DOJ Antitrust Division Uses Novel Arbitration Approach To Resolve Merger Challenge

The Antitrust Division of the Department of Justice (DOJ) recently broke new ground by invoking its authority under the Alternative Dispute Resolution Act of 1996 (ADRA) to use binding arbitration to resolve a dispositive issue in its Clayton Act Section 7 challenge to the proposed acquisition of Aleris Corporation by Novelis Inc. While the DOJ has in the past included arbitration clauses in consent decrees to resolve disputes over compliance with the terms of a settlement,¹ this marks the first time it has used arbitration as an alternative to settlement or litigation to resolve a merger challenge or conduct case. The DOJ's decision to use arbitration in this matter, together with an explanatory filing and a speech by Makan Delrahim, the Assistant Attorney General in charge of the Antitrust Division, may signal that the DOJ is serious about exploring arbitration as an enforcement tool, at least where the contours of the dispute are clear and there is an identifiable,