Monday, March 25, 2013
Posted by D. Daniel Sokol
Stephen Kinsella (Sidley Austin) tells us to Hurry Up and Wait. ABSTRACT: In this issue we have a range of articles and perspectives on how interim measures can work in antitrust proceedings. I would like briefly to look at the simple fundamental question of whether the European Commission should be making more use of the powers it has in this field.
The debate is undoubtedly timely in Europe but we have also seen recently in the United States a clearer articulation of reasons for hesitating to act at all in high technology markets because of the risk that excessive intervention might discourage innovation. Incoming FTC Commissioner Wright spelled out this "error cost" approach in a speech in Beijing on February 23, 2012 that is well worth reading. While the overall thrust of the argument runs against intervention there is also recognition of the dangers of inactivity.
However, while regulators may have the luxury of engaging in such an analysis in reaching their "final" decision, there are cases where there may well be a need to act more promptly. And while it may seem counter-intuitive to some, it is precisely in those fast moving markets that some interim intervention may be needed because of the risk that by the time the case is finally resolved there may have been irreparable harm to the market.