Developing countries and the World Customs Organization: demand for GAL grows

From the always excellent Intellectual Property Watch site, we get this interesting little vignette: the World Customs Organization has disbanded its working group on intellectual property enforcement standards after a number of developing country members complained that "the group’s work on standard-setting might be used as a means of enlarging the obligations imposed on countries by the WTO TRIPS Agreement" (according to the WCO Policy Commission). Brazil and Argentina, for example, had circulated in October 2008 a document entitled "Ensuring transparency and a legitimate, member-driven process in the SECURE Working Group" (available here, p. 14), which included a complaint that documents were developed without sufficient public participation. These concerns have clearly been brought to a head with the discontinuation of the working group.

A new body has been proposed that will focus more heavily on technology transfer and capacity building. IP Watch also reports, however, that this new body is causing concerns among the same members, primarily because, even if the substance of the agenda looks more developing-country friendly, the same issues relating to procedure - in particular transparency, voice and accountability - have not been addressed.

This illustrates two points nicely: firstly, that developing countries are very much alive to the "administrative" nature of standard-setting bodies, and to the fact that their activities can have real normative implications in terms of international obligations; and secondly, that they are increasingly turning to GAL-type demands as a means of ensuring that their voices are, and will continue to be, heard.

ISO standardizes pasta cooking times

It has been a bit slow on here of late; apologies for that. To kick things off again, some good news for those dismayed by setback to the transnational standardization process represented by the sad news that the EU was to repeal its laws banning the sale overly-bendy bananas (and some 25 other types of fruit and vegetables inflicted with some aesthetic deformity). To reassure us that the global standardization community remains as productive and worthwhile as ever, the International Organization for Standardization has proudly presented ISO 7304-2:2008:

A new ISO standard offers the ingredient of objectivity to the delicate debate on the cooking of pasta which is so dependent on subjective taste: what is nice and firm for one is undercooked for the other, too this or too that…

Now, ISO 7304-2:2008... describes a test method for laboratories to determine a minimum of cooking time for pasta.

This International Standard specifies a method for assessing, by sensory analysis, the quality of cooked alimentary pasta in the form of long, solid strands (e.g. spaghetti) or short, hollow strands (e.g. macaroni) produced from durum wheat semolina, expressed in terms of the starch release, liveliness and firmness characteristics (i.e. texture) of the pasta. It does not apply to pasta in the form of small strands usually consumed in soups.

Gone are the days, then, of throwing bits of linguine at the wall; sighs of relief all round, I should think...

Shame about the soup, though.

The G-20 statement from the Washington Summit

As expected, not much in the way of significant progress was made at last weekend's meeting of the G-20 Head's of State in Washington DC. At least, none that can be discerned from the joint declaration issued at the end of the summit. Again, however, it is worth stressing that GAL mechanisms do play a prominent role in the rhetoric; increasingly, it seems accurate to state that one of the key questions in reforming the institutions of global governance is over which administrative law rules and principles should be applied in each context, not whether administrative law constraints are applicable at all. This can be taken as evidence of the emergence of a generalised "culture" of administrative law within global regulatory governance - which, as I have suggested in some detail elsewhere, should be viewed as one of the crucial elements of the "emergence" of GAL. Here are the key excerpts from the summit declaration:

We commit to implementing policies consistent with the following common principles for reform.

- Strengthening Transparency and Accountability: We will strengthen financial market transparency, including by enhancing required disclosure on complex financial products and ensuring complete and accurate disclosure by firms of their financial conditions. Incentives should be aligned to avoid excessive risk-taking.

- Enhancing Sound Regulation: We pledge to strengthen our regulatory regimes, prudential oversight, and risk management, and ensure that all financial markets, products and participants are regulated or subject to oversight, as appropriate to their circumstances. We will exercise strong oversight over credit rating agencies, consistent with the agreed and strengthened international code of conduct. We will also make regulatory regimes more effective over the economic cycle, while ensuring that regulation is efficient, does not stifle innovation, and encourages expanded trade in financial products and services. We commit to transparent assessments of our national regulatory systems.

- Promoting Integrity in Financial Markets: We commit to protect the integrity of the world's financial markets by bolstering investor and consumer protection, avoiding conflicts of interest, preventing illegal market manipulation, fraudulent activities and abuse, and protecting against illicit finance risks arising from non-cooperative jurisdictions. We will also promote information sharing, including with respect to jurisdictions that have yet to commit to international standards with respect to bank secrecy and transparency.

- Reinforcing International Cooperation: We call upon our national and regional regulators to formulate their regulations and other measures in a consistent manner. Regulators should enhance their coordination and cooperation across all segments of financial markets, including with respect to cross-border capital flows. Regulators and other relevant authorities as a matter of priority should strengthen cooperation on crisis prevention, management, and resolution.

- Reforming International Financial Institutions: We are committed to advancing the reform of the Bretton Woods Institutions so that they can more adequately reflect changing economic weights in the world economy in order to increase their legitimacy and effectiveness. In this respect, emerging and developing economies, including the poorest countries, should have greater voice and representation. The Financial Stability Forum (FSF) must expand urgently to a broader membership of emerging economies, and other major standard setting bodies should promptly review their membership. The IMF, in collaboration with the expanded FSF and other bodies, should work to better identify vulnerabilities, anticipate potential stresses, and act swiftly to play a key role in crisis response.

