Technical Rules and (Competition between) Legal Systems. Divergence or Convergence in the Standardization Domain?


Over the last few years, some consensus has emerged on the fact that the standardisation models adopted in both the European Union and in the United States have increasingly delegated the private pillar to create and maintain the technical and technological rules. Nevertheless, the two systems still diverge on a number of significant respects, thus reflecting the underlying differences in terms of origins, policy preferences, cultural attitudes, economic and political realities and, more generally, of the legal systems in which the standardization models are embedded.

However, despite an important scholarly attention, a shared consensus on both the definition and the categorization of the topic is to a large extent still missing. Accordingly, the paper first sheds light on the need to properly detect the crucial (legal) features that are necessary to qualify its boundaries, in the different jurisdictions. The analysis then identifies the legal elements that have to be taken into account to release an accurate taxonomy. The distinctions between de iure and de facto standards, between open and closed ones, and the categorization based on the economic effects produced by the standards are scrutinised, underlining the risks of over-simplification and trying to put in the correct perspective the key legal features surrounding the standardisation field.

The paper then discusses the standardisation models implemented in the EU and US, investigating the striking differences in terms of over-arching policies. The hierarchical, public-driven and co-ordinated nature of the EU system (as resulting from the enactment of Regulation (EU) n. 1025/2012 and of Directive 2015/1535/EU) is thus confronted with the highly decentralised and market based approach of the US standards development system (in turn grounded on the National Technology Transfer and Advancement Act of 1995, on the OMB Circular A-119 and on the Standards Development Organization Advancement Act of 2003). The key differences between the EU and US systems concerning their respective operating structures are similarly discussed, highlighting the risks that the processes might be biased (almost) exclusively to support private interests, even within the formal or recognised standardisation bodies.

Lastly, some critical aspects that affect the European and US standardization models are assessed, as the consumers representation, the co-operation between formal and informal structures, and the balance between complying with the legal (internal and external) requirements and the ‘need for speed’ in producing or converging on a standard. In so doing, and to provide responsive standardisation frameworks, it is thus noted that the possibilities of solving some models’ weaknesses have to take into account a marked path dependence, which partially hinders the prospects of change.

Andrea Giannaccari, LUISS Guido Carli

Full paper available here.

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