Updated guidance regarding the use of arbitration and case selection criteria

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The Antitrust Division is authorized to use alternative dispute resolution techniques, including arbitration, by the Administrative Dispute Resolution Act of 1990 (‘‘ADR Act’’), Pub. L. No. 101–552, 104 Stat. 2736–48. Attorney General Order OBD 1160.1, ‘‘Promoting the Broader Appropriate Use of Alternative Dispute Resolution Techniques,’’ (April 6, 1995) requires the Antitrust Division to give careful consideration to the use of alternative means of dispute resolution, including by providing Division attorneys with policy guidance on the use of Alternative Dispute Resolution techniques and by developing case selection criteria for using ADR in appropriate cases. The Antitrust Division previously issued guidance on the appropriate use of ADR techniques. See Fed. Reg. Vol. 61, No. 136 at 36896 et seq. This document updates and supplements the previous guidance, focusing on the Division’s use of arbitration. It reflects the Division’s experience using arbitration for the first time in United States v. Novelis Inc. and Aleris Corporation, to streamline the adjudication of a dispositive issue in a merger challenge.