert, who shall review the case file and obtain a copy from the preliminary judgment. The expert shall set a hearing date by summoning the parties to attend. The number of hearings before the expert may vary depending on the complexity of the case.

After having completed his mission, the expert will then submit its report to the Court which will include his opinion and conclusions.

The Court will consider the expert report however; the Court will have a discretionary power in appreciating its content and may cross-examine the expert witness and allow his cross-examination by the parties.

France Small Flag France

Each party is allowed to provide expert evidence, whether legal or economic. Like any other evidence, it is submitted to the adversarial principle in order to be admitted and must therefore be provided to the other party who can respond to it. Typically, in competition damages claim, the Parties submit economic reports aiming at quantifying the alleged damage (see above the answers to Questions 4 and 17).

Furthermore, the court can decide, at its own initiative or following a request from the parties, to appoint an expert (article 232 of the civil procedure code). The expert will generally be appointed to assess the amount of the claimed damage. The parties can respond to the expert’s findings. The court is not bound by the expert’s findings (article 246 of the civil procedure code).

In addition, article L. 462-3 of the FCC provides for a special consultation process whereby a court may consult the FCA regarding alleged anticompetitive practices raised before it. The FCA can issue an opinion only after a hearing attended by all the parties, unless the FCA already has information on the alleged practices based on a previous investigation it has conducted. The FCA's opinion is then provided to the parties and to the court. The FCA’s opinion is only published once the court has rendered its judgment. The FCA’s opinion is non-binding.

Germany Small Flag Germany

German civil procedure generally permits invoking expert evidence. Especially in competition litigation, the parties and the court often rely on experts, in particular with regard to the occurrence of a loss, the causal nexus, quantum and the passing-on defence. The ZPO contains provisions on expert evidence in section 402 et seq. Unlike in other jurisdictions, an “expert” within the meaning of the ZPO is only a court-appointed expert. In cartel damage litigation, the parties often submit individual expert opinions by their own experts to substantiate their arguments. These expert opinions are considered a substantiated party submission, ie they fall under the same procedural rules as any other submission or pleading by the parties.

Experts within the meaning of section 402 et seq ZPO are appointed by the court in consultation with the parties. Therefore, the expert needs to be impartial and independent from the parties. He is obligated to act diligently and to apply the required duty of care whilst not being restricted by the party-experts’ methodologies or findings. The ZPO considers the expert as a regular means of evidence, ie the expert and its report are subject to the general evidentiary rules. The parties can challenge the expert’s findings both with the help of submissions and during an evidentiary hearing. It is then upon the court to finally assess the evidence. In practice, the courts tend to follow the neutral expert rather than any of the party experts unless it can be shown that its report is fundamentally flawed.

Hong Kong Small Flag Hong Kong

Expert evidence is permitted in both public and private competition litigation in Hong Kong. The manner in which expert evidence is adduced and used follows that in civil proceedings. Leave must be obtained from the court before expert evidence can be adduced. The Competition Tribunal may refuse leave for adducing or relying on unnecessary expert reports. After expert reports have been served, the parties’ respective experts will be directed to communicate with each other and produce a joint report specifying matters agreed and matters not agreed and the reasons for any non-agreement.

Experts will be called to give evidence and be cross-examined as expert witnesses at trial. The current President of the Competition Tribunal has not ruled out the possibility of “hot-tubbing” expert witnesses at trial – that is calling expert witnesses to give evidence at trial and be cross-examined concurrently. As at the time of writing, the Competition Tribunal has had a public competition law enforcement trial involving economic experts giving evidence in sequence, and not through “hot-tubbing”.

Experts are engaged by the party calling them and not appointed by the court. However, experts owe a general duty to the court, which overrides any obligation to the person from whom the expert has received instructions. As such, expert reports are addressed to the court.

In the expert report, the expert must declare that he/she (1) has read the code of conduct for expert witnesses and agrees to be bound by it, (2) understands the duty to the court, and (3) has complied with and will continue to comply with that duty. Such duties include the duty to help the Court impartially and independently on matters relevant to the expert’s area of expertise and to exercise his/her independent, professional judgment in relation to communicating with the other parties’ experts and producing a joint expert report.

Israel Small Flag Israel

In a civil proceeding, and in particular in a claim based on violation of the Competition Law, a party wishing to prove a matter of expertise is required to rely on an expert opinion. The counterparty may submit a counter-opinion, and has the right to investigate the expert of the other party.

