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00:00 I'm Devesh Patton,

00:02 uh,

00:03 professor at Johns Hopkins,

00:04 and I'm a member

00:05 of the WDR team.

00:07 Uh,

00:09 and it's a great pleasure

00:10 to welcome

00:11 Professor Kingsbury,

00:13 who's the vice dean and the,

00:15 and the Murray and Ida Becker,

00:17 Professor at,

00:18 at,

00:18 of Law

00:19 at NYU.

00:21 Now,

00:22 uh,

00:22 we have to sort of thank,

00:24 uh,

00:25 Vikram Raghavan

00:26 from the bank,

00:27 who had,

00:28 in a conversation several months ago,

00:30 had pointed out

00:31 our

00:32 profound sort of ignorance

00:35 in not sort of understanding how much standard making

00:39 has become part of

00:41 what in legal circles is called soft law

00:44 and related to international sort of administrative law.

00:48 And

00:49 he pointed out,

00:51 uh,

00:52 uh,

00:52 Professor Kingsbury's work

00:54 as someone who's thought about this more deeply

00:57 and

00:58 for longer than anyone else.

01:00 And that is why

01:02 it's a great pleasure

01:04 for us to welcome Professor King

01:07 as part of the WDR 25

01:09 seminar series.

01:11 We welcome and

01:13 sorry,

01:13 sir,

01:13 about this.

01:14 Uh,

01:15 good.

01:15 So,

01:15 so

01:16 I welcome everybody.

01:16 Uh,

01:17 well,

01:17 topic,

01:17 uh,

01:18 standards in law,

01:18 as I'm a lawyer,

01:19 law scholar in NYU,

01:21 and so.

01:22 Uh,

01:23 I'm just trying to bring a few perspectives from

01:26 the side of people working on law,

01:27 regulation,

01:28 governance,

01:28 uh,

01:29 uh,

01:30 mainly international beyond the state,

01:32 but

01:33 with some orientation towards development,

01:34 uh,

01:35 and,

01:36 uh,

01:36 I,

01:38 I think online hope my sometimes co-authoring.

01:39 A close colleague,

01:40 uh,

01:41 at NYU Professor Kevin Davis,

01:42 so,

01:42 uh,

01:43 he,

01:44 he may pop up,

01:44 uh,

01:45 if he's able to navigate the technology,

01:47 uh,

01:47 and,

01:48 uh,

01:48 talk a little bit about some

01:50 ideas he has.

01:51 He works a lot on more development.

01:52 In fact,

01:52 he's in Jamaica right now.

01:54 That's where he's joining from.

01:55 So,

01:55 uh,

01:56 uh,

01:57 so.

01:58 I,

01:58 I,

01:59 my

01:59 idea is to say,

02:01 uh,

02:01 a few things about standards and,

02:03 and compare them to some other things which also have some elements of a regulatory

02:07 effect,

02:08 uh,

02:08 and partly because,

02:10 uh,

02:11 uh,

02:11 somebody who's unfortunately not able to be here today in the last uh due to some

02:15 situation personal,

02:16 but my,

02:16 but,

02:17 uh,

02:17 uh,

02:17 and division.

02:19 Well that's one of the challenges is deciding what is the standard,

02:22 uh,

02:22 how do they work in parallel or overlapping with other,

02:26 other regulatory things,

02:27 and is there any way of differentiating them?

02:29 So it's a little bit to address that,

02:31 I then say it's a little bit about how law,

02:33 particularly international law,

02:35 uh,

02:36 addressed self-addressed the standards that you might

02:38 call the legal regulation of standards.

02:40 Uh,

02:40 and then,

02:41 uh,

02:41 uh,

02:41 a little bit about some of the ways in which it seems to be that standards operate as a,

02:45 as an apparatus of governance,

02:47 um,

02:47 uh,

02:48 and,

02:48 uh,

02:50 particularly international beyond the state reaching interstates,

02:52 and,

02:53 uh,

02:53 then how do we regulate

02:55 that kind of apparatus and here that last

02:57 one is the idea of global administrative law,

02:59 uh,

02:59 but I don't want to take too long to talk because I

03:01 really hope it can be interactive and people can ask their questions,

03:03 make comments,

03:04 uh,

03:04 and use this as a as a setting for that,

03:06 so.

03:07 Uh,

03:08 yeah,

03:08 so that's the agenda,

03:10 and,

03:11 uh,

03:12 that this is not,

03:13 uh,

03:14 what I'm going to talk about,

03:15 but I'm trying to think what,

03:16 why are people talking about standards here in the World Bank,

03:19 uh,

03:19 I mean standards

03:20 in relation to development,

03:22 and part of it is the premise that uh

03:25 that there's a relation between standards and economic growth.

03:28 Uh,

03:28 and the International Standards Organization,

03:30 ISO,

03:30 one of the principal

03:31 standards setting bodies promulgators,

03:34 uh,

03:34 and,

03:34 and,

03:35 and also a kind of endorse or ratifier other people's standards.

03:38 Uh,

03:39 this is,

03:39 uh,

03:40 this paper 2019

03:42 has a lot of the economic mechanisms of how,

03:45 uh,

03:46 standards might produce

03:48 economic growth.

03:48 So,

03:49 uh,

03:49 it's,

03:49 it's a rather a

03:51 There's a slightly cheerleading tone,

03:53 uh,

03:53 this,

03:53 uh,

03:54 and I wanted to start there because of course there's an important point that

03:57 why would it be worth the effort of the cost of engaging in standards,

04:01 making standard implementation,

04:02 etc.

04:03 uh,

04:04 but if there wasn't some overall,

04:06 uh,

04:06 normative objective.

04:07 So,

04:08 and,

04:08 and I assume on the

04:09 economist side.

04:10 At least it tends to be something

04:11 about growth or development maybe sustainability,

04:14 some some suite of things,

04:16 uh,

04:16 but that's the big picture,

04:17 um,

04:17 so,

04:18 uh,

04:18 but of course it's not,

04:19 doesn't always go like that and there's other ways of looking at it,

04:22 uh,

04:22 they're not,

04:23 not negative,

04:23 just different,

04:25 so

04:27 what,

04:27 what do we know about the terms standards,

04:30 uh,

04:31 in,

04:31 in the Bretton Woods institutions,

04:33 well.

04:34 Uh,

04:34 it,

04:35 it that many will already be very familiar with the reviews of standards and codes,

04:38 which was,

04:39 uh,

04:40 uh,

04:40 started I think in 1999,

04:42 uh,

04:42 the World Bank and IMF jointly,

04:44 uh,

04:44 as a

04:45 means for,

04:46 uh,

04:47 encouraging and stimulating over.

04:50 Seeing perhaps occasionally chastising,

04:52 uh,

04:53 countries,

04:53 uh,

04:54 including developing countries in relation mainly to standards to do with,

04:58 uh,

04:59 economic issues,

05:00 financial,

05:00 uh,

05:01 governance.

05:02 So,

05:03 so here the standards is,

05:04 is,

05:04 is put as,

05:05 as the rules of the game.

05:07 Uh,

05:07 for economic and financial policies

05:09 and,

05:09 and,

05:10 and,

05:10 and then they shift quickly.

05:12 This is from the IMFF website just still,

05:13 still there,

05:14 uh,

05:14 to,

05:15 to playing by the rules as,

05:17 as with the standards.

05:18 So

05:19 those kind of standards are pretty,

05:21 uh,

05:22 There's a pretty heavy weight pushing in that direction.

05:25 So there's a kind of compliance expectation

05:27 here and a strong

05:29 idea that whatever is,

05:31 if you do what's in the standards,

05:32 you'll be doing everything better.

05:34 That kind of imagination.

05:35 So that's one sort of view highly prescriptive and

05:37 very much as if you would make rules.

05:38 In fact,

05:39 what they call standards really are often

05:41 highly regulatory instruments like by the

05:43 Basel Committee or the insolvency

05:45 requirements or whatever.

05:46 And some of them were accompanied by efforts to get developing countries

05:49 and emerging economies to reform their laws,

05:51 including on insolvency.

05:52 So,

05:52 so that's the programmatic use of standards in that rather strong,

05:55 uh,

05:56 way.

05:57 Uh,

05:57 here I put it the opposite kind of line,

05:59 which is,

06:00 uh,

06:01 from a,

06:01 uh,

06:02 anthropologist,

06:03 um,

06:04 uh,

06:05 who really,

06:06 uh,

06:07 trying to capture the cultural elements of standards.

06:09 What,

06:09 what are the human relations,

06:11 uh,

06:12 that the shifts in,

06:13 uh,

06:13 practices amongst people in small institutions,

06:15 the big ones,

06:16 uh,

06:17 the cultural shifts which happen when you go into,

06:19 into standards,

06:21 uh.

06:21 And,

06:22 and so,

06:22 so,

06:23 so one can get at this also

06:25 not from the top down.

06:27 It's,

06:27 it's agreed by the IEEE or someone in Geneva or something

06:31 fun,

06:31 that's got to be the standard.

06:33 One can try to understand them from

06:35 in their sort of local origins,

06:37 the local practices,

06:38 uh,

06:38 and especially in the interaction between those two things.

06:40 So I think here's where we see the

06:41 bridging between the idea of governance at a distance

06:44 through standards and sort of local

06:46 practices embodied formulated and standards and

06:48 the sort of gradual what you might call a bottom-up formation.

06:51 And the history of American capitalism has been very much in that second one.

06:54 In fact,

06:55 a lot of local practices which became

06:57 only very slowly nationalized and and made national in the

07:00 US and even now it's not a very complete process.

07:03 And that's one of the reasons that,

07:05 sorry,

07:06 that uh that the people in the uh literature.

07:10 Tim Bra and Matley,

07:11 for example,

07:12 said the Europeans have tended to do better in international

07:14 standard setting processes than the Americans because the US,

07:17 uh,

07:17 uh,

07:18 has had struggled to have a single peak

07:20 national body to represent the US and international

07:22 standardization unlike the Europeans who have a hierarchical

07:25 structure and a heavily national focused structure.

07:28 So oops,

07:30 OK,

07:30 so,

07:30 so,

07:31 so,

07:31 so here's the,

07:31 uh,

07:33 uh,

07:34 what the

07:35 Concept

07:36 note

07:37 has about standards,

07:38 codified solutions

07:39 that are designed for common and repeated use

07:41 and are recognized by

07:43 multiple stakeholders.

07:44 Now I'm sure it's been a huge discussion and struggle of the WGR world as to what

07:48 is going to be met by a standard,

07:50 uh,

07:50 but this is what's said so far,

07:51 uh,

07:52 and

07:53 perhaps this

07:54 is

07:55 a day when people might discuss that a bit more if there's any comments on

07:59 this.

07:59 It's a,

07:59 it's a challenge,

08:00 uh,

08:00 and of course that

08:01 sounds kind of broad,

08:02 codified solutions you could imagine those are technical.

08:06 Operative things without even being written down almost,

08:08 uh,

08:09 or a codification I suppose the idea of writing,

08:11 uh,

08:12 textualization but

08:13 and the idea that they're basically voluntary,

08:15 uh,

08:16 often produced privately,

08:17 but they could become embodied in regulations,

08:20 uh,

08:20 so,

08:21 uh,

08:21 uh,

08:21 that's the,

08:22 that that's the distinction.

08:23 There's a little bit of an implicit

08:25 pathway there also and it's made express in this idea

08:28 that first developer companies seem to not have many standards.

08:30 Uh,

08:31 an absence of them,

08:32 uh,

08:32 then they can adopt other standards from outside and finding they can offer them.

08:36 And then I've added in square brackets well.

08:39 Then you get the dynamic.

08:40 The standards start to compete with other standards

08:42 or companies use them in competition.

08:44 Our players use them,

08:45 industries use them,

08:45 big companies,

08:46 uh,

08:47 when you've got standards,

08:47 you start to defend them or use standards to defend your own position,

08:51 uh,

08:51 lock it in,

08:52 make it harder for others in various ways and all the better if you can

08:55 get it as a patent or some intellectual property

08:57 context,

08:57 and eventually you end up opposing your standards and going around the world,

09:01 cajoling,

09:01 urging,

09:02 uh,

09:02 people to join your enterprise.

09:04 So,

09:06 Uh,

09:06 OK,

09:07 so,

09:07 uh,

09:07 here's the

09:09 Barry,

09:09 thank you for your help me make these things,

09:11 uh,

09:12 I,

09:12 I,

09:12 I wanted to

09:13 go a little broader now and to think,

09:14 well,

09:14 what do standards resemble,

09:16 and here is this is going to strike you as wildly improbable,

09:19 but to me they,

09:20 there's some interesting relations between

09:22 standards and infrastructure.

09:24 Uh,

09:25 and I'll come back to that.

09:26 I realize it's probably not what anyone's thinking of,

09:28 but I think we can

09:29 actually think that often to have infrastructure,

09:31 uh,

09:32 if you think,

09:32 say,

09:33 of,

09:33 uh,

09:35 Belt and Road,

09:35 uh,

09:36 or system of ports and container ships,

09:38 uh,

09:38 place to place,

09:39 uh,

09:40 uh,

09:40 stretching over the world,

09:41 it could be anybody's,

09:42 uh,

09:43 structure.

