This presentation by Dennis DAVIS (Judge of the High Court and President of the Competition Appeal Court of South Africa) was made during the discussion “Judicial perspectives on competition law” held at the 16th meeting of the OECD Global Forum on Competition on 8 December 2017. More papers and presentations on the topic can be found out at oe.cd/jpcl.

1. Expert Economic Evidence
“(m)ost of the problems with expert evidence arise
because the expert is initially recruited as part of the
team which investigates and advances a party’s
contentions and then has to change roles and seek to
provide the independent expert evidence which the
court is entitled to expect. As Lord Wilberforce, in The
Ikarian Reefer (1993, 2 Lloyds reports 68) stated, “It is
necessary that expert evidence presented to the court
should be and should be seen to be the independent
product of the expert uninfluenced as to form or
content by the exigencies of litigation.” I many cases
the expert, instead of playing the role identified by
Lord Wilberforce, has become … ‘a very effective
weapon in the parties’ arsenal of tactics”.
Lord Woolf

2. Hot Tub procedure in the adversarial
system
The “hot tub” procedure attempts to limit
partisanship, enhance communication and
analysis between the experts and reduce the
time of the trial by narrowing the debate to real
issues, as these are perceived by the experts.

3. The specialist court
Unlike other areas of law, competition law
integrates economic concepts into legal
concepts enshrined in the legislation or in the
underlying theory of harm of the case.
Can general courts thus develop a coherent
jurisprudence?