In practice, the submission of an expert opinion in a claim relating to the laws of competition is a common practice. Both the plaintiffs and the defendants tend to support their claims with an economic opinion given by an expert, usually an economist in the area of competition, and they attach the opinion at the beginning of the proceeding, upon submission of the statements of claim and defence. In addition, the parties can file a supplement opinion following the counter-opinion submitted by the opposing party.

The court is authorized to appoint an expert on its behalf, which is not one of the experts, relied on by one of the parties. In addition, the court may, with the consent of the parties, appoint an expert on its behalf, and then the opinions submitted by the parties will not be admissible as evidence, but the litigants may investigate the expert or refer clarification questions regarding his opinion. In this case, the obligations of the expert are equivalent to every witness obligations.

Japan Small Flag Japan

Expert report

In competition litigation related to a price-fixing cartel or bid-rigging, a party sometimes submits an expert report to prove the amount of damage suffered. The expert in these sorts of cases is privately retained by the party. Given the wide discretion in determining the amount of damage, the court has not been faced with the necessity of relying on a specific economic methodology to quantify the amount of damage, although economic analysis of the amount of damage is becoming more common (See Question 17).

Expert testimony and technical advisers

In addition, there is the system of expert testimony (Article 212 of the CCP) and the procedure to hear an explanation from a technical adviser based on the adviser’s expert knowledge (Article 92-2 of the CCP). Although the technical adviser system was introduced in 2003, it has not been used frequently in practice.

An expert is appointed by the court at the request of a party to the litigation. A technical adviser, in contrast, is appointed by the court after hearing the opinions of the parties to the litigation.

Experts assume the obligation to provide an expert opinion in good faith according to the dictates of conscience. Technical advisers must perform their services faithfully in accordance with their professional duties. A technical adviser will be dismissed if he/she violates the foregoing obligation or is determined to have engaged in any conduct that is not suitable as a technical adviser.

The Netherlands Small Flag The Netherlands

Generally, parties in civil law cases may submit evidence from their own party-expert, and/or the court may appoint an independent expert (article 194 DCCP). As for the court appointed expert, it is at the court’s discretion whether it deems such an appointment necessary for its decision on the case. It is also possible to summon an expert as witness in the proceedings (article 194 DCCP). The court will decide on the evidentiary value of a party or court appointed expert’s testimony or report.

In practice, in competition damages cases, the parties often rely on (written) expert evidence, in particular (economic) reports on the quantification of damages or for substantiation of the pass on defence.

Philippines Small Flag Philippines

The Rules of Court (which would apply in a competition damages claim) allow the presentation of expert witnesses in Court. Expert witnesses may express their opinion on matters requiring special knowledge, skill, experience, or training.[29] These expert witnesses are appointed by the parties.

[29] - Rules of Court, Rule 140, Section 49.

Poland Small Flag Poland

There are no specific provisions governing the use of experts in competition damages cases, thus the general rules of the Polish civil procedure apply.
In matters requiring special expertise, the court may, having considered the motions of the parties as to the number and selection of experts, appoint experts from the official list of court expert witnesses, or request an expert report from a scientific or specialised institution. The ultimate assessment of such evidence remains entirely within the court’s discretion. The court may appoint an expert witness ex officio or at a party’s request. In any case, expert witnesses are bound by impartiality obligation.

Under Polish civil procedure there are no party-appointed expert witnesses in civil court proceedings yet. Any document produced by such “party’s” experts are not recognised as an expert opinion but as a party’s statement. Nevertheless, in practice often parties to the dispute submit private experts’ opinions to support their claims and arguments.

Portugal Small Flag Portugal

Expert evidence is also permitted in competition litigation and, pursuant to the general rules that are also applicable in this context, it can be requested by the parties or ordered by the court. The expert evidence may be produced by a single expert or a panel of experts, with a limit of three experts. In case the expert evidence is to be produced by only one expert, that expert is chosen by the court, although the parties may suggest to the court potential candidates to act as experts. In case of the production of evidence by a panel of experts, each party appoints one expert and the third member of the panel is chosen by the court.

Argentina Small Flag Argentina

Yes, expert evidence is permitted in competition litigation. The expert will be an independent expert appointed by the court and he or she will have the appropriate qualifications to establish the damages, for example, accountants, economists, engineers, as may be applicable. The expert’s duties will be determined by the court after hearing the parties.

Parties can also appoint its own expert as a technical consultant, who will issue a report as well. This report can be used to challenge the report of the court’s expert.