09:44 There's enormous amount of standardization in there

09:47 which goes also with the tech transfer

09:49 to make it an interoperable and connected system in lots of countries.

09:53 And

09:54 so really a lot of these infrastructures are

09:56 themselves embodiments of standards and projectors of standards.

09:59 And if you're going to have infrastructural development,

10:01 you have also the embrace of standards,

10:03 uh,

10:03 and it kind of,

10:04 so.

10:04 Whoever's influencing the infrastructure

10:07 development is influencing standards.

10:08 So we can think of infrastructure as the embodiment and stantiation of standards,

10:12 and once that's happened,

10:13 they,

10:13 they become built in

10:15 as a sort of installed base and very hard to shift away from.

10:17 So I just wanted to mention that it's part of it.

10:19 I,

10:20 I teach a course on infrastructure and work a lot on this.

10:22 Um,

10:22 and infrastructure has regulatory effects also.

10:25 Um,

10:26 but,

10:26 uh,

10:26 uh,

10:26 otherwise we,

10:27 we,

10:27 I think we expect a lot of comparisons overlaps between standards and law,

10:31 but I think all three of them have these

10:33 features that you get a multiplicity of different systems,

10:35 uh,

10:36 which have to connect up

10:37 different countries' laws,

10:38 different private laws,

10:39 uh,

10:40 regulations within industry.

10:41 Industries,

10:41 say,

10:42 um,

10:42 uh,

10:43 transnational arrangements,

10:44 contractual terms,

10:45 supply chain

10:46 regulatory arrangements,

10:48 all these sort of stretched laws reaching out,

10:50 um,

10:50 but they often have to join up with other ones and come into networks,

10:53 um,

10:54 of laws or regulations in the same kind of way,

10:57 uh,

10:57 as we,

10:58 we,

10:59 we would think of a technical infrastructure joining up gateways from

11:03 one system to another so that they can be interoperable linked or you could

11:06 use them in combination.

11:08 Uh,

11:08 and we can think of standards having to do the same thing.

11:11 That is,

11:11 it's,

11:11 I think it's often very misleading to think of

11:13 a standard or a suite of standards in isolation.

11:16 Uh,

11:17 and one then ends up analyzing that,

11:19 but not seeing that it's completely embedded

11:20 and dependent on all these other things,

11:22 and

11:23 that once you go to embrace one rod,

11:25 you will be then

11:27 triggering other things to arrive.

11:28 That is,

11:29 that will become your installed base.

11:30 You won't be able to just choose any other standard because it

11:32 will have to work sensibly in your economy and your society,

11:35 uh,

11:35 and your industries with

11:37 the ones you've already embraced.

11:38 So I think there's a Quite a pathway

11:41 here and

11:42 if

11:43 if studying law we know that very well if

11:44 you think of common law influencing still how many

11:48 uh

11:49 former British colonies operate

11:51 four elements of their of French law the same

11:53 uh these transmissions last a very long time and have continuing influence and

11:57 I think we can think of standards in some way the same way,

11:59 especially if it gets more of an agenda,

12:01 uh,

12:01 to adopt them.

12:02 OK,

12:03 so.

12:04 Uh,

12:04 that they have also this feature of rationality

12:06 and like commitment at least to that,

12:08 not necessarily in fact,

12:09 and of coherence,

12:10 so they sort of sound a bit like the way we talk about law,

12:12 rule of law,

12:13 uh,

12:14 and they're heavily tied into power,

12:16 I think,

12:16 uh,

12:16 and to me also they connote questions about who's the public for the standards?

12:20 What's the public nest quality?

12:22 Who's it face?

12:23 Who's it transparent towards,

12:24 who should have a voice in it?

12:26 And I think we can ask these same questions about law,

12:28 we already do.

12:29 Uh,

12:30 about infrastructure,

12:31 we sometimes do,

12:32 um,

12:33 and about standards we don't worry much and need to do it more.

12:36 So I think these go together if you're going to

12:38 advocate

12:38 big standardization in lots of places,

12:40 uh,

12:41 these

12:42 things have to be part of what's the account of

12:44 the way in which power is going to operate there,

12:46 whose voice is going to be heard,

12:47 and the kind of publicness elements,

12:48 the reviewability,

12:49 the debate scope to revise all that.

12:52 OK,

12:53 uh,

12:53 so,

12:54 uh,

12:55 here then.

12:56 Uh thinking about a few more things,

12:58 uh,

12:58 which relate,

12:59 uh,

13:00 specifically infrastructure because I'm going to move

13:01 on from infrastructure to to standards.

13:04 Uh,

13:04 this is the

13:05 classical stuff Susan Lee Star,

13:07 uh,

13:09 co-authors,

13:09 uh,

13:10 that,

13:11 that so infrastructure becomes embedded that as you

13:13 start for a while you don't notice it,

13:14 uh,

13:15 it just buries in there,

13:16 uh,

13:16 uh,

13:17 standards are like that,

13:18 uh,

13:18 and,

13:18 and

13:19 infrastructure.

13:19 Often you can straight out see it though,

13:21 it looks

13:22 transparent,

13:23 but,

13:24 uh,

13:25 but you,

13:25 but you see through it rather than observing it.

13:27 And I think standards often are like that really people

13:30 in the industry don't know that's that's,

13:32 that's that that the whole thing is dependent on those things.

13:35 So,

13:35 uh,

13:36 these interesting questions about the region or scope.

13:39 Uh,

13:39 so it's easy to imagine global standards and a lot of the discourse is still

13:43 that sort of has the globalization 1990s

13:45 smoothing and everything over and all that.

13:47 Uh,

13:48 really,

13:48 a lot of standards are very local,

13:49 uh,

13:49 or very,

13:50 uh,

13:51 uh,

13:51 the,

13:52 the way they work is very localized and not to a whole country,

13:54 but it might be one state in India,

13:56 say,

13:56 uh,

13:57 doing the electricity

13:58 arrangements differently from another state.

14:00 So,

14:00 uh,

14:01 and,

14:01 and they become

14:02 this idea of being learned as part of membership that is,

14:05 uh,

14:07 the people in the sector,

14:09 uh,

14:09 working with them just get used to all these standards.

14:11 Uh,

14:12 the insurers know all the steps of ships,

14:14 know all the standards of ship classifications and what's,

14:17 how it's got to be built and the safety things

14:19 and the fire things and the berthing and all that.

14:22 They,

14:22 they just live all that stuff in,

14:23 in almost every

14:25 area

14:26 economic sector is like that.

14:28 Uh,

14:28 there are things which people take for granted and,

14:30 and as the new entrants have to learn it all.

14:33 OK,

14:34 so

14:35 there's also,

14:35 I think the interesting interaction between standards,

14:39 the law standards and facts.

14:41 Uh,

14:42 and,

14:42 and here

14:43 I think it's,

14:44 it,

14:44 we,

14:44 we would often think that

14:46 typically,

14:47 not always,

14:48 but typically certainly international law but or big kind of national laws,

14:52 uh,

14:52 the,

14:52 the idea is to be use fairly abstract language.

14:55 Uh,

14:56 and you,

14:57 you've often reached that point.

14:58 Sometimes you've borrowed from somewhere else,

14:59 some other country,

15:00 you've decided this is a reform,

15:01 we've got to do this,

15:02 but quite often it's,

15:03 it's,

15:03 it's emerged an abstraction from lots of practices.

15:06 But this is how we do accountability.

15:08 This is how we're going to do,

15:09 uh,

15:09 tort liability.

15:10 Uh,

15:10 this is our principle of.

15:12 Uh,

15:13 freedom of speech or whatever in some,

15:14 so you,

15:15 you abstract from lots of experiences and then we announce it as a

15:18 general abstraction.

15:19 Then to make it operational and real needs

15:22 all the specific maybe regulations and administrative rules

15:26 and down to certifications and inspectors from the

15:29 government coming and looking at this or that.

15:31 That's on the legal side

15:32 and the standards side has the same sort of effect.

15:34 It defines what an obligation or a law abstraction really means.

15:39 Uh,

15:39 and so,

15:40 and so we have to understand these,

15:42 uh,

15:44 this,

15:44 this kind of path that the

15:46 abstract big picture law principles are,

15:49 uh,

15:50 only become operational through the specificities of the standards,

15:53 uh,

15:53 and all of that.

15:54 Uh,

15:55 so,

15:55 but the law itself moves along if it's adjudicated,

15:58 a court is involved or,

15:59 or officials,

16:00 they are interpreting the law now in the light of the standards.

16:03 So it's a reflexive arrangement,

16:05 uh,

16:06 and so the law moves because of the standards have moved,

16:08 but the process for the standard-making is different from the law-making process.

16:13 OK,

16:13 so,

16:14 uh,

16:14 and,

16:14 and also I wanted to emphasize this

16:16 point about an installed base that is,

16:19 uh,

16:19 just like infrastructure.

16:20 Once you've got some of it,

16:21 the next ones have to be built on that one.

16:23 You don't just repudiate or ignore sort of you don't

16:26 by mistake,

16:27 but so it's,

16:29 it's wrong to think,

16:30 I think that each is just a free

16:32 choice operation.

16:32 Is this the right standard to adopt?

16:34 Should we import this one and make our own?

16:35 Should we do a regional one or whatever.

16:38 So it's and,

16:39 and,

16:39 uh,

16:40 OK,

16:40 I think that's what I want to take from that.

16:43 Uh,

16:43 one more comparison partly with Kevin Davis,

16:45 we did two books together on indicators,

16:47 indicators and rankings,

16:49 uh,

16:49 Kevin wrote papers about the World Bank's doing business

16:52 indicators.

16:53 I'm not sure I was going to say late demented,

16:55 but,

16:55 uh,

16:55 of course reappearing in some ways,

16:57 uh,

16:57 uh,

16:57 so,

16:58 uh,

16:59 but,

16:59 uh,

17:00 the,

17:01 this question of what's the retation of an indicator to a,

17:03 to a,

17:04 uh,

17:04 to a standard

17:06 that is that it,

17:07 it,

17:08 and

17:09 do they work to somewhat in the same.

17:11 Right,

17:12 so what we try to define indicators,

17:14 uh,

17:15 and,

17:15 and,

17:15 and if you have the slides,

17:17 you see them,

17:17 see our definition there at the top.

17:19 Uh,

17:20 I think I,

17:20 I won't go around that

17:22 much we can talk about,

17:23 we didn't

17:24 negotiated for about 2 years amongst ourselves to produce that definition.

17:28 Uh,

17:28 and,

17:29 but,

17:29 but we also in,

17:30 in the two books we did on this tried

17:32 to compare a little bit indicators the standard setting.

17:35 And I think one of the features of the indicator.

17:39 It is that it's both

17:41 the standard,

17:42 it sets,

17:42 this is what makes a good

17:44 something rather.

17:45 This is what makes a,

17:46 uh,

17:47 a,

17:47 a,

17:47 a,

17:47 a,

17:47 a country on a path to development or this is what uh is,

17:51 is enables efficiently run port.

17:54 What,

17:54 whatever your is in the indicator.

17:56 Uh,

17:56 so,

17:56 so it's both the standard,

17:58 what you,

17:59 what would be the ideal one,

18:00 how to get there,

18:01 but it's also an evaluation.

18:02 It's evaluative of performance towards the standard.

18:05 Uh,

18:06 whereas ordinarily we think of the standard as,

18:08 as,

18:08 as simply the,

18:09 the,

18:09 the prescription,

18:10 what you're able to do in ways we'll know if you're getting there

18:13 and the evaluation is something separate,

18:16 um,

18:16 but that's what we thought when we did this book,

18:18 but the more I reflected on it,

18:20 I'll come to this,

18:21 uh,

18:21 the more I think

18:22 it's also,

18:24 uh,

18:25 we,

18:25 we could really think of standards

18:26 and standardization as being that whole sort of governance suite of,

18:31 of,

18:31 of debating and making the standards.

18:33 Uh,

18:34 getting it made operational in the industry and the,

18:37 uh,

18:38 with the regulators or whatever,

18:39 uh,

18:39 maybe in national law,

18:41 it's

18:42 producing the standard,

18:43 the text,

18:43 uh,

18:44 getting it absorbed and part of the thing,

18:46 but also the whole raft of,

18:48 uh,

18:49 the,

18:49 the bodies which will,

18:51 uh,

18:52 uh,

18:53 certify that someone's complying

18:55 or will be the consultants who advise

18:58 the business or whatever,

18:59 how to comply with the government.

19:01 Uh,

19:01 and then certify,

19:02 yes,

19:02 you've complied,

19:03 give you the label or the stamp or whatever,

19:05 um,

19:06 and that certification is then used in

19:09 further things that might be used by your insurer or by your,

19:11 your financer to say yes,

19:13 this is OK,

19:13 or if you're in a supply chain,

19:15 you're,

19:16 uh,

19:17 of your retail,

19:18 uh,

19:19 or Apple or whatever says yes,

19:21 you've,

19:21 you've complied,

19:22 you've met our standards here.

