ICT Standards Bodies and International Trade: What Role For The WTO?

Standardization of information and communication technologies (ICT) has become essential for the global economic activity. ICT standards provide for coordination between devices, interfaces, and networks; they support technical infrastructure, bolster e-commerce and rule digital markets. ICT standards also have a profound effect on global trade regulation since they serve both as enablers and barriers for transboundary commercial transactions. Because ICT standards are generally produced by the private sector, their trade-restrictive effects have so far largely managed to escape the purview of the World Trade Organization (WTO). However, due to their growing normative consequences, the status quo of ICT standards and ICT standards bodies in multilateral trade cannot be maintained any longer. This Article argues that the WTO has powerful tools to address trade-restrictive effects of ICT standards, at the very least by giving a normative account to institutional characteristics of ICT standards bodies, but that these tools are not effectively used by Members. Conversely, the current application of the Technical Barriers to Trade (TBT) instruments privileges powerful economic actors, expanding the gap between the developed and developing countries. A new, rule-based approach is required to re-establish the WTO's relevance in standard setting and address power imbalances brought by technological convergence.