Sweden Small Flag Sweden

Swedish courts may, at the request of one of the parties, appoint experts, e.g. economists to establish violations and prove damage. The courts may also, at the request of a party, request that the Competition Authority calculates the damage, but the Competition Authority has a right to refuse to provide such assistance.

However, the most common alternative is that the parties use their own economic experts. If more than one party introduces expert witnesses, they are either heard on their own or jointly, the latter being a process known as ‘hot tubbing’.

A court appointed expert may not have any conflict of interest towards any of the parties. If a person has agreed to be appointed by the court, he/she may not subsequently withdraw from the assignment without valid cause. A court appointed expert has the same duty to testify as a witness, but it not required to divulge any trade secrets. A court appointed expert shall submit a written statement prior to the hearing. A party appointed expert is only required to do so if the other party requests so. A court appointed expert is first questioned by the court, and then by the parties whereas with party appointed experts, the party invoking the expert starts the examination.

Turkey Small Flag Turkey

Expert evidence is permitted in competition damages claims. In the Turkish legal system, the court may appoint an expert/expert panel to the case. As per Civil Procedure Law No. 6100, parties may also obtain private technical opinions from third persons.

Expert reports obtained from court-appointed experts are considered discretionary evidence. In other words, judges are not bound by the expert report, and they will consider the report at their discretion. The private technical opinions obtained from persons chosen by the parties are considered as that party’s supporting statements.

Experts appointed by the court are obliged to fulfil their duty objectively and in a timely manner, as well as to keep every document provided to them confidential. Experts appointed by the court are not permitted to make any explanations, comments, or analyses on anything outside of the issues that require technical analysis.

Australia Small Flag Australia

Expert evidence is permitted in competition litigation, subject to the ordinary restrictions. Expert evidence is only permitted where the evidence:

  • relates to subject matter that is beyond common knowledge;
  • is based on a field of expertise; and
  • the expert has specialised knowledge based on training, study or experience.

The expert must explain the basis for his or her reasoning and must only provide testimony within their relevant field of expertise. Expert evidence cannot be used to answer the ultimate issue in the case.

Appointment of experts

Parties can call their own experts at trial provided that an expert report was first provided to all other parties. The parties can also apply to the court to have an expert appointed.

Duties

An expert witness has an overriding duty to assist the court by providing relevant and impartial evidence within his or her area of expertise. An expert witness must not mislead the court or act as an advocate for the party retaining the expert. Expert witnesses must read and comply with the Harmonised Witness Code of Conduct and the Federal Court's Expert Evidence Practice Note (GPN-EXPT).

Canada Small Flag Canada

Expert evidence is permitted and represents a crucial element in competition litigation. Both plaintiffs and defendants will typically file extensive expert evidence with respect to liability and damages issues.

Expert evidence may be used to address various stages in the class action process, such as common issues of harm or loss at certification and causation and damages at trial.

Several elements will be considered in assessing the admissibility of expert evidence, including relevance, necessity in assisting the trier of fact, the expert’s qualifications, and the absence of any exclusionary rule.

Parties retain and instruct experts; however, the expert’s duty to the courts overrides duties to clients: experts must be independent and impartial. The expert has a duty to the courts to give fair, objective, and non-partisan opinion evidence. Before many provincial superior courts, experts must certify that they will provide independent evidence. The Tribunal also requires the expert to sign an acknowledgement of his or her duty to assist the Tribunal impartially.

Italy Small Flag Italy

As in any other ordinary civil proceedings, the court can appoint one or more experts, whose task is to answer specific questions raised by the court on strictly technical issues.

Experts must be independent and impartial and they answer exclusively to the court.

The parties can appoint their own experts, who will interact with the court-appointed expert(s) throughout the technical investigation and reply to their findings.

In competition litigation, usually, experts are appointed to investigate passing-on issues and to determine the quantification of damages suffered by claimants.

Romania Small Flag Romania

Yes. Generally, expert examination may be relied on in order to clarify certain factual circumstances. Experts are particularly instrumental in competition damages cases for the valuation of the prejudice.

Upon request of either party (or even ex officio), the court shall appoint an expert to analyse the matter and draft an expert report; in more complex matters, a panel of three experts may be appointed.

If necessary, the court may request that the expert report be performed by a specialised institute. The court will appoint the expert by random appointment from the official list of professionals qualified to sit as experts in court cases; the list is ordered by areas of professional expertise (e.g., accountancy, engineering, construction, valuation etc.).