19:23 So,

19:23 so,

19:24 so you have that whole process of certifying and then you

19:26 have another layer of people who are credit the certifiers.

19:28 And so these accreditation bodies,

19:31 uh,

19:31 who say,

19:31 yes,

19:32 you're qualified to certify,

19:34 uh,

19:34 um,

19:34 they are

19:35 part of the thing and then the auditors,

19:37 uh,

19:37 who go run a check and do various other things are part of it.

19:40 So sometimes the NGOs or whatever.

19:42 So if we see standards as being that whole suite of governance,

19:45 then actually it's,

19:46 it's quite a lot like an indicator,

19:47 I think so.

19:50 OK,

19:51 so here you see our idea indicators are

19:53 a form of knowledge and technology of governance,

19:55 and I think we can say the same thing

19:57 with standards in order to theorize them that way.

20:00 No

20:01 OK,

20:02 so,

20:03 uh,

20:03 I,

20:03 I think I'll I'll skip over a bit of this,

20:05 uh,

20:06 because I want to get on now,

20:07 now if we've

20:09 Reached the point that we've

20:11 Got a body producing standards.

20:13 It could be local,

20:14 national,

20:16 transnational,

20:18 global type peak body like ISOC

20:21 might be private.

20:23 Public private or public,

20:25 uh,

20:25 and,

20:26 and actually there'll be a whole set of different players

20:29 outside as well as inside the body producing the thing.

20:31 So when we've got that,

20:33 what can we then think is the law about how those people should do that?

20:37 So,

20:38 and,

20:38 and nationally,

20:39 there may be requirements of say of transparency of the standard setup,

20:42 uh,

20:42 and there may be requirements that once the standard is produced,

20:46 that it be freely available for everybody,

20:48 uh,

20:48 and especially if it's made part of a national law.

20:51 So some countries that's a requirement of the rule of law of the constitution

20:54 to,

20:54 to make the standard available for free.

20:56 Uh,

20:57 and,

20:57 uh,

20:58 and because it's,

20:59 because it has that regulatory effect,

21:01 uh,

21:01 other,

21:01 but many standard-setting bodies,

21:03 their business model is to charge with standards.

21:05 They have copyright and they,

21:07 you need a license to use the standard.

21:08 You can't even get the text.

21:10 And if,

21:10 if we reach it later on,

21:11 we,

21:11 uh,

21:11 uh,

21:13 uh,

21:14 you want to help me with this,

21:15 it's fished up from the International Atomic Energy Agency,

21:18 the,

21:18 the,

21:18 the,

21:19 uh,

21:19 the price of a whole lot of the different standards for nuclear safety,

21:21 how much you have to pay,

21:22 how many euros for each one if you want to

21:24 know how to actually run a nuclear plant safely.

21:26 So,

21:27 so there's a real tension.

21:28 And that tension is being fought out in some

21:30 countries' national law about making standards freely available,

21:33 and it's being fought out now in the European Union,

21:35 uh,

21:35 when the European Union

21:36 either harmonized standards or uses other standards,

21:39 whether they have to therefore be available free to the public or not,

21:42 that that's being litigated right now and it's tended to

21:44 go in favor of they have to be available.

21:46 So that's,

21:48 I,

21:48 I mentioned that because it's a legal regulation and it's,

21:51 it has serious consequences for the

21:52 standard-setting bodies because their revenue model

21:55 is to charge

21:56 and if they don't have that,

21:57 they really are struggling.

21:58 So,

21:58 uh,

21:59 some of them,

21:59 so,

22:00 OK,

22:00 so there,

22:01 there's that kind of legal regulation.

22:02 There's also regulation in national law,

22:04 uh,

22:04 which could be taught liability for a standard-setting body.

22:07 That is if you set a standard for safety

22:09 of,

22:09 of some,

22:10 say,

22:10 uh,

22:11 say a vehicle.

22:12 Uh,

22:12 and then it crashes and the person is burnt,

22:15 uh,

22:15 and it turns out that that standard was not

22:18 actually going to keep people safe.

22:19 You've done the wrong thing or standard for a medical device or,

22:23 uh,

22:23 if you've done it,

22:24 it's possible to sue the standard-setting body.

22:27 Uh,

22:27 because the,

22:28 the,

22:28 the person who made the mission thing said,

22:30 look,

22:30 I made it according to the standard.

22:32 I complied that they said,

22:33 and,

22:33 and,

22:33 and,

22:34 uh,

22:35 they would then defend themselves by saying,

22:36 look,

22:36 I,

22:37 I complied with the standard.

22:38 And so,

22:39 so the standard then can work both as a sort of safe harbor

22:42 for actually you,

22:43 you,

22:43 you,

22:43 you,

22:43 you harm somebody,

22:45 but my defense is,

22:45 but I follow the standard.

22:47 Uh,

22:47 and,

22:48 and,

22:48 and then they sue the standard-setting body and say

22:51 you shouldn't have made that standard like that,

22:52 um,

22:53 and it was the wrong standard or you didn't listen to the right people,

22:56 or you were captured by the industry and you didn't,

22:59 uh,

23:00 you didn't

23:01 be tough enough.

23:02 Uh,

23:02 so,

23:02 so you've got that kind of tort type,

23:04 uh,

23:04 control of the standard-setting bodies in national law

23:07 and you also have competition law controls.

23:10 That is because the standard can be used

23:11 by the incumbents in an industry to keep out the new entrants.

23:15 Uh,

23:15 and,

23:15 and the big players might all agree a standards

23:18 because they can all comply with it and,

23:19 and,

23:20 and,

23:20 and

23:21 that really dominates the industry that they all stick to that so they

23:24 don't compete on innovation there because they've all locked into the standard.

23:27 So there's in,

23:28 uh,

23:29 countries with uh

23:30 that kind of fairly well-developed competition law and regulators and lawsuits,

23:34 uh,

23:34 competition law,

23:35 antitrust law relate is important

23:37 constraint and factor and standard setting.

23:39 Uh,

23:40 and putting this in reverse,

23:41 if,

23:41 if the bank and other development,

23:44 uh,

23:44 enterprises are going to urge lots of developing countries,

23:46 especially the smaller ones,

23:48 limited

23:49 state capacity.

23:50 To,

23:50 to embrace a lot of standards,

23:52 it probably is also necessary to think what's going to be the tort law

23:55 or what's going to be the competition law,

23:57 which is going to be in which,

23:59 which is going to um

24:02 safeguard the possible risks and abuses here.

24:03 That is,

24:04 I think it's not so clear that it's OK just to push for standards

24:07 without thinking about also the law reform

24:10 and institutional development which are necessary.

24:12 OK,

24:12 so,

24:12 so that's on the national law side,

24:13 but I want to come to the international part now.

24:16 Uh,

24:16 so

24:17 global administrative law.

24:19 Uh,

24:19 this idea,

24:19 and I'm going to be quick here now I'm going to

24:22 stop to open up,

24:24 uh,

24:24 uh,

24:24 is

24:25 so that this is from the World Bank Legal Review in,

24:29 uh,

24:29 2011,

24:30 I think,

24:30 uh,

24:30 when we

24:31 were involved a lot with this question of what will be the global

24:34 administrable standards applying to.

24:37 NDB's,

24:37 IFIs in general,

24:39 uh,

24:39 so,

24:39 uh,

24:40 the,

24:41 the idea of global minister of law is that

24:43 if power is being exercised beyond the state,

24:45 that is not just by the,

24:46 if it's the national government or national constitutional law,

24:49 national minister of law applies.

24:50 You can sue them,

24:51 get judicial review,

24:52 or whatever,

24:53 uh,

24:54 if it's

24:55 an international body or beyond the state,

24:57 that there isn't so clear what are the ways of holding them to account.

25:01 Uh,

25:01 and so global administrative law is a field that we've

25:04 worked on over 20 or so years,

25:05 us and many others,

25:07 which really tries to say,

25:08 well,

25:08 if,

25:08 if someone's got to exercise power which influences people's lives,

25:12 economy,

25:12 society,

25:13 and,

25:13 and the body is doing it

25:15 not just within the state system where it's legally controlled,

25:18 but

25:19 in a transnational way,

25:20 uh,

25:21 then,

25:22 uh,

25:22 what ought to be the principles of transparency,

25:25 uh,

25:26 participation.

25:28 Giving reasons,

25:28 obligation to state reasons,

25:30 uh,

25:31 review mechanisms to challenge what they've done internally or in another body,

25:34 and overall accountability,

25:36 including lawsuits.

25:37 Uh,

25:37 uh,

25:38 government law is about what are the standards and mechanisms which bring to

25:43 transnational bodies,

25:44 including the bank,

25:45 um,

25:45 uh,

25:46 it's some sort of

25:48 Supervision,

25:48 control,

25:49 uh,

25:50 some sort of standards of participation,

25:52 accountability,

25:53 transparency,

25:54 review,

25:54 etc.

25:55 So

25:55 that's,

25:55 that's the big picture of this field.

25:58 The specificity here,

25:59 I think,

25:59 is,

25:59 is the question is how does that apply

26:01 to standard-setting bodies.

26:03 Uh,

26:03 that is the ISOIC for example,

26:06 but also an industry consortium,

26:07 the consortium who developed the USB standard,

26:10 which is a purely private company that consortium,

26:12 uh,

26:13 said this is what it's going to be.

26:14 This is how it's going to get interoperability between all these computer systems

26:17 by everyone doing this,

26:18 the USBA.

26:19 So,

26:20 uh,

26:20 but someone might say,

26:21 well,

26:21 isn't that something not good about that.

26:23 Uh,

26:24 you shouldn't have allowed

26:25 data to flow out through that or you should have

26:28 made clear which,

26:28 which way the thing's flowing or

26:30 you shouldn't have done something.

26:31 So,

26:32 so,

26:32 uh,

26:33 what,

26:33 what's going to be the,

26:34 who should be able to participate in that?

26:35 Uh,

26:36 is it,

26:37 it's a private,

26:38 in that case,

26:38 a private standards setting organization.

26:40 Should only the players in the industry be able to be there?

26:44 Only the existing manufacturers or existing tech companies,

26:47 or

26:48 what about the public?

26:49 Uh,

26:50 what about the,

26:50 the people who aren't there yet and want to join?

26:52 Uh,

26:52 and what if there are patterns?

26:54 Someone has patents on part of it,

26:55 uh,

26:56 uh,

26:56 then what?

26:57 So,

26:57 uh,

26:58 so,

26:58 so even though it's a purely private body,

27:01 but it's totally voluntary in a way,

27:03 the effect is so enormous worldwide in the case of that standard USB.

27:07 Uh,

27:07 that we can ask,

27:08 well,

27:09 what should be the

27:11 rules of who could participate?

27:12 What should be the rules of what they have

27:13 to disclose and give the good working drafts?

27:16 Uh,

27:16 what should be

27:17 the the the obligation of them to state reasons for the things they haven't done?

27:22 Uh,

27:22 so,

27:23 uh,

27:23 and should they be reviewable?

27:26 Uh,

27:26 where,

27:27 so,

27:27 so that's what the governance law enterprise is about.

27:29 So we have a ton to say about that,

27:31 hundreds of papers,

27:32 uh,

27:32 but,

27:33 but,

27:33 but I think

27:34 it's quite typical of,

27:36 of the

27:37 longer term existing bodies like the ISO,

27:40 uh,

27:40 or the IEEE,

27:42 that they have adopted governance law type principles

27:45 that they,

27:46 they have voluntarily done that partly to

27:48 shore up their own legitimacy and influence

27:49 and to reduce complaints and to have a place to channel the complaints towards.

27:54 Uh,

27:54 and I,

27:54 I would should add there,

27:56 and this,

27:56 this,

27:57 we're going to stop that as well as this kind of more abstract dominance law,

28:00 which is partly enforced by regulators and national suits and things,

28:04 uh,

28:04 there's also a kind of meta-regulation of them by the World Trade Organization,

28:07 by the TBT,

28:09 uh,

28:09 committee,

28:09 which says,

28:10 well,

28:11 if you want.

28:12 Countries want to be able to rely on that standard

28:16 and say in our,

28:17 in our national economy,

28:18 uh,

28:19 you have to,

28:20 you have to build the thing this way.

28:21 You can't have asbestos in this kind of thing.

28:23 You have to,

28:24 uh,

28:25 uh,

28:25 have this kind of,

28:26 uh,

28:26 seatbelt system in a car.

28:28 Or this kind of whatever

28:31 hundreds of thousands of standards countries are relying on.

28:34 If you want to rely on an international standard,

28:36 if,

28:36 if it's properly made international standard,

28:39 that's usually a defense against the argument that you're breaching

28:42 fair and free trade rules.

28:44 Uh,

28:44 an importer or exporter from another country

28:47 won't easily be a challenge on the grounds that

28:48 your standard is an unfair imposition on trade.

28:52 But,

28:52 uh,

28:53 the,

28:53 the WTO

28:54 TPT said has a,

28:55 a,

28:56 a stipulation about what would constitute,

28:59 uh,

28:59 a,

28:59 a,

29:00 a properly made international standard for that purpose,

29:03 and that tends to require that the

29:05 body who said it be open to anyone from all of the WTO member states at least,

29:10 uh,

29:10 and,

29:11 and that it operate transparently,

29:12 that doesn't make drafts available and be clear in advance what's going on there.

