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ANALYSIS: DOJ Turns to ADR, But What Could We Lose?

Sept. 24, 2019, 10:55 AM

The Justice Department announced on Sept. 4 that it has agreed to binding arbitration on the key issue in a current merger case—the market definition. DOJ Antitrust Chief Makan Delrahim said it is part of his drive to improve efficiency in enforcement. But the move may create other problems.

The DOJ can undertake arbitration of enforcement matters under the Administrative Dispute Resolution Act of 1996 (5 U.S.C. § 571 et seq.) and the Antitrust Division’s implementing regulations (61 Fed. Reg. 36,896 (July 15, 1996)). Antitrust practitioners may have overlooked this possibility because it had never happened before. Delrahim...

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