Currently, there are no competition damages valuation experts on the list published by the Ministry of Justice. Therefore, the court has the option to appoint an expert in valuation/ economics. Alternatively, the party requesting the expert report may argue that, since no expert on the official list is qualified in the specific field of competition damages claims, a reputed specialist outside of the list should be nominated, which is permissible under the Civil procedure code. Such expert may be either Romanian or foreign.

Aside from the court appointed expert(s), each party may appoint a party expert assisting them in the expert report drafting phase. The party experts may ask questions, raise talking points, provide the court expert with materials and clarifications and, if the case, draft a dissenting expert report.

The expert report phase will be based on the expert objectives proposed by the party requesting this evidence, in the form approved by the court – in essence, these objectives are the questions that the court expert would have to answer. Aside from document examination, the expert report drafting phase may entail prior on-site meetings, asset examination, in order for the expert to be able to form an opinion on the factual aspects of the case.

If the court considers that the expert report requires clarifications or additions or if there is a contradiction between the opinions of the experts, the court, ex officio or upon request of a party, may ask the experts to provide clarifications/ amendments. Also, for well-grounded reasons, the court may decide ex officio or upon the request of either party, that a new expert report is prepared by a different expert.

United Kingdom Small Flag United Kingdom

Expert evidence is permitted with the court’s permission. Experts are appointed by the parties and owe duties to them to e.g. exercise due care and skill, comply with any relevant code of ethics, act independently, and inform the parties of relevant conflicts of interest. However, the experts’ primary duty is to help the court by providing objective, unbiased opinions on matters within their expertise, and the duty to the court overrides any duties to the parties.

Each party will usually appoint its own expert, although it is possible (albeit rare in competition cases) for the court to order a single expert to be jointly instructed. Where the parties have their own experts, they typically exchange expert reports and then meet with the aim of producing a joint statement for the court, detailing the points on which they agree or disagree. Experts are then cross-examined at trial. This can be done separately, or the court may order the parties’ experts to give evidence concurrently in a process known as “hot-tubbing”, whereby the experts are cross-examined by the parties and the judge (or tribunal) simultaneously.

Expert evidence is a feature in virtually all competition litigation cases given the complexity of issues, particularly around the identification of the appropriate counterfactual and issues relating to quantification of damages (including pass-on). Experts from a variety of fields may be engaged, but typically include economists, industry experts and forensic accountants.

Colombia Small Flag Colombia

Regarding both individual and collective actions, as any other claim, it can be supported on expert evidence. As a general rule, the expert is appointed by the interested party which will submit a report of such expert with its claim or response. The other party has two different mechanisms to oppose to such report: (i) it can submit a different expert report or (ii) it can request the expert interrogation. In the second case, the expert might be interrogated not only by the party who request the interrogation but also by the judge.

Additionally, and exceptionally, the judge can, ex officio, order the expert evidence in which case, the expert will be chosen by the judge from a list designed for such purpose.

Regarding expert evidence submitted by the parties, each party will choose the expert guarantying its adequacy (or expertise on the matter) and its impartiality. In principle, the costs that arise from the expert evidence shall be covered by the party who request it, notwithstanding his right to include such cost as part of the expenses that the defeated party shall pay.

United States Small Flag United States

Expert testimony and evidence, particularly from economists, plays a key role in competition litigation. Parties can utilise their own experts, but if they do so they must disclose the identity of any expert witnesses to be used at trial at least 90 days before trial, unless otherwise directed by the court. See Fed R Civ P 26(a)(2). Additionally, the court may appoint any expert of its own choosing. However, the court may only appoint someone who consents to act.

Rule 706(b) of the Federal Rules of Evidence stipulates that the expert: (1) must advise the parties of any findings the expert makes; (2) may be deposed by any party; (3) may be called to testify by the court or any party; and (4) may be cross-examined by any party, including the party that called the expert.

The trial judge is conferred the task ‘of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand’ under Rule 702. Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579 [1993]. The judge thereby serves a ‘gatekeeping’ function and ‘general acceptance’ by the relevant scientific community is not a necessary or dispositive condition to the admissibility of scientific evidence (although it is certainly relevant). Daubert discussed ‘four factors—testing, peer review, error rates, and ’acceptability’ in the relevant scientific community’ which help guide a judge in his or her determination as to whether certain scientific evidence is admissible. Kumho Tire Co v Carmichael, 526 US 137, 137 [1999].

Updated: August 7, 2019