Depreciating evidence in administrative adjudication:  Rules on the sequence to present evidences

Андрей Евгеньевич Шаститко; Светлана Борисовна Авдашева

doi:10.21638/spbu05.2018.401

Authors

Андрей Евгеньевич Шаститко Russian Academy of National Economy and Public Administration, 82-1, Vernadskogo, Moscow, 119571, Russian Federation, Moscow Lomonosov State University, 1-46, Leninskiye Gory, Moscow, 119991, Russian Federatoion https://orcid.org/0000-0002-6713-069X
Светлана Борисовна Авдашева National Research University Higher School of Economics, 20, Myasnitskaya ul., Moscow, 101000, Russian Federation https://orcid.org/0000-0002-0896-9217

DOI:

https://doi.org/10.21638/spbu05.2018.401

Abstract

The late choice of the type of alleged infringement in administrative investigations, when company (alleged infringer) presents evidence first and then responsible agency decides on the content of infringement on the basis of evidence produced by company has significant incentive effect. This rule demotivates alleged infringers to present evidence under the procedure of administrative inspection in time and as complete as possible. In addition, incentives to provide evidence are limited if the agency has the opportunity to select among different types of alleged infringement and to use evidence presented by company in its favor as evidence of a certain type of alleged infringement. Time sequencing of decisions when the choice of the type of infringement is made just after agency collects evidence from company inevitably results in decisionsof infringement, which company then appeals in the court. The experience of Russian antitrust investigations — with two indicative illustrations (Novolipetsky metallurgical plant case and the case with largest Russian retailers specialized in computers and home electronics) shows the importance for the company of being suspected in certain infringement to decide on the amount of evidence. Incentives to provide evidence are studied through the lens of all-pay auction framework to explaining the effects of procedural rules in administrative enforcement that is inquisitorial in nature, in contrast to adversarial ones. It is shown that prosecutorial bias or asymmetric burden of proof is not necessary to suppress the incentives of the target of investigation to produce evidence.

Keywords:

administrative enforcement, investigation, prosecution, adjudication, evidence

Downloads

Download data is not yet available.

References

References in Latin Alphabet

Aidis R., Adachi Y. Russia: Firm entry and survival barriers. Economic Systems, 2007, vol. 31, no. 4, pp. 391–411.

Amann E., LeiningerW. Asymmetric All-Pay Auctions with Incomplete Information: the Two-Payer Case 14. Games and Economic Behavior, 1996, pp. 1–18.

Asimow M. Five models of administrative adjudication. The American Journal of Comparative Law, 2015, vol. 63, no. 1, pp. 3–32.

Avdasheva S., Shastitko A. Alleged Infringement: The Time of Announcement Does Matter. Economic Policy, 2015, no. 1, pp. 72–91. (In Russian).

Avdasheva S., Tsytsulina D. The Effects of M&As in Highly Concentrated Domestic vis-à-vis Export Markets: By the Example of Russian Metal Industries. Research in International Business and Finance, 2015, vol. 34, pp. 368–382.

Avdasheva S., Golovanova S., Katsoulacos Y. The Impact of Performance Measurement on the Selection of Enforcement Targets by Competition Authorities: The Russian Experience in an International Context. Public Performance & Management Review, 2018, forthcoming.

Baye, Michael, Dan Kovenock and Casper de Vries “Comparative Analysis of Litigation Systems: An Auction‐Theoretic Approach” (2005) 115, The Economic Journal 583-601.

Deng Z. Public Enforcement of Antitrust Law in China: Perspective of Procedural Fairness. Competition law enforcement in the BRICS and in developing countries. Springer, Cham, 2016, pp. 135–148.

Garoupa, Nano and Matteo Rizzolli. 2012 “Wrongful Conviction Do Lower Deterrence”, 168, Journal of Institutional and Theoretical Economics 224–31.

Ianis G., Numerova A. A Reform of Russian Competition Law: It’s a Long Way from Brussels to Moscow. Journal of European Competition Law and Practice, 2012, no. 3, pp. 293–239.

Hugh G., Garoupa N. Optimal Deterrence with Legal Defense Expenditures.Economic Inquiry, 2002, vol. 40, pp. 366–379.

Jenny F. The Institutional Design of Competition Authorities: Debates and Trends. Competition law enforcement in the BRICS and in developing countries. Springer, Cham, 2016, pp. 1–57.

Kaplow L. The value of accuracy in adjudication: An economic analysis. The Journal of Legal Studies, 1994, no. 23(S1), pp. 307–401.

Kaplow L. Information and the Aim of Adjudication: Truth or Consequences? Stanford Law Review, 2015, vol. 67, pp. 1303–1371.

Katsoulacos Y., Ulph D. Legal uncertainty, competition law enforcement procedures and optimal penalties. European Journal of Law and Economics, 2016, no. 41(2), pp. 255–282.

Murphy K., Tyler T., Curtis A. Nurturing regulatory compliance: Is procedural justice effective when people question the legitimacy of the law? Regulationand governance, 2009, vol. 3, no. 1, pp. 1–26.

Neven D. Competition economics and antitrust in Europe. Economic Policy, 2006, vol. 21, no. 48, pp. 742–791.

Polinsky A., ShavellS. The Economic Theory of Public Enforcement of Law. Journal of Economic Literature, 2000, vol. 38, pp. 45–76.

Posner R. A Comment: Responding to Gordon Tullock. Research in Law and Policy Studies ,1988, no. 2, p. 29.

Priest G., Klein B. The selection of disputes for litigation. Journal of Legal Studies, 1984, vol. 13, no. 1, pp. 1–55.

Rizzolli M., Stanca L. Judicial Errors and Crime Deterrence: Theory and Experimental Evidence. Journal of Law and Economics, 2012, vol. 55, no. 2, pp. 311–338.

Rizzolli M., Saraceno M. Better that Ten Guilty Persons Escape: Punishment Costs Explain the Standard of Evidence. Public Choic, 2013, no. 155, pp. 395–411.

Sandhu J. The European Commission Leniency Policy: a Success? European Law Review, 2007, vol. 28, pp. 148–157.

Schinkel M. Forensic economics in competition law enforcement. Journal of Competition Law and Economics, 2007, vol. 4, no. 1, pp. 1–30.

Tullock G. On the Efficient Organization of Trials. Kyklos, 1975, vol. 28, no. 4, pp. 745–762.

Tullock, G. Defending the Napoleonic Code over the Common Law. Research in Law and Policy Studies, 1988, no. 2, pp. 3–27.

Wils W. Combination of the Investigative and Prosecutorial Function and the Adjudicative Function in EC Antitrust Enforcement: A Legal and Economic Analysis. World Competition, 2004, vol. 27, no. 2, pp. 201–224.