Both more global administration, then, and more global administrative law. Each paragraph here contains clear evidence of the emerging culture of administrative-law-as-regulatory-common-sense that I have referred to previously: commitments to strengthen accountability, oversight, information-sharing and - perhaps most strikingly, as it is the only point at which the rhetoric seems to go beyond the technocratic governance logic that otherwise is clearly dominant - the participation of even the poorest countries in formulating international standards, are all clear indicators of this shift. Talk, however, although clearly important, remains relatively cheap; and action is unlikely to be particularly rapidly forthcoming. Deadlines for taking initial actions have been set for the end of March 2009, with the likelihood of a further meeting just afterwards. For the next six months at least, then, it seems unlikely in the extreme that a radically reformed global governance structure will influence the manner in which the financial crisis plays out.

IBM demands GAL at the ISO: Fallout from the OOXML affair

I posted a number of months ago, in April of this year, on the controversy that arose within the International Organization for Standardization around its fast-track procedure for approving Microsoft's Office Open XML (OOXML) standard, and in particular over whether that company had been able to exert undue influence over the procedures of ISO. From today's New York Times, we learn that IBM - obviously one of Microsoft's biggest competitors - has announced (as a direct result of the OOXML affair) that it will "[r]eview and take necessary actions concerning its membership in standards organizations", in terms of its new corporate policy aimed at ensuring that technical standards are adopted as the result of a transparent and fair process.

The press release, entitled "To Encourage Improved Tech Standards Quality and Transparency, and Promote Equal Participation of Growth Markets in Globally Integrated Economy", makes plain the relevance of this move to the broader field of global administrative law:

The tenets of IBM's new policy are to:

- Begin or end participation in standards bodies based on the quality and openness of their processes, membership rules, and intellectual property policies.
- Encourage emerging and developed economies to both adopt open global standards and to participate in the creation of those standards.
- Advance governance rules within standards bodies that ensure technology decisions, votes, and dispute resolutions are made fairly by independent participants, protected from undue influence.
- Collaborate with standards bodies and developer communities to ensure that open software interoperability standards are freely available and implementable.
- Help drive the creation of clear, simple and consistent intellectual property policies for standards organizations, thereby enabling standards developers and implementers to make informed technical and business decisions.

It will be interesting to see how this plays out. On one hand, it seems clear that ISO already views its commitment to transparency and due process as one of the fundamental principles of the ISO system - see, for example, the Code of Ethics of the Organization, which provides, inter alia, that ISO Members are committed to "ensuring fair and responsive application of the principles of due process, transparency, openness, impartiality and voluntary nature of standardization". On the other hand, the controversy over the OOXML standard suggests that this might not be functioning flawlessly; and IBM's move is a timely reminder of how powerful private actors - including multinational corporations - can themselves be major players in increasing demand for the establishment of effective administrative law mechanisms within the institutions of global governance.

Chambers to take case against BOA to High Court

Like him or loathe him, it's great news for GAL: the BBC is reporting that Dwain Chambers has initiated proceedings before the High Court in England against the life ban imposed on him by the British Olympic Association (see my earlier post for more detail), arguing that a life ban for a first offence is illegal under the WADA Anti-Doping Code, which provides only for a two year suspension (with a life ban for a second offence). This will furnish us with an interesting insight into whether the standard-setting of a hybrid public-private global administrative body can be upheld in court as superior to those of a national administrative body (a private body in the case of the BOA, but other national Olympic associations - such as, for example, in Italy - are fully public bodies).

What makes this now particularly interesting is that Chambers has recently begun to cooperate fully with UK anti-doping authorities, providing them with a letter from Balco supplier Victor Conte detailing his precise drugs regime, and how he managed to evade the testers for so long. Whether the BOA will argue that this proves that his first time being caught was not his "first offence", or whether instead they will take it as an opportunity to soften their stance as a reward for "good behaviour", remains to be seen. In any event, we'll be keeping a close eye on this one...

ISO controversy over Microsoft OOXML standard

From Aaron Shaw's Weblog, we learn that Microsoft has, it would appear, won the lengthy battle to have its Open Office XML format designated as "standard" by the ISO, which has in effect reversed a vote it took in September 2007 against such a course of action. New York Times has a (very basic) story here; Shaw's blog deals with it in considerably more critical detail here and here.

The New York Times piece does not, in its passing mention of Microsoft's "intense lobbying campaign" and the "pressure" applied by the company on ISO members, do justice in any way to the scale of the controversy surrounding this decision. The Chair of the Norwegian standardisation body, Standard Norge, wrote to the ISO asking for the "yes" vote of the Norwegian delegation to be suspended, as the decision did "not reflect the view of the vast majority of the Norwegian committee, 80% of which was against changing Norway’s vote from No with comments to Yes". (More detail and links on the Norwegian element of the controversy can be found here). Further, Jomar Silva, a Brazilian delegate (one of the countries that still voted against) has posted his own account of what went on, and how the vote was manipulated in favour of Microsoft.

These obviously raise serious GAL issues in terms of the decision-making processes and procedures at the International Organisation for Standardisation, particularly with reference to the rules and mechanisms that it has, as a private body charged with what is in effect a public (standard setting) regulatory function, established in order to protect itself from the risk of regulatory capture by powerful private interests. The global administrative law of the ISO is something that requires careful research (and, indeed, is receiving just that from some scholars already); after this controversy, one suspects that whatever protections against capture are in place, they might not be sufficient.

**UPDATE** It's official.