Factors of Decision-Making Process in Appeals of Antitrust Cases

Russian antitrust law does not have a long history. In the US the antimonopoly legislation began in 1890, whereas in Russia it was only in 1991, when the first antitrust law came into force. Nowadays the Federal Antitrust Service in Russia has too wide a range of responsibilities, compared to foreign antitrust services, while the way it operates could not be called perfect (e.g. due to its employee incentive programme). This is why it is not a rare case, when the FAS’ decision is being appealed in the court. On this stage, in the first-instance court, it is crucial to understand the reason why the court satisfies or rejects the claim. The aim of this paper is to identify the factors, which influence the decision of the judge in the first-instance court, when considering the appeal of the FAS’ decision. The database of the Supreme Arbitration Court of the Russian Federation was used, where decisions from 2008 to 2012 were collected and analysed. The following results have been obtained. The judge is more likely to satisfy the claim, if a company provides the expert analysis of the case. The more experienced is the judge, the higher is the likelihood that they would satisfy the claim, which is indicative of the fact that an inexperienced judge, on the contrary, tends to reject the case, as they have no intention of confronting the FAS. If the FAS is experienced, it is more likely that the case will be rejected, which supports the idea that the experienced FAS, acting as a defendant, will actively try to convince the judge to settle a claim in favour of the FAS. However, in case both the judge and the FAS are experienced, there is a higher probability of the further appeal of the company to the superior authority. It is therefore logical to continue the practice of applying economic analysis and to develop the better standards of proof for antimonopoly cases in the Russian Federation.