29:17 Uh,

29:17 and that it,

29:18 um,

29:19 it,

29:19 it tries to reach what they call consensus.

29:22 Uh,

29:22 you've probably talked about this a lot,

29:23 but what's meant by consensus here is a wonderfully

29:27 the IEEE has a nice answer to this is yes,

29:29 we work by consensus,

29:31 and that means that

29:32 at least 75% of people have got to vote for it.

29:34 Uh,

29:35 uh,

29:35 so,

29:35 so,

29:36 but we have to listen to the others.

29:37 Uh,

29:38 so,

29:38 so there's a lot of ways to deal with this,

29:40 but there's a real kind of

29:42 contestation there,

29:43 and,

29:43 uh,

29:44 where bodies might not be complying with that,

29:46 the WTO has been quite reluctant to allow their standard to be accepted,

29:49 uh,

29:50 and,

29:50 and,

29:50 uh,

29:50 tuna labeling or sardines if you study those things.

29:53 OK,

29:54 that I think I should stop there with those

29:56 glimmers of ideas,

29:58 and I'll keep in mind that Kevin is online too and may want it.

30:00 Add things as we go along,

30:01 but I'll give it to you,

30:02 Davisha.

30:04 Uh,

30:04 thank you.

30:04 Uh,

30:05 see,

30:08 I sort of

30:09 see him there.

30:10 So just to sort of introduce him,

30:11 uh,

30:12 Professor Davis is the

30:14 Uh,

30:14 uh,

30:15 a family

30:16 professor of business at NYU School of Law,

30:19 and as he's,

30:21 he's sort of worked a lot with

30:23 Professor Kingsbury.

30:24 Right now,

30:25 I gather he's in

30:26 Jamaica,

30:27 and he's joining us like from there.

30:30 So,

30:30 you're welcome.

30:31 And if you would like to make a few remarks.

30:35 Oh,

30:35 well,

30:36 thank you.

30:36 Um,

30:37 I,

30:38 I'll just be brief.

30:39 I'll say one thing about each part of Benedict's presentation,

30:43 because um,

30:45 I,

30:45 I guess I'm

30:46 very much a lawyer.

30:47 I realized that as I was listening to him,

30:49 so,

30:50 uh,

30:50 once I have a law degree,

30:51 everything seems like,

30:52 uh,

30:53 it raises legal issues.

30:54 Um,

30:56 but on the question of the concept of a standard,

30:59 I hadn't seen the concept note before,

31:02 and I,

31:02 I have to admit the,

31:04 I was surprised by the

31:06 statement that most standards are voluntary,

31:08 um,

31:09 and then sometimes they become mandatory because I guess.

31:13 Uh,

31:13 my reaction was to think that

31:16 A lot of

31:17 these standards that are initially developed in a sort of voluntary bottom-up way

31:22 become mandatory.

31:23 Um,

31:25 Sometimes because they're incorporated in regulation,

31:27 but often because they're incorporated in contracts.

31:31 Um,

31:31 so for instance,

31:32 cybersecurity standards might be developed by a

31:35 group of industry actors and so forth,

31:36 but then they become legally binding on all sorts of people because

31:40 they're incorporated into the contracts that they'll sign with other firms.

31:44 So I,

31:44 I guess I would just,

31:45 um,

31:45 emphasize that the,

31:47 that in their.

31:49 There might be more situations than than

31:51 than you might think in which standards have some sort of legal force for the people

31:56 who are,

31:57 who are who

31:58 who might want to comply with them,

32:00 and that of course suggests that

32:03 When you're trying to assess the efficacy of a standard

32:05 or the case or the benefits of adopting a standard,

32:09 you'd have to take into account the,

32:11 the,

32:11 the efficacy of the legal system,

32:13 right?

32:13 So that means,

32:14 it's how,

32:15 how easy it is to enforce those kinds of contractual conditions.

32:18 So that was one

32:21 reaction.

32:22 And then on the second part of the talk about

32:25 the legal regulation of standard setting,

32:28 um.

32:30 I thought,

32:30 uh,

32:31 there's another

32:33 set of legal issues that arise that I would highlight which are just

32:36 having to do with the internal governance

32:37 of standard-setting organizations because sometimes that becomes very

32:41 complicated,

32:42 um,

32:43 especially when it comes to setting technical standards,

32:46 uh,

32:46 where

32:48 lots of industry players are contributed,

32:50 contributing patented,

32:52 uh,

32:52 subject matter,

32:53 resolving.

32:54 Disputes about the terms upon which that those patented,

32:58 uh,

32:58 uh,

32:59 uh,

33:00 subjects can be,

33:01 will be contributed and then remunerated.

33:03 So the,

33:03 the,

33:04 basically,

33:04 there's a compulsory licensing,

33:06 uh,

33:06 regime there that actually occupies.

33:11 Thousands if not millions of hours of lawyers' time sort

33:14 of resolving those disputes and often on an international level.

33:17 And so,

33:18 um,

33:18 I,

33:18 I just wanted to also highlight that issue that the

33:22 sort of

33:23 setting up a standard setting organization,

33:25 whether domestically or on a transnational scale can

33:28 raise these internal uh legal questions that can actually be quite challenging.

33:33 Anyway,

33:33 that,

33:33 that,

33:33 that was it,

33:34 um,

33:34 but I look forward to the,

33:36 to the conversation.

33:39 Thank you.

33:39 Uh,

33:40 I think we sort of

33:42 begin with the last point

33:44 that he made.

33:45 So our thing is,

33:45 is sort of saying that most contract,

33:47 most standards between private parties

33:51 that are embedded into contracts,

33:54 they are,

33:54 they are voluntary because the contract

33:56 between the two private parties,

33:58 that's,

33:58 that's a voluntary contract.

34:01 But your view is that if it is written into the contract,

34:04 it is mandatory as per the contract,

34:06 but the contract itself is not mandatory,

34:11 right?

34:11 So how much,

34:12 but the thing is I,

34:13 I spent a lot of time studying boilerplate contracts,

34:16 and so often people don't have much choice but to

34:20 adopt a contract.

34:21 So

34:22 yes,

34:22 it's voluntary in the typical,

34:24 in the,

34:24 in the,

34:25 the,

34:25 the narrow formal legal sense,

34:27 but

34:28 um.

34:30 In practice,

34:31 it may not

34:32 feel voluntary to the people who are bound by it,

34:34 so I wouldn't

34:35 uh place too much weight on that.

34:39 Yeah,

34:40 I,

34:40 I think there's abound of legal theory behind this also,

34:44 which is how much one could be a sort of voluntarist

34:46 about law,

34:48 and how much is law,

34:48 a whole thick pattern of social practices,

34:51 and norms and expectations,

34:53 uh,

34:53 intensified and formalized in some way,

34:56 uh,

34:56 versus how much is the choice,

34:58 I choose to do this to transact or I don't,

35:00 uh,

35:00 so.

35:01 And I think

35:02 if you're a manufacturer of some

35:04 textiles in Bangladesh or Mauritius or wherever it might be,

35:08 Lesotho,

35:09 uh,

35:10 you've got your factory,

35:11 you've got to sell the stuff somewhere.

35:13 Uh,

35:13 you also want your workers to have a job.

35:15 So it's supply chain people say got to bring this,

35:18 this,

35:18 this,

35:18 it seems

35:20 to us at least a bit.

35:22 A bit too fanciful to say,

35:23 oh well,

35:25 you could tell them I'm not making the contract because

35:26 I don't like the standard you're imposing for something.

35:28 So,

35:29 uh so

35:30 so I think we've really got to drag this the power system,

35:34 but also

35:35 The kind of stuff Kevin does,

35:36 it's working on

35:37 the standard contract used in the construction industry or architects or uh

35:41 the,

35:41 the terms of service of,

35:43 of,

35:43 if you use Instagram or whatever the terms of service or Microsoft Teams,

35:47 there isn't any choice.

35:49 That,

35:49 that is the contract.

35:50 So whatever the standards are there,

35:52 are there.

35:53 Uh,

35:53 so,

35:54 and,

35:54 and all the rules,

35:55 uh,

35:55 whatever Microsoft could do with the stuff,

35:58 uh,

35:58 that's.

35:59 None of us have anything to do with that.

36:00 Pro.

36:00 The World Bank doesn't have any negotiating

36:02 power really with Microsoft or not much.

36:03 So,

36:04 so,

36:04 uh,

36:04 governments don't really,

36:05 most of them.

36:06 So,

36:06 uh,

36:07 so to us,

36:08 well,

36:08 let,

36:08 let's look at the normativity,

36:10 what's registered there,

36:10 and especially when it's replicated in millions and billions of

36:13 times in the case of some of these contracts,

36:15 uh,

36:16 it really gets thick with them.

36:17 And,

36:17 and those companies themselves,

36:19 uh,

36:19 the,

36:20 the,

36:20 the medium,

36:20 the big players,

36:21 they are also having to rely on their contracts.

36:23 They need a standardized form because they

36:25 might be securitizing that asset and making.

36:27 Conservatives or they might be making a deal with somebody else.

36:29 He's 2 million of these coming.

36:31 They need to say,

36:32 and they're going to be like this,

36:33 and I know they're like this because all of our contracts require that,

36:35 and we certified and so forth.

36:37 So they get so thickly embedded that to us,

36:39 at least these standards,

36:41 it's not a very sharp distinction between,

36:43 uh,

36:44 voluntary and

36:45 obligatory and most people's lives and practice,

36:48 including most businesses and a lot of people in developing countries and,

36:51 and the

36:51 businesses going there.

36:52 So that's,

36:53 and a lot of and a lot of governments actually.

36:55 Uh,

36:56 so,

36:56 uh,

36:57 so,

36:57 and I,

36:57 I think that's probably a good way to see it because

37:00 Uh,

37:01 if one imagines that that's that,

37:02 that what that that's the ordinary dynamic,

37:05 then one can make the recommendations and theorize standards

37:08 with that.

37:09 As,

37:10 as the default idea,

37:11 not

37:12 freedom

37:12 and choice as the default.

37:14 But by your

37:15 criteria,

37:16 every standard is then mandatory because,

37:19 because,

37:19 you know,

37:20 I mean,

37:20 the markets work through contracts.

37:22 Contracts

37:24 include standards.

37:25 So markets are then

37:28 basically based on mandatory standards.

37:30 No,

37:30 because some,

37:30 some,

37:31 some markets there's competition over the standards.

37:33 Uh,

37:33 one

37:35 set of them are doing this and another one is doing that,

37:37 and a new entrant comes,

37:38 you see this in fintech,

37:39 for example,

37:40 uh,

37:41 wherever there's something moving,

37:42 there's often a variation in standards is one

37:44 of the competitive features that it's advertised and,

37:46 uh,

37:47 you,

37:47 you see,

37:48 you see a significant variation,

37:49 say,

37:49 in some tech companies.

37:51 Uh,

37:51 try to emphasize that the privacy respecting

37:54 features of theirs that it all stays on your phone or whatever it is,

37:56 is that

37:57 that's,

37:57 there's a whole lot of standards backing that.

37:59 The standards for app developers,

38:00 access to,

38:01 to address books,

38:02 all these kinds of things on that.

38:04 They're all that whole suite of standards is there,

38:06 um,

38:07 or the competition.

38:09 Why is Android different from that there was there's

38:12 a lot of difference in the standards also.

38:14 So,

38:14 uh,

38:15 so,

38:15 so,

38:15 so I think some of us it's competitive and sometimes they're truly voluntary.

38:18 What,

38:18 what

38:19 it is just a choice.

38:20 We're going to.

38:21 Do this or this or that way,

38:23 uh,

38:23 but I think we,

38:26 it's probably there's some interesting examples of truly voluntary,

38:29 uh,

38:31 where there's a multiplicity of choices or

38:33 some people are choosing not to do any of it.

38:35 That's maybe nice to accept that

38:37 is so,

38:37 but to me that's a

38:39 more of a rarity,

38:40 uh,

38:40 in terms of the importance in the world.

38:42 I don't know Kevin wants to add anything.

38:45 No,

38:46 no,

38:46 no

38:48 we open it up.

38:49 Yes,

38:50 I have a

38:51 quick question.

38:52 Uh,

38:52 great,

38:53 amazing.

38:53 Uh,

38:54 one,

38:55 concern is that in national laws,

38:58 usually to determine the efficacy of the law,

39:00 you conduct

39:01 cost-benefit analysis of whatever standard you're setting for your national,

39:05 uh,

39:06 legislation is an international standard setting.

39:09 Uh,

39:09 how is that done?

39:10 And have you thought about like

39:13 what

39:14 Uh,

39:14 the standard setters think about the cost-benefit and

39:18 Uh,

39:19 also,

39:20 the impact assessment,

39:22 uh,

39:22 boost the,

39:23 uh,

39:24 standard setting.

