MARKET INTELLIGENCE IN COMMERCIAL DISPUTES: EXAMPLES IN THE BIOPHARMACEUTICAL INDUSTRY

Commercial disputes under international arbitration between multinational firms often require assessing the impact of commercial strategy, planning and execution. In the biopharmaceutical industry, these disputes often centre on failed co-development, co-marketing, and co-promotion agreements, typically as a result of one party asserting that the other has not performed according to the agreement. In this article, we outline how the building blocks of market intelligence can be used to assist in the evaluation of such claims.

Grounded in the theories and applied principles of marketing science, decision sciences and econometrics, market intelligence provides a rational basis to understand strategic choices and their consequences. Typically, there are choices available to a strategist to define the market opportunity, identify the competitive set, determine the target populations, develop the marketing mix (including pricing, promotional efforts and messaging), and allocate resources. All of these choices and decisions can have an impact on commercial performance. Commercial experience is an important factor in these decisions; but relying on an empirical, market-driven foundation of research, analysis, description and prediction provided by market intelligence provides a scientific basis to formulate forward-looking strategy. Just as market intelligence can be important to inform such strategic questions, it can also play a useful role in assessing the appropriateness of strategic decisions in hindsight, as may be required in the case of disputes arising from performance under a contract.

Apr-Jun 2013 issue

CRA International