ICT Standards Bodies And International Trade: What Role For The WTO?

Abstract

Standardization of information and communication technologies (ICT) has become essential for the global economic activity. ICT standards provide for coordination between devices, interfaces, and networks; they support technical infrastructure, bolster e-commerce and rule digital markets. ICT standards also have a profound effect on global trade regulation since they serve both as enablers and barriers for transboundary commercial transactions. Because ICT standards are generally produced by the private sector, their trade-restrictive effects have so far largely managed to escape the purview of the WTO. However, due to their growing normative consequences, the status quo of ICT standards and ICT standards bodies in multilateral trade cannot be maintained any longer. This Article argues that the WTO has powerful tools to address trade-restrictive effects of ICT standards, at the very least by giving a normative account to institutional characteristics of ICT standards bodies, but that these tools are not effectively used by Members. Conversely, the current application of the TBT instruments privileges powerful economic actors, expanding the gap between the developed and developing countries. A new, rule-based approach is required to re-establish the WTO’s relevance in standard setting and address power imbalances brought by technological convergence.

Note: Reprinted from Journal of World Trade, Volume 56, Issue 3, (2022), 429-452, with permission of Kluwer Law International.

Keywords: ICT standards, TBT Agreement, TBT Committee Decision, TBT Code of Good Practice, technical standardization

JEL Classification: K23, K33, L38, L50