39:25 Well,

39:26 the,

39:26 the,

39:27 the,

39:27 the,

39:27 the standard setting bodies are starting to do this now

39:30 to try to show their worth and all that,

39:32 uh,

39:32 and

39:34 you may know that the

39:36 Money anti-money laundering standards.

39:38 There was a rather entertaining

39:41 study of

39:42 whether they,

39:43 whether the benefits really outweighed the costs that are imposed on everybody.

39:45 All these banks and things to know your customer,

39:47 report this,

39:48 that,

39:49 that all over the world.

39:50 Uh,

39:50 what,

39:51 uh,

39:51 how much money laundering was reduced or

39:53 terrorist financing was being reduced by that?

39:55 What was the cost-benefits?

39:56 So,

39:57 it wasn't

39:58 with that study of quite a few years ago,

39:59 it wasn't so clear that the evidence that it was.

40:03 Clearly a

40:04 a

40:05 good cost-benefit outcome was not so clear.

40:07 So,

40:08 uh,

40:08 so I,

40:08 I think a lot of this is unknown,

40:09 and there's a tendency

40:11 law has been like this and still is in some countries.

40:14 The people involved in law,

40:15 legislators and regulators

40:16 tend to produce more and more,

40:18 uh,

40:18 just like

40:21 organizations when they're formed,

40:21 some of them cease to exist.

40:23 So you tend to just get a more and more dense thicket

40:25 and not much abolition.

40:27 Uh,

40:27 it's the deregulation agendas and that element of.

40:31 You know,

40:31 liberalism,

40:31 etc.

40:32 but,

40:32 uh,

40:33 it's,

40:33 it's,

40:34 it's struck at that,

40:35 uh,

40:36 and as well as the efforts to reform

40:37 government and digitize and rationalize these things,

40:41 make,

40:41 make,

40:41 make an algorithmic or AI,

40:44 uh,

40:44 like next year's WRPR will be about,

40:46 I think.

40:46 So

40:47 I think it's an interesting question whether

40:49 there's going to be a destandardization.

40:52 It demurror deregulation.

40:53 People aren't talking about that yet because there's still such an

40:56 entrancement of standards,

40:58 uh,

40:58 and,

40:59 and,

40:59 and this was the case with law

41:01 a few decades ago,

41:02 but people thought almost all laws good,

41:04 you know,

41:05 except some

41:05 human rights thing or something.

41:06 But

41:07 then after a while,

41:08 you know,

41:08 maybe that's not so clear.

41:09 And so,

41:10 so I think that's it still to come,

41:11 all of that cost-benefit question.

41:13 But again,

41:13 Kevin

41:13 may know more about that.

41:16 No,

41:17 I was actually

41:18 struggling to think of

41:20 instances of what I think of the standards

41:22 that have been submitted,

41:24 that have been subjected to cost-benefit analysis.

41:26 Actually,

41:26 it's um

41:28 it's not the

41:30 It's not a common standards have been withdrawn.

41:34 Yes,

41:35 yes,

41:35 but,

41:36 but often that's in the context of a,

41:37 of a technological change or something,

41:39 uh,

41:39 or occasionally a big new entrant,

41:41 uh,

41:42 but once they get embedded,

41:44 I think a lot of them are still

41:45 there,

41:45 probably,

41:46 and,

41:46 and there's another interesting question with law,

41:48 legal theory at least.

41:50 You get old laws still on the books and there's a legal struggle.

41:53 Would you still apply that law?

41:54 And often you find workarounds where people are ignoring it or whatever.

41:58 Uh,

41:58 some regulatory bodies have that and in lots of countries.

42:00 There's old rules and the administrators just aren't really applying,

42:03 or they sort of,

42:03 yeah,

42:04 they have,

42:04 but actually you follow this practice.

42:06 So

42:06 I think that is probably happening with standards too.

42:08 They're sort of destitute of old standards.

42:10 They're not abolished.

42:11 They're just not.

42:12 Followed and it's a really interesting question,

42:14 how does that work?

42:14 So since we have a limited time,

42:16 why don't we take a,

42:17 a few questions

42:19 and then you can answer,

42:20 yeah.

42:21 Yes,

42:21 it is.

42:22 Hi.

42:22 Uh,

42:22 thank you.

42:23 uh,

42:23 Professor,

42:24 thank you for your presentation,

42:25 and actually I wanted to sort of,

42:26 uh,

42:27 uh,

42:27 support the argument that you made,

42:28 uh,

42:29 with regards to,

42:30 uh,

42:30 the multiplicity of standards and how they can go into each other.

42:33 Uh,

42:34 I think the case of,

42:34 uh,

42:35 JSM versus the CDNF,

42:38 so it's quite,

42:38 uh,

42:38 a good,

42:39 uh,

42:39 fitting example for this.

42:40 In this case,

42:41 I,

42:41 I'm from London.

42:42 I used to be a director of ICT

42:44 back in the days overseeing the national,

42:46 uh,

42:46 ICT sector.

42:48 And uh at the time as we're developing the national infrastructure inside the world

42:53 we had obviously a number of vendors that would come with us some that

42:56 will come Jason some will come that will see a DMA they will say

43:00 we kind of took both.

43:02 But uh sitting in the one turned off.

43:05 Uh,

43:07 of the,

43:07 I can put it that way.

43:08 So fast forward,

43:09 uh,

43:09 I had the benefits of working here

43:12 on emerging tech,

43:13 uh,

43:13 AI blockchain,

43:14 and

43:16 I had the opportunity of seeing how

43:18 the standards,

43:18 the standard setting efforts were

43:20 being done on this technology and how inclusive seem they,

43:24 they seem to be,

43:25 um,

43:26 and one of the things that I thought that

43:28 would be also useful to emphasize is actually the,

43:31 the,

43:32 the lack of leverage that,

43:33 uh.

43:34 Um,

43:34 developing,

43:35 developing countries have the standard setting part

43:39 because they tend to be formulated very far away

43:42 at the time because I mean with technology now we can do Zoom calls

43:44 and things like that they should go back in the days we need to

43:47 go to Geneva and attend all these meetings and that.

43:50 Certainly reduce the level of influence that developing countries can have,

43:54 and even the knowledge

43:55 of how to participate in those,

43:56 uh,

43:57 standard setting,

43:57 uh,

43:58 type of,

43:58 uh,

43:59 meetings,

44:00 uh,

44:00 I thought that this would be interesting to contribute to.

44:03 However,

44:03 one thing that,

44:04 uh,

44:04 a question that I had for you since you mentioned governance,

44:07 how should the governance look like going forward for the standard

44:10 standard setting bodies because that would be useful to have a better.

44:15 Yes,

44:16 I have a similar question.

44:18 OK.

44:18 So let's move on now.

44:19 So,

44:21 yes.

44:22 Um,

44:24 thank you,

44:24 Professor Ginsberg,

44:25 for your presentation.

44:26 My question is in relation to trade and standards.

44:29 What are your thoughts on

44:31 certain standards being like a trade barrier,

44:33 not,

44:34 um,

44:35 trying to sanitize standards as an example of,

44:38 you know,

44:38 non-tariff barriers come to mind.

44:43 OK,

44:44 so,

44:44 uh,

44:45 so,

44:45 so there's an enormous

44:47 issue how,

44:47 how 8 billion people in the world are going to participate fairly

44:51 in

44:51 the standards process.

44:52 Uh,

44:52 so the

44:53 history of this,

44:54 lots of countries

44:55 don't have still a national standards body really or barely,

44:58 uh,

44:59 and it's very difficult to adopt some external standards partly for the

45:04 because of the network effects and

45:06 to make it.

45:08 Technologies and

45:09 partly just this year and developing them it's huge for efficient.

45:13 I think you do see an interesting move towards regional standards which

45:16 there's quite a long history of this and different regions are different.

45:18 Some are really quite

45:20 It,

45:20 it's quite,

45:21 quite a,

45:21 quite a lot of energy goes into them,

45:23 but of course it's a problem of funding it,

45:25 uh,

45:26 and,

45:27 uh,

45:27 and it,

45:28 and if you fund it,

45:29 it's very difficult to do other than getting industry to pay for it,

45:33 uh,

45:33 which usually got to mean it's,

45:35 it's an agenda.

45:35 So,

45:36 uh,

45:37 so,

45:38 I,

45:38 and I think the,

45:39 uh,

45:39 there's also though,

45:41 the expertise needed.

45:42 The government's really struggle with this in general,

45:44 uh,

45:45 in some of tech areas and

45:47 And

45:47 there's this interesting tension between the people who

45:49 are really in the industry and know it,

45:51 um,

45:51 uh,

45:52 and,

45:52 and the idea of governing it from outside and so there's,

45:56 there's just a huge lot of challenges.

45:57 And so I think

45:58 quite likely it's going to be a question of,

46:01 are they going to be plausible proxies.

46:03 People who players in this who are big enough knowledge and who sort of stand

46:08 in the place of the interests of at least a lot of developing countries,

46:12 not everybody,

46:12 it's not perfect and may be very flawed,

46:14 but something like that.

46:15 I think a lot of developing companies have wanted to shift

46:17 the standard setting firmly into the more intergovernmental things like ITU,

46:20 for example,

46:21 uh,

46:21 whereas a lot of other people,

46:23 in the US,

46:23 for example,

46:24 the industry want to do it at maybe private

46:26 and just get the international bodies to ratify it.

46:28 I think what,

46:29 uh,

46:29 historically that,

46:31 uh,

46:32 North Americans,

46:32 the Europeans,

46:33 a few others have dominated Japan,

46:35 and there's,

46:36 I think there's really,

46:37 of course,

46:37 uh,

46:37 China is now a hugely important standard setting and,

46:40 and has a fantastic expertise in this,

46:42 a lot of,

46:42 a lot of people trained in this,

46:44 a lot of industries producing standards,

46:46 uh,

46:46 and in some areas have really tried to take a lead.

46:48 So

46:49 I think what may happen is there's going to be more

46:50 of a multiplicity of standards are offered to developing countries,

46:53 uh,

46:54 but often they're going to be tied into financing

46:55 and contracts and this project and so forth,

46:58 so.

46:58 Uh,

46:59 I think it's really a matter of how much for developed countries it's what it

47:03 showing,

47:03 is there enough at stake

47:04 on some of these things that it makes sense

47:06 for some developing countries to work as a collectivity

47:08 to develop

47:09 their own idea of standards,

47:11 uh,

47:11 and,

47:11 and this,

47:12 this happened a few times already.

47:14 Uh,

47:14 it's not going to happen in every sector,

47:15 but I think that that will be the large issue about governance as I see it,

47:19 um,

47:21 the,

47:21 the trade barriers

47:23 question.

47:24 Yeah,

47:24 it,

47:24 it,

47:25 it,

47:26 it's very tempting if you have a big enough economy,

47:27 uh,

47:28 to use

47:30 standards as a,

47:31 and the idea of the WTO when it was war.

47:34 Flourishing form it may maybe yeah,

47:35 uh,

47:37 is to try to control that.

47:38 The TPT committee has thousands of,

47:41 of,

47:41 uh,

47:42 review processes of different different players objecting to this or that,

47:45 and the committee's quite scrutinized quite in detail for those things.

47:49 So

47:50 one of my former students actually has written a forthcoming book on,

47:54 on,

47:54 on efforts to require labeling of foods for nutritional things and,

47:58 and also not to use cartoon characters.

48:00 Uh,

48:01 and,

48:01 and,

48:01 uh,

48:01 in Chile it succeeded partly because,

48:03 uh,

48:04 Balet was,

48:05 was a pediatrician,

48:06 I think when she was president of Chile,

48:07 really determined.

48:08 Indonesia,

48:08 they tried it and,

48:09 and were really defeated by the food lobby,

48:11 uh,

48:12 so,

48:12 uh,

48:12 and,

48:13 and,

48:13 and,

48:13 and,

48:13 but the suspicion

48:14 that,

48:15 that what food lobby said internationally was this is a protectionism.

48:18 Uh,

48:18 that this is going to make the foreign things less

48:21 exciting or it's or the labeling is going to be,

48:23 etc.

48:24 So,

48:25 uh,

48:25 so I think a lot of this is those kind of struggles,

48:27 and part of this is the presence of civil society,

48:30 NGOs,

48:30 other kind of players at these,

48:32 and sometimes they themselves are demanding

48:34 problematic standards actually also from this

48:38 rather

48:39 single

48:40 issue viewpoint.

48:41 So,

48:41 so I think that's what there is to say,

48:43 and all of this needs better regulation,

48:45 uh,

48:46 but usually.

48:47 On these,

48:48 you're thinking,

48:48 you have to think it's very large scale,

48:50 I think.

48:52 So we have,

48:53 uh,

48:54 one last

48:55 question.

48:56 Oh,

48:56 please,

48:56 uh,

48:56 thank you very much for your presentation.

48:58 Um,

48:59 so standards is a terminologically controversial notion that,

49:02 that's for sure.

49:03 But when we,

49:04 we think about,

49:05 you know,

49:06 multilateral development,

49:07 uh,

49:08 institutions,

49:08 what should be the key feature of the notion of standards?

49:12 Who,

49:13 how should we think about standards and who are the

49:17 standard setting bodies?

