Although it is not common for the Administrative Council for Economic Defense (CADE) to allow or request expert examination, we are certain (and part from this assumption) that it can be done so, since Law 12.529/2011, known as Brazil’s Antitrust Law (LDC), does not specify what types of evidence can be presented, and determines the subsidiary application of the Brazilian Civil Procedure Code. Parties usually prefer, in order to avoid higher costs, presenting written opinions from those considered able to provide technical clarifications.
If one of the parties requests expert examination, it is the General Superintendence’s role to decide whether it will be allowed or not, based on art. 72 of the LDC; obviously, both the decision to allow or deny it must be properly reasoned, whereas the party may, in case of a denial, have arrangements to make. In the case of allowance, from March 2016 the applicable law is the New Brazilian Civil Procedure Code (NCPC).
Up to this moment, the idea of performing expert examinations was hindered by the amount of steps required, as briefly explained: (i) appointment of an expert; (ii) naming of technical assistants and formulation of some questions to be answered, by the parties; (iii) meeting between the expert and the assistants; (iv) elaboration of one or more expert reports; (v) possibility to questioning the experts in a hearing; etc. (including all possible challenges and appeals). These are arduous steps which are also often hard to understand. After the NCPC, there are two important innovations that might simplify the expert examination process and, therefore, encourage its use.
The first innovation is the possibility of a consensual examination: according to art. 471, “the parties may agree on an expert”. This agreement, in administrative antitrust proceedings, takes place between CADE and the Defendant, be it before the General Superintendence or the Tribunal (as the latter complements the evidence gathered by the former). This agreement depends, on the other hand, on the authority’s separation of its functions, since it acts as both the accusing and the judging party. In this case the authority acts as an accuser, making an agreement with those defending themselves.
The second innovation comes from an adaptation of the common law system and is set forth in paragraphs 2º, 3º and 4º of article 464. The second paragraph establishes that, “the judge, under its own initiative or at the substantiated request of any of the parties, may, instead of an expert examination, determine the use of simplified technical evidence, when the controversial point is not very complex”. The third paragraph establishes that “the simplified evidence will consist only of an inquiry of an expert, made by the judge, on a controversial issue that demands special technical and scientific knowledge”. This “simplified technical evidence” is equal to common law’s “expert opinion/witness”, in which experts, instead of presenting reports, are orally inquired. This is a clear concession to the principle of oral arguments, although a written account of the expert’s inquiry must be provided in the case files.
The first issue shall be how to determine if a controversial point if of higher or lower complexity. Another issue is how to name the expert chosen by the authority, especially because there is no legal provision on indicating technical assistants (who may be present alongside the attorneys when formulating questions to be answered on the expert examination). Inside the antitrust authority’s proceeding, it would be ideal to choose an expert by mutual agreement, which should not present any technical problems. The toughest part is to break a tradition of procedural determinism, which must be mitigated by the authority in order to reach common ground with the defendant.
This change in procedural habits should also mean a change in internal habits. The authority’s internal division – even through a Chinese wall that must separate the accuser from the judge – is the most important among the changes to internal habits.
This article was originally published in Portuguese on the website Jota on February 13, 2016. Available at: http://jota.uol.com.br/duas-importantes-inovacoes-do-novo-cpc-a-respeito-da-pericia-no-processo-no-cade