Interim Measures in Antitrust Investigations: An Economic Discussion (OECD note)
Organisation for Economic Co-operation and Development, 2022
After a period of dormancy, interim measures – tools for granting accelerated relief to plaintiffs in antitrust investigations – are getting fresh attention from US and European competition enforcement agencies. Largely eschewed in the past because of fears of false positives – the risk of forbidding conduct that will ultimately be found legal – interim measures are back in the spotlight because of a corresponding concern about false negatives – the risk of allowing anticompetitive conduct to continue during an investigation. In June 2022, the Organisation for Economic Co-operation and Development (OECD) convened a roundtable to discuss principles and best practices informing the use of interim measures.
Analysis Group Vice President Juliette Caminade contributed an analysis of interim measure use from an economic point of view. In her paper, “Interim Measures in Antitrust Investigations: An Economic Discussion,” Dr. Caminade presented a simplified economic model of interim measure use and outlined some unintuitive insights that follow from it – for instance, that decisions about whether to impose an interim measure depend not on the size of the harms but on their asymmetry relative to one another. She also explained the benefits of an interim measure regime – principally, that it reduces overall irreparable harm. Finally, Dr. Caminade showed how the model can be modified to work in practice and discussed the use of interim measures in the digital economy.