[odf-discuss] factors for the MOOXML NBs to consider

[marbux]

On Jan 14, 2008 6:24 PM, Christian Einfeldt <einfeldt at gmail.com> wrote:

> Hi,
>
> This is very serious news for any National Board weighing whether to adopt
> MOOXML as a standard at the NBM in Geneva in late Feb.  How could any NB
> possibly consider adopting a "standard" that is the subject of an anti-trust
> inquiry?
>
> http://yro.slashdot.org/article.pl?sid=08/01/14/1719237
>
> World Trade Organization Committee on Technical Barriers to Trade:

Decision

The following principles and procedures should be observed, when
international standards, guides and recommendations (as mentioned under
Articles 2, 5 and Annex 3 of the TBT Agreement for the preparation of
mandatory technical regulations, conformity assessment procedures and
voluntary standards) are elaborated, to ensure transparency, openness,
impartiality and consensus, effectiveness and relevance, coherence, and to
address the concerns of developing countries.

...

10. In order to serve the interests of the WTO membership in facilitating
international trade and preventing unnecessary trade barriers, international
standards need to be relevant and to *effectively respond to regulatory* and
market *needs*, as well as scientific and technological developments in
various countries. *They should not distort the global market, have adverse
effects on fair competition*, or stifle innovation and technological
development. In addition, they should not give preference to the
characteristics or requirements of specific countries or regions when
different needs or interests exist in other countries or regions. ...

11. Accordingly, it is important that international standardizing bodies:

   - Take account of relevant* regulatory* or market *needs*, *as
   feasible and appropriate*, as well as scientific and technological
   developments in the elaboration of standards; ...


Decisions and Recommendations Adopted by the Committee Since 1 January 1995
(May 23, 2002), <
http://docsonline.wto.org/imrd/directdoc.asp?DDFDocuments/t/G/TBT/1R8.doc>

The reference to "regulatory needs" is most likely a reference to antitrust
and other fair competition law, from which the relevant  portions of the TBT
were originally drawn. However, it could also be read as referring to the
WTO dispute resolution process, or to both.

The prohibition against anti-competitive effects in standards is a
restatement of TBT Article 2 section 2.2, which provides in relevant part:

Members shall ensure that technical regulations are not *prepared,
adopted*or applied with a view to or
*with the effect of* creating unnecessary obstacles to international trade.
...

Agreement on Technical Barriers to Trade (annotated version), <
http://www.wto.org/english/res_e/booksp_e/analytic_index_e/tbt_01_e.htm#article2>.


There is enormous overlapping jurisdiction between national standardization
body responsibilities and those of antitrust regulators. There is a pretty
fair argument that JTC 1 should put DIS-29500 on ice until the antitrust
proceeding is concluded, in order to avoid the possibility of inconsistent
decisions. The NBs are actually required by the TBT to consider the
potential anticompetitive effects of draft standards, but that requirement
is routinely ignored.

Today's action by DG Competition may also impact the pending decision in U.S.
v. Microsoft whether to lift the injunction. It requires, inter alia, that
Microsoft disclose the APIs for Microsoft Office so that competitors apps'
may interoperate. So I wouldn't be surprised to see the state attorneys
general raising this issue.

Best regards,

Marbux
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