49:18 And you mentioned,

49:19 you know,

49:19 so the role of,

49:20 of gall and this kind of.

49:23 process mentioning the GBT

49:24 agreement in committee and

49:26 you know

49:27 um

49:28 requiring participation.

49:29 Do you see a similar

49:32 process or uh mechanism in the,

49:35 in the system of development

49:38 in the case of the World Bank,

49:40 the fact that the standards are then

49:43 integrated in a legal agreement.

49:47 Uh,

49:48 so at the moment it's,

49:49 it,

49:50 there are these

49:51 plenary type bodies with a general competence like ISO

49:54 or IEC,

49:55 uh,

49:57 and,

49:57 uh,

49:57 a handful of others,

49:58 uh,

49:58 um,

49:59 and,

49:59 and then there are central bodies

50:01 who are focused on something or the other,

50:04 uh,

50:05 so,

50:06 uh,

50:06 and,

50:06 and those,

50:07 uh,

50:08 so,

50:08 so ITU is dealing with.

50:10 Telecom services,

50:11 etc.

50:12 or or

50:13 someone's doing food or so there's that kind of

50:16 sectors and then there are the regional bodies which are

50:19 some combination of those and then the industry associations who tend to be

50:23 in a sector,

50:24 but often it's a

50:26 it's a conglomerate type situation.

50:29 Um,

50:29 and,

50:30 uh,

50:30 there,

50:31 there are single companies who make standards.

50:33 Some of the very big tech players,

50:35 uh,

50:37 Google,

50:37 Huawei,

50:38 Microsoft

50:39 that really almost define the standards themselves in some areas,

50:42 and then others,

50:43 all the other people in the huge ecosystem and kind of

50:46 go along with it.

50:47 So,

50:48 I think the way to

50:50 to look here is to look at who,

50:51 who is setting a standard which anyone is listening to

50:54 and,

50:55 and whoever it is,

50:56 however they're constituted,

50:57 wherever they exist,

50:58 what scope,

50:59 what membership,

51:00 that then to treat them all in the same

51:02 zone of these,

51:03 these approaches to,

51:05 to the better regulation of standard setting ought to apply to them.

51:08 That,

51:08 that's roughly

51:09 what the government's law spirit is about and not about.

51:12 Uh,

51:12 and I don't think there's any,

51:13 I,

51:13 I think the,

51:14 the cost of trying to

51:15 standardize standardization,

51:18 uh,

51:18 would,

51:19 would

51:20 across different sectors,

51:20 different kinds of industries,

51:21 different technologies,

51:22 different situations of regions,

51:23 different development,

51:24 different ecosystems,

51:25 different climates,

51:26 uh,

51:26 literally climates,

51:27 different environments,

51:28 planetary,

51:28 so

51:29 the cost of trying to standardize all of that would be

51:31 way more than the value gate.

51:33 In fact,

51:33 I think a lot will be lost.

51:34 So my own feeling is that although it's one.

51:36 chaotic.

51:37 What this is all we,

51:38 we talk about a Jack Jackson Pollock painting splat here,

51:40 splat there,

51:41 a right here,

51:42 nothing there.

51:43 That's what it's like.

51:44 That's what the global missile space looks like.

51:45 And this you really see it,

51:47 and I think we have to learn to live with that and to

51:49 act and theorize and play in it,

51:51 not to try to impose an order on it which isn't going to be there.

51:54 Uh,

51:54 and I think we,

51:55 we see the struggles about this with AI

51:57 standards hugely at the moment.

51:59 Uh,

51:59 it's a whole series of false starts,

52:01 more or less you would say.

52:02 Uh,

52:03 uh,

52:03 it sucks because

52:05 one moment it's going to be AI safety,

52:06 AI safety insurance within 6 months they've changed the names.

52:09 They're opted out something else,

52:10 the AI.

52:11 So one moment it's going to be model scrutiny and all that.

52:14 Next moment model's going to be out in 8 days.

52:16 So,

52:16 so

52:17 there isn't any,

52:18 it's,

52:19 there's just no possibility.

52:20 It's really

52:21 there.

52:21 You're talking about the social norms of the players

52:23 plus a bit of heavy breathing by whatever governments

52:25 get organized.

52:28 Thank you,

52:29 uh,

52:29 so much,

52:30 Professor

52:30 Kingsbury.

52:31 Pleased to join me in thanking him.

52:37 Professor Davis,

52:41 thank you.

52:42 Well,

52:43 thanks all.

52:43 And anyone who has questions,

52:44 email me if you want to you or email Kevin

52:46 Davis if you want someone who actually knows something.

52:48 Uh,

52:50 and actually like we have experts in the WTO side to Rob House and others there,

52:53 uh,

52:54 but,

52:54 and I'm going to be hanging out here,

52:55 but if you have

52:56 those who are in the room want to ask any questions afterwards,

52:58 most welcome.

53:02 Thank you.

