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Economic Evidence and Procedural Fairness: Lessons from the UK Competition Regime

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Key Points: • UK courts have recently made notable progress in developing a case law defining the, fortunately not immutable, legal requirements for dis-closure sufficient to ensure fair process in investigations by public authorities. • The amount of disclosure required for a fair process is a question of law, but I argue that the answer to the legal question depends heavily on the practical realities of applying economics and using econometrics in cases. • Using examples from recent competition cases, I consider (i) what disclosure is required for a competition authority or court to operate a genuinely fair process, and (ii) the extent to which recent trends in the availability and use of data are changing the extent and nature of the disclosure (at least to advisers) required in competition investigations. • The trend towards greater disclosure in UK competition investigations seems likely to play out in other jurisdictions, within both litigation and competition proceedings because economic analyses on cases are increasingly using empirical evidence developed using ever-bigger data sets. Judicial oversight of competition authorities should support this process.

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