Balance and Standardization: Implications for Competition and Antitrust Analysis

62 Pages Posted: 24 Jun 2022 Last revised: 18 Aug 2022

See all articles by Justus Baron

Justus Baron

Northwestern University - Center on Law, Business, and Economics

Jorge L. Contreras

University of Utah - S.J. Quinney College of Law

Pierre Larouche

Université de Montréal; Center on Regulation in Europe (CERRE)

Date Written: June 21, 2022

Abstract

Most technical standards development organizations (SDOs) have adopted internal policies embodying “due process” criteria such as openness, balance of interests, consensus decision making, and appeals. Unlike other aspects of SDO governance, relatively little scholarly research has considered the history, scope, and interpretation of SDO balance requirements. Likewise, existing case law and agency guidance offer little assistance in understanding precisely how these balance principles translate into specific antitrust requirements that apply to standards development. Given the absence of specific guidance on the meaning and implications of balance requirements for SDOs under the antitrust laws, it is necessary to review the development of the laws, regulations, and institutional norms that have shaped balance requirements and their application by different SDOs more generally. A series of recent events and disputes, however, has focused attention on this understudied area, particularly as it pertains to policies concerning intellectual property rights (IPRs). In this article, we provide an extensive survey of the evolution of SDO balance requirements. First, we describe the origins and evolution of balance requirements at the international level, leading to their inclusion in WTO and ISO/IEC instruments. We next describe how balance requirements went from a feature of SDOs to an element of rule of reason analysis under U.S. antitrust law, finding their way into related statutes as well. We then chart the parallel path of balance requirements in the EU, from national SDO features to components of EU standardization policy and eventually factors in EU competition law analysis. We conclude by exploring the different notions of balance that have evolved and their application to antitrust analysis.

Keywords: standards, balance, A-119, due process, antitrust

JEL Classification: L15, K21, K23, N70

Suggested Citation

Baron, Justus and Contreras, Jorge L. and Larouche, Pierre, Balance and Standardization: Implications for Competition and Antitrust Analysis (June 21, 2022). 84 Antitrust L.J. 425 (2022), University of Utah College of Law Research Paper No. 502, Available at SSRN: https://ssrn.com/abstract=4142754 or http://dx.doi.org/10.2139/ssrn.4142754

Justus Baron

Northwestern University - Center on Law, Business, and Economics ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

HOME PAGE: http://justusbaron.org/

Jorge L. Contreras (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

Pierre Larouche

Université de Montréal ( email )

Montreal, Quebec H3T 1B9
Canada

Center on Regulation in Europe (CERRE) ( email )

Rue de l'Industrie 42
Brussels, 1040
Belgium

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