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I'm Devesh Patton, uh, professor at Johns Hopkins, and I'm a member of the WDR team. Uh, and it's a great pleasure to welcome Professor Kingsbury, who's the vice dean and the, and the Murray and Ida Becker, Professor at, at, of Law at NYU. Now, uh, we have to sort of thank, uh, Vikram Raghavan from the bank, who had, in a conversation several months ago, had pointed out our profound sort of ignorance in not sort of understanding how much standard making has become part of what in legal circles is called soft law and related to international sort of administrative law. And he pointed out, uh, uh, Professor Kingsbury's work as someone who's thought about this more deeply and for longer than anyone else. And that is why it's a great pleasure for us to welcome Professor King as part of the WDR 25 seminar series. We welcome and sorry, sir, about this. Uh, good. So, so I welcome everybody. Uh, well, topic, uh, standards in law, as I'm a lawyer, law scholar in NYU, and so. Uh, I'm just trying to bring a few perspectives from the side of people working on law, regulation, governance, uh, uh, mainly international beyond the state, but with some orientation towards development, uh, and, uh, I, I think online hope my sometimes co-authoring. A close colleague, uh, at NYU Professor Kevin Davis, so, uh, he, he may pop up, uh, if he's able to navigate the technology, uh, and, uh, talk a little bit about some ideas he has. He works a lot on more development. In fact, he's in Jamaica right now. That's where he's joining from. So, uh, uh, so. I, I, my idea is to say, uh, a few things about standards and, and compare them to some other things which also have some elements of a regulatory effect, uh, and partly because, uh, uh, somebody who's unfortunately not able to be here today in the last uh due to some situation personal, but my, but, uh, uh, and division. Well that's one of the challenges is deciding what is the standard, uh, how do they work in parallel or overlapping with other, other regulatory things, and is there any way of differentiating them? So it's a little bit to address that, I then say it's a little bit about how law, particularly international law, uh, addressed self-addressed the standards that you might call the legal regulation of standards. Uh, and then, uh, uh, a little bit about some of the ways in which it seems to be that standards operate as a, as an apparatus of governance, um, uh, and, uh, particularly international beyond the state reaching interstates, and, uh, then how do we regulate that kind of apparatus and here that last one is the idea of global administrative law, uh, but I don't want to take too long to talk because I really hope it can be interactive and people can ask their questions, make comments, uh, and use this as a as a setting for that, so. Uh, yeah, so that's the agenda, and, uh, that this is not, uh, what I'm going to talk about, but I'm trying to think what, why are people talking about standards here in the World Bank, uh, I mean standards in relation to development, and part of it is the premise that uh that there's a relation between standards and economic growth. Uh, and the International Standards Organization, ISO, one of the principal standards setting bodies promulgators, uh, and, and, and also a kind of endorse or ratifier other people's standards. Uh, this is, uh, this paper 2019 has a lot of the economic mechanisms of how, uh, standards might produce economic growth. So, uh, it's, it's a rather a There's a slightly cheerleading tone, uh, this, uh, and I wanted to start there because of course there's an important point that why would it be worth the effort of the cost of engaging in standards, making standard implementation, etc. uh, but if there wasn't some overall, uh, normative objective. So, and, and I assume on the economist side. At least it tends to be something about growth or development maybe sustainability, some some suite of things, uh, but that's the big picture, um, so, uh, but of course it's not, doesn't always go like that and there's other ways of looking at it, uh, they're not, not negative, just different, so what, what do we know about the terms standards, uh, in, in the Bretton Woods institutions, well. Uh, it, it that many will already be very familiar with the reviews of standards and codes, which was, uh, uh, started I think in 1999, uh, the World Bank and IMF jointly, uh, as a means for, uh, encouraging and stimulating over. Seeing perhaps occasionally chastising, uh, countries, uh, including developing countries in relation mainly to standards to do with, uh, economic issues, financial, uh, governance. So, so here the standards is, is, is put as, as the rules of the game. Uh, for economic and financial policies and, and, and, and then they shift quickly. This is from the IMFF website just still, still there, uh, to, to playing by the rules as, as with the standards. So those kind of standards are pretty, uh, There's a pretty heavy weight pushing in that direction. So there's a kind of compliance expectation here and a strong idea that whatever is, if you do what's in the standards, you'll be doing everything better. That kind of imagination. So that's one sort of view highly prescriptive and very much as if you would make rules. In fact, what they call standards really are often highly regulatory instruments like by the Basel Committee or the insolvency requirements or whatever. And some of them were accompanied by efforts to get developing countries and emerging economies to reform their laws, including on insolvency. So, so that's the programmatic use of standards in that rather strong, uh, way. Uh, here I put it the opposite kind of line, which is, uh, from a, uh, anthropologist, um, uh, who really, uh, trying to capture the cultural elements of standards. What, what are the human relations, uh, that the shifts in, uh, practices amongst people in small institutions, the big ones, uh, the cultural shifts which happen when you go into, into standards, uh. And, and so, so, so one can get at this also not from the top down. It's, it's agreed by the IEEE or someone in Geneva or something fun, that's got to be the standard. One can try to understand them from in their sort of local origins, the local practices, uh, and especially in the interaction between those two things. So I think here's where we see the bridging between the idea of governance at a distance through standards and sort of local practices embodied formulated and standards and the sort of gradual what you might call a bottom-up formation. And the history of American capitalism has been very much in that second one. In fact, a lot of local practices which became only very slowly nationalized and and made national in the US and even now it's not a very complete process. And that's one of the reasons that, sorry, that uh that the people in the uh literature. Tim Bra and Matley, for example, said the Europeans have tended to do better in international standard setting processes than the Americans because the US, uh, uh, has had struggled to have a single peak national body to represent the US and international standardization unlike the Europeans who have a hierarchical structure and a heavily national focused structure. So oops, OK, so, so, so, so here's the, uh, uh, what the Concept note has about standards, codified solutions that are designed for common and repeated use and are recognized by multiple stakeholders. Now I'm sure it's been a huge discussion and struggle of the WGR world as to what is going to be met by a standard, uh, but this is what's said so far, uh, and perhaps this is a day when people might discuss that a bit more if there's any comments on this. It's a, it's a challenge, uh, and of course that sounds kind of broad, codified solutions you could imagine those are technical. Operative things without even being written down almost, uh, or a codification I suppose the idea of writing, uh, textualization but and the idea that they're basically voluntary, uh, often produced privately, but they could become embodied in regulations, uh, so, uh, uh, that's the, that that's the distinction. There's a little bit of an implicit pathway there also and it's made express in this idea that first developer companies seem to not have many standards. Uh, an absence of them, uh, then they can adopt other standards from outside and finding they can offer them. And then I've added in square brackets well. Then you get the dynamic. The standards start to compete with other standards or companies use them in competition. Our players use them, industries use them, big companies, uh, when you've got standards, you start to defend them or use standards to defend your own position, uh, lock it in, make it harder for others in various ways and all the better if you can get it as a patent or some intellectual property context, and eventually you end up opposing your standards and going around the world, cajoling, urging, uh, people to join your enterprise. So, Uh, OK, so, uh, here's the Barry, thank you for your help me make these things, uh, I, I, I wanted to go a little broader now and to think, well, what do standards resemble, and here is this is going to strike you as wildly improbable, but to me they, there's some interesting relations between standards and infrastructure. Uh, and I'll come back to that. I realize it's probably not what anyone's thinking of, but I think we can actually think that often to have infrastructure, uh, if you think, say, of, uh, Belt and Road, uh, or system of ports and container ships, uh, place to place, uh, uh, stretching over the world, it could be anybody's, uh, structure. There's enormous amount of standardization in there which goes also with the tech transfer to make it an interoperable and connected system in lots of countries. And so really a lot of these infrastructures are themselves embodiments of standards and projectors of standards. And if you're going to have infrastructural development, you have also the embrace of standards, uh, and it kind of, so. Whoever's influencing the infrastructure development is influencing standards. So we can think of infrastructure as the embodiment and stantiation of standards, and once that's happened, they, they become built in as a sort of installed base and very hard to shift away from. So I just wanted to mention that it's part of it. I, I teach a course on infrastructure and work a lot on this. Um, and infrastructure has regulatory effects also. Um, but, uh, uh, otherwise we, we, I think we expect a lot of comparisons overlaps between standards and law, but I think all three of them have these features that you get a multiplicity of different systems, uh, which have to connect up different countries' laws, different private laws, uh, regulations within industry. Industries, say, um, uh, transnational arrangements, contractual terms, supply chain regulatory arrangements, all these sort of stretched laws reaching out, um, but they often have to join up with other ones and come into networks, um, of laws or regulations in the same kind of way, uh, as we, we, we would think of a technical infrastructure joining up gateways from one system to another so that they can be interoperable linked or you could use them in combination. Uh, and we can think of standards having to do the same thing. That is, it's, I think it's often very misleading to think of a standard or a suite of standards in isolation. Uh, and one then ends up analyzing that, but not seeing that it's completely embedded and dependent on all these other things, and that once you go to embrace one rod, you will be then triggering other things to arrive. That is, that will become your installed base. You won't be able to just choose any other standard because it will have to work sensibly in your economy and your society, uh, and your industries with the ones you've already embraced. So I think there's a Quite a pathway here and if if studying law we know that very well if you think of common law influencing still how many uh former British colonies operate four elements of their of French law the same uh these transmissions last a very long time and have continuing influence and I think we can think of standards in some way the same way, especially if it gets more of an agenda, uh, to adopt them. OK, so. Uh, that they have also this feature of rationality and like commitment at least to that, not necessarily in fact, and of coherence, so they sort of sound a bit like the way we talk about law, rule of law, uh, and they're heavily tied into power, I think, uh, and to me also they connote questions about who's the public for the standards? What's the public nest quality? Who's it face? Who's it transparent towards, who should have a voice in it? And I think we can ask these same questions about law, we already do. Uh, about infrastructure, we sometimes do, um, and about standards we don't worry much and need to do it more. So I think these go together if you're going to advocate big standardization in lots of places, uh, these things have to be part of what's the account of the way in which power is going to operate there, whose voice is going to be heard, and the kind of publicness elements, the reviewability, the debate scope to revise all that. OK, uh, so, uh, here then. Uh thinking about a few more things, uh, which relate, uh, specifically infrastructure because I'm going to move on from infrastructure to to standards. Uh, this is the classical stuff Susan Lee Star, uh, co-authors, uh, that, that so infrastructure becomes embedded that as you start for a while you don't notice it, uh, it just buries in there, uh, uh, standards are like that, uh, and, and infrastructure. Often you can straight out see it though, it looks transparent, but, uh, but you, but you see through it rather than observing it. And I think standards often are like that really people in the industry don't know that's that's, that's that that the whole thing is dependent on those things. So, uh, these interesting questions about the region or scope. Uh, so it's easy to imagine global standards and a lot of the discourse is still that sort of has the globalization 1990s smoothing and everything over and all that. Uh, really, a lot of standards are very local, uh, or very, uh, uh, the, the way they work is very localized and not to a whole country, but it might be one state in India, say, uh, doing the electricity arrangements differently from another state. So, uh, and, and they become this idea of being learned as part of membership that is, uh, the people in the sector, uh, working with them just get used to all these standards. Uh, the insurers know all the steps of ships, know all the standards of ship classifications and what's, how it's got to be built and the safety things and the fire things and the berthing and all that. They, they just live all that stuff in, in almost every area economic sector is like that. Uh, there are things which people take for granted and, and as the new entrants have to learn it all. OK, so there's also, I think the interesting interaction between standards, the law standards and facts. Uh, and, and here I think it's, it, we, we would often think that typically, not always, but typically certainly international law but or big kind of national laws, uh, the, the idea is to be use fairly abstract language. Uh, and you, you've often reached that point. Sometimes you've borrowed from somewhere else, some other country, you've decided this is a reform, we've got to do this, but quite often it's, it's, it's emerged an abstraction from lots of practices. But this is how we do accountability. This is how we're going to do, uh, tort liability. Uh, this is our principle of. Uh, freedom of speech or whatever in some, so you, you abstract from lots of experiences and then we announce it as a general abstraction. Then to make it operational and real needs all the specific maybe regulations and administrative rules and down to certifications and inspectors from the government coming and looking at this or that. That's on the legal side and the standards side has the same sort of effect. It defines what an obligation or a law abstraction really means. Uh, and so, and so we have to understand these, uh, this, this kind of path that the abstract big picture law principles are, uh, only become operational through the specificities of the standards, uh, and all of that. Uh, so, but the law itself moves along if it's adjudicated, a court is involved or, or officials, they are interpreting the law now in the light of the standards. So it's a reflexive arrangement, uh, and so the law moves because of the standards have moved, but the process for the standard-making is different from the law-making process. OK, so, uh, and, and also I wanted to emphasize this point about an installed base that is, uh, just like infrastructure. Once you've got some of it, the next ones have to be built on that one. You don't just repudiate or ignore sort of you don't by mistake, but so it's, it's wrong to think, I think that each is just a free choice operation. Is this the right standard to adopt? Should we import this one and make our own? Should we do a regional one or whatever. So it's and, and, uh, OK, I think that's what I want to take from that. Uh, one more comparison partly with Kevin Davis, we did two books together on indicators, indicators and rankings, uh, Kevin wrote papers about the World Bank's doing business indicators. I'm not sure I was going to say late demented, but, uh, of course reappearing in some ways, uh, uh, so, uh, but, uh, the, this question of what's the retation of an indicator to a, to a, uh, to a standard that is that it, it, and do they work to somewhat in the same. Right, so what we try to define indicators, uh, and, and, and if you have the slides, you see them, see our definition there at the top. Uh, I think I, I won't go around that much we can talk about, we didn't negotiated for about 2 years amongst ourselves to produce that definition. Uh, and, but, but we also in, in the two books we did on this tried to compare a little bit indicators the standard setting. And I think one of the features of the indicator. It is that it's both the standard, it sets, this is what makes a good something rather. This is what makes a, uh, a, a, a, a, a country on a path to development or this is what uh is, is enables efficiently run port. What, whatever your is in the indicator. Uh, so, so it's both the standard, what you, what would be the ideal one, how to get there, but it's also an evaluation. It's evaluative of performance towards the standard. Uh, whereas ordinarily we think of the standard as, as, as simply the, the, the prescription, what you're able to do in ways we'll know if you're getting there and the evaluation is something separate, um, but that's what we thought when we did this book, but the more I reflected on it, I'll come to this, uh, the more I think it's also, uh, we, we could really think of standards and standardization as being that whole sort of governance suite of, of, of debating and making the standards. Uh, getting it made operational in the industry and the, uh, with the regulators or whatever, uh, maybe in national law, it's producing the standard, the text, uh, getting it absorbed and part of the thing, but also the whole raft of, uh, the, the bodies which will, uh, uh, certify that someone's complying or will be the consultants who advise the business or whatever, how to comply with the government. Uh, and then certify, yes, you've complied, give you the label or the stamp or whatever, um, and that certification is then used in further things that might be used by your insurer or by your, your financer to say yes, this is OK, or if you're in a supply chain, you're, uh, of your retail, uh, or Apple or whatever says yes, you've, you've complied, you've met our standards here. So, so, so you have that whole process of certifying and then you have another layer of people who are credit the certifiers. And so these accreditation bodies, uh, who say, yes, you're qualified to certify, uh, um, they are part of the thing and then the auditors, uh, who go run a check and do various other things are part of it. So sometimes the NGOs or whatever. So if we see standards as being that whole suite of governance, then actually it's, it's quite a lot like an indicator, I think so. OK, so here you see our idea indicators are a form of knowledge and technology of governance, and I think we can say the same thing with standards in order to theorize them that way. No OK, so, uh, I, I think I'll I'll skip over a bit of this, uh, because I want to get on now, now if we've Reached the point that we've Got a body producing standards. It could be local, national, transnational, global type peak body like ISOC might be private. Public private or public, uh, and, and actually there'll be a whole set of different players outside as well as inside the body producing the thing. So when we've got that, what can we then think is the law about how those people should do that? So, and, and nationally, there may be requirements of say of transparency of the standard setup, uh, and there may be requirements that once the standard is produced, that it be freely available for everybody, uh, and especially if it's made part of a national law. So some countries that's a requirement of the rule of law of the constitution to, to make the standard available for free. Uh, and, uh, and because it's, because it has that regulatory effect, uh, other, but many standard-setting bodies, their business model is to charge with standards. They have copyright and they, you need a license to use the standard. You can't even get the text. And if, if we reach it later on, we, uh, uh, uh, you want to help me with this, it's fished up from the International Atomic Energy Agency, the, the, the, uh, the price of a whole lot of the different standards for nuclear safety, how much you have to pay, how many euros for each one if you want to know how to actually run a nuclear plant safely. So, so there's a real tension. And that tension is being fought out in some countries' national law about making standards freely available, and it's being fought out now in the European Union, uh, when the European Union either harmonized standards or uses other standards, whether they have to therefore be available free to the public or not, that that's being litigated right now and it's tended to go in favor of they have to be available. So that's, I, I mentioned that because it's a legal regulation and it's, it has serious consequences for the standard-setting bodies because their revenue model