Technology Standard-Setting Under the Lens of Global Administrative Law: Accountability, Participation and Transparency of Standard-Setting Organizations

摘要

The role of transnational non-governmental bodies in international standardization has often been in the limelight of recent academic discussions. While standards developed by Standard-Setting Organizations (SSOs) are typically non-binding, they can nevertheless acquire an obligatory character, either by virtue of the force given to them by domestic regulation or another organization such as the WTO, or by obtaining significant market power. Such metamorphosed standards, especially when developed in hybrid or private fora, are frequently accused of lacking legitimacy and accountability. In particular, these concerns are relevant for the technology sector, characterized by expertise-driven decision-making and the symbiosis of public and private stakeholders. This paper sheds light on the mechanics of technical standard-setting by analyzing the working procedures of the public, hybrid and private SSOs leading in telecommunications and ICT standardization, namely the International Telecommunications Union (ITU), the European Telecommunications Standards Institute (ETSI) and the Institute of Electrical and Electronics Engineers (IEEE). It further suggests that despite the fundamental difference in the institutional nature of their forums, standards formulated by all three organizations constitute a collective action and fall within the scope of global administrative law. Ultimately, this paper attempts to reveal the principles, which could serve as administrative tools for scrutinizing the indirect powers of the SSOs, and to provide a preliminary comparative assessment of the examined procedures with regard to the identified principles.