Discovery and Evidence in Transnational Antitrust Cases: Current Framework and the Way Forward

Abstract

This paper identifies and analyses the means of accessing and collecting foreign-based evidence in transnational antitrust cases. It makes an original contribution to the existing scholarship by critically addressing the available mechanisms of judicial cooperation, the possibility of reliance on domestic discovery in transnational context, as well as the existing instruments allowing for cooperation between antitrust agencies. It identifies the shortcomings of the current regulatory framework and points out to the existing good practices in those jurisdictions which provide their antitrust agencies with more leeway in sharing confidential information with foreign counterparts.

Keywords: Transnational litigation, international judicial assistance, antitrust, access to evidence, discovery, extraterritorial, letters rogatory, letters of request, Hague Evidence Convention, inter-agency cooperation, confidential information, MLATs, Multilateral Legal Assistance Treaties, IAEAA

JEL Classification: K10, K20, K21, K33, K40, K41, K42, K49, L40