Balance Requirements for Standards Development Organizations: A Historical, Legal and Institutional Assessment

Balance Requirements for Standards Development Organizations: A Historical, Legal and Institutional Assessment

 

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)

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. These requirements arise from numerous sources including antitrust law, international trade law, public procurement requirements and institutional norms. Yet balance criteria lack a generally-accepted definition and the manner in which they are implemented varies, sometimes dramatically, among SDOs. Recently, there has been a renewed interest in the principle that SDOs should ensure a balance of interests among their stakeholders, including in the development of intellectual property rights policies. This article explores the origins and meaning of the balance requirement in the U.S. and EU, and identifies distinct legal, administrative and institutional modalities in which balance requirements are imposed, as well as existing antitrust and competition law requirements surrounding SDO balance.