Into the abyss of standard-setting : an analysis of procedural and substantive guarantees within the International Organization for Standardization (ISO)

Abstract

Continuous innovation and a growing consumer demand for better and safer products has led to an increase of transnational technical standard-setting in recent years. The World Trade Organization (WTO) exercises a high level of deference towards international standards, requiring their use. However, practice shows that several international standards are adopted through opaque and exclusionary processes. In line with this observation, in its recent US – Tuna II ruling, the Appellate Body adopted a more critical approach regarding international standards and the processes that lead to their adoption. Against this backdrop, this paper focuses on an analysis of the properties and mechanics of international standard-setting processes within the International Organization for Standardization (ISO), discussing procedural and substantive guarantees regarding transparency, openness, deliberation and participation. As the WTO becomes the de facto arbiter of the legitimacy of international standards, much-needed institutional reform in international standard-setting is bound to occur, in line with emerging demands for a more inclusive global legal order.