Barriers to Entry: On Evidence in Competition Law Arbitration

By Alexandra K. Theobald

Arbitrating competition law claims poses unique evidentiary challenges, but may nevertheless be advantageous from a confidentiality perspective. This article analyzes who is likely to possess relevant documents and information related to competition law claims, and considers how parties might obtain such evidence in arbitration. This is contrasted to mechanisms that would potentially be available in court litigation. While most relevant evidence will likely either be publicly available or held by one of the parties to a dispute, certain evidence may be held by third parties. Disclosure from parties in an arbitration may be had under the arbitral rules or by operation of local law. Non-party discovery is severely restricted, but may be available in limited circumstances. Although obtaining evidence in arbitration may be more difficult, preserving the confidentiality of sensitive information may be easier. This article discusses issues related to obtaining and enforcing confidentiality protections in connection with competition law arbitration. The goal of this article is to identify strategic considerations for parties considering arbitration of competition law claims.

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