Tacitcal Dilatory Practice in Litigation: Evidence from EC Merger Proceedings

Abstract

The economic analysis of delay in legal procedures has received considerable attention in the past. Most of these works focus on the determinants of delay in litigation but very little analysis has been dedicated to examining tactical delay caused by the parties to the litigation. This paper offers an empirical example to fill some of this gap by analyzing strategic delay in pre-trial administrative litigation. The paper shows that in European merger litigation parties may decide to tactically challenge discovery attempts, which causes a delay that is strategically used to gain more time to settle the case and to avoid a lengthy in-depth investigation, similar to the prediction of Miceli’s (1999) theoretical model. This type of delay can be beneficial to merging parties and to society as well.