Disciplining standard-setting: Which approach to choose (if any)

In the world of continuous globalization, standards play a crucial role in transnational economic development. Being the drivers of harmonization and innovation, standards do not only facilitate production and exchange in goods and services, but also carry significant policy implications and create value for society. Against this background, the processes of standards development deserve special attention. The interests of various actors, together with a sheer abundance of standards development fora and a scarce knowledge and understanding of their procedures, renders standard-setting a rather unexplored area in legal scholarship, especially when it comes to the field of ICT and telecommunications. This paper seeks to take a first step into procedural analysis of international standard-setting by shedding light on the concept of ‘due process’ applicable to the formulation and adoption of standards within formal Standards Development Organizations and informal consortia. It attempts to examine different approaches to due process, namely those adopted by WTO law, competition law and global administrative law. This paper suggests that, whereas the first two approaches strive to ensure that standards do not constitute unnecessary trade barriers and that standardization activities do not become a vehicle of collusion, global administrative law also addresses the governance of standard-setting groups and organizations and thence offers a more holistic approach to international standardization, but lacks enforce-ability; it further questions whether increased procedural scrutiny will be able to adequately respond to the challenges of modern standardization, or whether a different approach is desirable.