is to charge and if they don't have that, they really are struggling. So, uh, some of them, so, OK, so there, there's that kind of legal regulation. There's also regulation in national law, uh, which could be taught liability for a standard-setting body. That is if you set a standard for safety of, of some, say, uh, say a vehicle. Uh, and then it crashes and the person is burnt, uh, and it turns out that that standard was not actually going to keep people safe. You've done the wrong thing or standard for a medical device or, uh, if you've done it, it's possible to sue the standard-setting body. Uh, because the, the, the person who made the mission thing said, look, I made it according to the standard. I complied that they said, and, and, and, uh, they would then defend themselves by saying, look, I, I complied with the standard. And so, so the standard then can work both as a sort of safe harbor for actually you, you, you, you, you harm somebody, but my defense is, but I follow the standard. Uh, and, and, and then they sue the standard-setting body and say you shouldn't have made that standard like that, um, and it was the wrong standard or you didn't listen to the right people, or you were captured by the industry and you didn't, uh, you didn't be tough enough. Uh, so, so you've got that kind of tort type, uh, control of the standard-setting bodies in national law and you also have competition law controls. That is because the standard can be used by the incumbents in an industry to keep out the new entrants. Uh, and, and the big players might all agree a standards because they can all comply with it and, and, and, and that really dominates the industry that they all stick to that so they don't compete on innovation there because they've all locked into the standard. So there's in, uh, countries with uh that kind of fairly well-developed competition law and regulators and lawsuits, uh, competition law, antitrust law relate is important constraint and factor and standard setting. Uh, and putting this in reverse, if, if the bank and other development, uh, enterprises are going to urge lots of developing countries, especially the smaller ones, limited state capacity. To, to embrace a lot of standards, it probably is also necessary to think what's going to be the tort law or what's going to be the competition law, which is going to be in which, which is going to um safeguard the possible risks and abuses here. That is, I think it's not so clear that it's OK just to push for standards without thinking about also the law reform and institutional development which are necessary. OK, so, so that's on the national law side, but I want to come to the international part now. Uh, so global administrative law. Uh, this idea, and I'm going to be quick here now I'm going to stop to open up, uh, uh, is so that this is from the World Bank Legal Review in, uh, 2011, I think, uh, when we were involved a lot with this question of what will be the global administrable standards applying to. NDB's, IFIs in general, uh, so, uh, the, the idea of global minister of law is that if power is being exercised beyond the state, that is not just by the, if it's the national government or national constitutional law, national minister of law applies. You can sue them, get judicial review, or whatever, uh, if it's an international body or beyond the state, that there isn't so clear what are the ways of holding them to account. Uh, and so global administrative law is a field that we've worked on over 20 or so years, us and many others, which really tries to say, well, if, if someone's got to exercise power which influences people's lives, economy, society, and, and the body is doing it not just within the state system where it's legally controlled, but in a transnational way, uh, then, uh, what ought to be the principles of transparency, uh, participation. Giving reasons, obligation to state reasons, uh, review mechanisms to challenge what they've done internally or in another body, and overall accountability, including lawsuits. Uh, uh, government law is about what are the standards and mechanisms which bring to transnational bodies, including the bank, um, uh, it's some sort of Supervision, control, uh, some sort of standards of participation, accountability, transparency, review, etc. So that's, that's the big picture of this field. The specificity here, I think, is, is the question is how does that apply to standard-setting bodies. Uh, that is the ISOIC for example, but also an industry consortium, the consortium who developed the USB standard, which is a purely private company that consortium, uh, said this is what it's going to be. This is how it's going to get interoperability between all these computer systems by everyone doing this, the USBA. So, uh, but someone might say, well, isn't that something not good about that. Uh, you shouldn't have allowed data to flow out through that or you should have made clear which, which way the thing's flowing or you shouldn't have done something. So, so, uh, what, what's going to be the, who should be able to participate in that? Uh, is it, it's a private, in that case, a private standards setting organization. Should only the players in the industry be able to be there? Only the existing manufacturers or existing tech companies, or what about the public? Uh, what about the, the people who aren't there yet and want to join? Uh, and what if there are patterns? Someone has patents on part of it, uh, uh, then what? So, uh, so, so even though it's a purely private body, but it's totally voluntary in a way, the effect is so enormous worldwide in the case of that standard USB. Uh, that we can ask, well, what should be the rules of who could participate? What should be the rules of what they have to disclose and give the good working drafts? Uh, what should be the the the obligation of them to state reasons for the things they haven't done? Uh, so, uh, and should they be reviewable? Uh, where, so, so that's what the governance law enterprise is about. So we have a ton to say about that, hundreds of papers, uh, but, but, but I think it's quite typical of, of the longer term existing bodies like the ISO, uh, or the IEEE, that they have adopted governance law type principles that they, they have voluntarily done that partly to shore up their own legitimacy and influence and to reduce complaints and to have a place to channel the complaints towards. Uh, and I, I would should add there, and this, this, we're going to stop that as well as this kind of more abstract dominance law, which is partly enforced by regulators and national suits and things, uh, there's also a kind of meta-regulation of them by the World Trade Organization, by the TBT, uh, committee, which says, well, if you want. Countries want to be able to rely on that standard and say in our, in our national economy, uh, you have to, you have to build the thing this way. You can't have asbestos in this kind of thing. You have to, uh, uh, have this kind of, uh, seatbelt system in a car. Or this kind of whatever hundreds of thousands of standards countries are relying on. If you want to rely on an international standard, if, if it's properly made international standard, that's usually a defense against the argument that you're breaching fair and free trade rules. Uh, an importer or exporter from another country won't easily be a challenge on the grounds that your standard is an unfair imposition on trade. But, uh, the, the WTO TPT said has a, a, a stipulation about what would constitute, uh, a, a, a properly made international standard for that purpose, and that tends to require that the body who said it be open to anyone from all of the WTO member states at least, uh, and, and that it operate transparently, that doesn't make drafts available and be clear in advance what's going on there. Uh, and that it, um, it, it tries to reach what they call consensus. Uh, you've probably talked about this a lot, but what's meant by consensus here is a wonderfully the IEEE has a nice answer to this is yes, we work by consensus, and that means that at least 75% of people have got to vote for it. Uh, uh, so, so, but we have to listen to the others. Uh, so, so there's a lot of ways to deal with this, but there's a real kind of contestation there, and, uh, where bodies might not be complying with that, the WTO has been quite reluctant to allow their standard to be accepted, uh, and, and, uh, tuna labeling or sardines if you study those things. OK, that I think I should stop there with those glimmers of ideas, and I'll keep in mind that Kevin is online too and may want it. Add things as we go along, but I'll give it to you, Davisha. Uh, thank you. Uh, see, I sort of see him there. So just to sort of introduce him, uh, Professor Davis is the Uh, uh, a family professor of business at NYU School of Law, and as he's, he's sort of worked a lot with Professor Kingsbury. Right now, I gather he's in Jamaica, and he's joining us like from there. So, you're welcome. And if you would like to make a few remarks. Oh, well, thank you. Um, I, I'll just be brief. I'll say one thing about each part of Benedict's presentation, because um, I, I guess I'm very much a lawyer. I realized that as I was listening to him, so, uh, once I have a law degree, everything seems like, uh, it raises legal issues. Um, but on the question of the concept of a standard, I hadn't seen the concept note before, and I, I have to admit the, I was surprised by the statement that most standards are voluntary, um, and then sometimes they become mandatory because I guess. Uh, my reaction was to think that A lot of these standards that are initially developed in a sort of voluntary bottom-up way become mandatory. Um, Sometimes because they're incorporated in regulation, but often because they're incorporated in contracts. Um, so for instance, cybersecurity standards might be developed by a group of industry actors and so forth, but then they become legally binding on all sorts of people because they're incorporated into the contracts that they'll sign with other firms. So I, I guess I would just, um, emphasize that the, that in their. There might be more situations than than than you might think in which standards have some sort of legal force for the people who are, who are who who might want to comply with them, and that of course suggests that When you're trying to assess the efficacy of a standard or the case or the benefits of adopting a standard, you'd have to take into account the, the, the efficacy of the legal system, right? So that means, it's how, how easy it is to enforce those kinds of contractual conditions. So that was one reaction. And then on the second part of the talk about the legal regulation of standard setting, um. I thought, uh, there's another set of legal issues that arise that I would highlight which are just having to do with the internal governance of standard-setting organizations because sometimes that becomes very complicated, um, especially when it comes to setting technical standards, uh, where lots of industry players are contributed, contributing patented, uh, subject matter, resolving. Disputes about the terms upon which that those patented, uh, uh, uh, subjects can be, will be contributed and then remunerated. So the, the, basically, there's a compulsory licensing, uh, regime there that actually occupies. Thousands if not millions of hours of lawyers' time sort of resolving those disputes and often on an international level. And so, um, I, I just wanted to also highlight that issue that the sort of setting up a standard setting organization, whether domestically or on a transnational scale can raise these internal uh legal questions that can actually be quite challenging. Anyway, that, that, that was it, um, but I look forward to the, to the conversation. Thank you. Uh, I think we sort of begin with the last point that he made. So our thing is, is sort of saying that most contract, most standards between private parties that are embedded into contracts, they are, they are voluntary because the contract between the two private parties, that's, that's a voluntary contract. But your view is that if it is written into the contract, it is mandatory as per the contract, but the contract itself is not mandatory, right? So how much, but the thing is I, I spent a lot of time studying boilerplate contracts, and so often people don't have much choice but to adopt a contract. So yes, it's voluntary in the typical, in the, in the, the, the narrow formal legal sense, but um. In practice, it may not feel voluntary to the people who are bound by it, so I wouldn't uh place too much weight on that. Yeah, I, I think there's abound of legal theory behind this also, which is how much one could be a sort of voluntarist about law, and how much is law, a whole thick pattern of social practices, and norms and expectations, uh, intensified and formalized in some way, uh, versus how much is the choice, I choose to do this to transact or I don't, uh, so. And I think if you're a manufacturer of some textiles in Bangladesh or Mauritius or wherever it might be, Lesotho, uh, you've got your factory, you've got to sell the stuff somewhere. Uh, you also want your workers to have a job. So it's supply chain people say got to bring this, this, this, it seems to us at least a bit. A bit too fanciful to say, oh well, you could tell them I'm not making the contract because I don't like the standard you're imposing for something. So, uh so so I think we've really got to drag this the power system, but also The kind of stuff Kevin does, it's working on the standard contract used in the construction industry or architects or uh the, the terms of service of, of, if you use Instagram or whatever the terms of service or Microsoft Teams, there isn't any choice. That, that is the contract. So whatever the standards are there, are there. Uh, so, and, and all the rules, uh, whatever Microsoft could do with the stuff, uh, that's. None of us have anything to do with that. Pro. The World Bank doesn't have any negotiating power really with Microsoft or not much. So, so, uh, governments don't really, most of them. So, uh, so to us, well, let, let's look at the normativity, what's registered there, and especially when it's replicated in millions and billions of times in the case of some of these contracts, uh, it really gets thick with them. And, and those companies themselves, uh, the, the, the medium, the big players, they are also having to rely on their contracts. They need a standardized form because they might be securitizing that asset and making. Conservatives or they might be making a deal with somebody else. He's 2 million of these coming. They need to say, and they're going to be like this, and I know they're like this because all of our contracts require that, and we certified and so forth. So they get so thickly embedded that to us, at least these standards, it's not a very sharp distinction between, uh, voluntary and obligatory and most people's lives and practice, including most businesses and a lot of people in developing countries and, and the businesses going there. So that's, and a lot of and a lot of governments actually. Uh, so, uh, so, and I, I think that's probably a good way to see it because Uh, if one imagines that that's that, that what that that's the ordinary dynamic, then one can make the recommendations and theorize standards with that. As, as the default idea, not freedom and choice as the default. But by your criteria, every standard is then mandatory because, because, you know, I mean, the markets work through contracts. Contracts include standards. So markets are then basically based on mandatory standards. No, because some, some, some markets there's competition over the standards. Uh, one set of them are doing this and another one is doing that, and a new entrant comes, you see this in fintech, for example, uh, wherever there's something moving, there's often a variation in standards is one of the competitive features that it's advertised and, uh, you, you see, you see a significant variation, say, in some tech companies. Uh, try to emphasize that the privacy respecting features of theirs that it all stays on your phone or whatever it is, is that that's, there's a whole lot of standards backing that. The standards for app developers, access to, to address books, all these kinds of things on that. They're all that whole suite of standards is there, um, or the competition. Why is Android different from that there was there's a lot of difference in the standards also. So, uh, so, so, so I think some of us it's competitive and sometimes they're truly voluntary. What, what it is just a choice. We're going to. Do this or this or that way, uh, but I think we, it's probably there's some interesting examples of truly voluntary, uh, where there's a multiplicity of choices or some people are choosing not to do any of it. That's maybe nice to accept that is so, but to me that's a more of a rarity, uh, in terms of the importance in the world. I don't know Kevin wants to add anything. No, no, no we open it up. Yes, I have a quick question. Uh, great, amazing. Uh, one, concern is that in national laws, usually to determine the efficacy of the law, you conduct cost-benefit analysis of whatever standard you're setting for your national, uh, legislation is an international standard setting. Uh, how is that done? And have you thought about like what Uh, the standard setters think about the cost-benefit and Uh, also, the impact assessment, uh, boost the, uh, standard setting. Well, the, the, the, the, the standard setting bodies are starting to do this now to try to show their worth and all that, uh, and you may know that the Money anti-money laundering standards. There was a rather entertaining study of whether they, whether the benefits really outweighed the costs that are imposed on everybody. All these banks and things to know your customer, report this, that, that all over the world. Uh, what, uh, how much money laundering was reduced or terrorist financing was being reduced by that? What was the cost-benefits? So, it wasn't with that study of quite a few years ago, it wasn't so clear that the evidence that it was. Clearly a a good cost-benefit outcome was not so clear. So, uh, so I, I think a lot of this is unknown, and there's a tendency law has been like this and still is in some countries. The people involved in law, legislators and regulators tend to produce more and more, uh, just like organizations when they're formed, some of them cease to exist. So you tend to just get a more and more dense thicket and not much abolition. Uh, it's the deregulation agendas and that element of. You know, liberalism, etc. but, uh, it's, it's, it's struck at that, uh, and as well as the efforts to reform government and digitize and rationalize these things, make, make, make an algorithmic or AI, uh, like next year's WRPR will be about, I think. So I think it's an interesting question whether there's going to be a destandardization. It demurror deregulation. People aren't talking about that yet because there's still such an entrancement of standards, uh, and, and, and this was the case with law a few decades ago, but people thought almost all laws good, you know, except some human rights thing or something. But then after a while, you know, maybe that's not so clear. And so, so I think that's it still to come, all of that cost-benefit question. But again, Kevin may know more about that. No, I was actually struggling to think of instances of what I think of the standards that have been submitted, that have been subjected to cost-benefit analysis. Actually, it's um it's not the It's not a common standards have been withdrawn. Yes, yes, but, but often that's in the context of a, of a technological change or something, uh, or occasionally a big new entrant, uh, but once they get embedded, I think a lot of them are still there, probably, and, and there's another interesting question with law, legal theory at least. You get old laws still on the books and there's a legal struggle. Would you still apply that law? And often you find workarounds where people are ignoring it or whatever. Uh, some regulatory bodies have that and in lots of countries. There's old rules and the administrators just aren't really applying, or they sort of, yeah, they have, but actually you follow this practice. So I think that is probably happening with standards too. They're sort of destitute of old standards. They're not abolished. They're just not. Followed and it's a really interesting question, how does that work? So since we have a limited time, why don't we take a, a few questions and then you can answer, yeah. Yes, it is. Hi. Uh, thank you. uh, Professor, thank you for your presentation, and actually I wanted to sort of, uh, uh, support the argument that you made, uh, with regards to, uh, the multiplicity of standards and how they can go into each other. Uh, I think the case of, uh, JSM versus the CDNF, so it's quite, uh, a good, uh, fitting example for this. In this case, I, I'm from London. I used to be a director of ICT back in the days overseeing the national, uh, ICT sector. And uh at the time as we're developing the national infrastructure inside the world we had obviously a number of vendors that would come with us some that will come Jason some will come that will see a DMA they will say we kind of took both. But uh sitting in the one turned off. Uh, of the, I can put it that way. So fast forward, uh, I had the benefits of working here on emerging tech, uh, AI blockchain, and I had the opportunity of seeing how the standards, the standard setting efforts were being done on this technology and how inclusive seem they, they seem to be, um, and one of the things that I thought that would be also useful to emphasize is actually the, the, the lack of leverage that, uh. Um, developing, developing countries have the standard setting part because they tend to be formulated very far away at the time because I mean with technology now we can do Zoom calls and things like that they should go back in the days we need to go to Geneva and attend all these meetings and that. Certainly reduce the level of influence that developing countries can have, and even the knowledge of how to participate in those, uh, standard setting, uh, type of, uh, meetings, uh, I thought that this would be interesting to contribute to. However, one thing that, uh, a question that I had for you since you mentioned governance, how should the governance look like going forward for the standard standard setting bodies because that would be useful to have a better. Yes, I have a similar question. OK. So let's move on now. So, yes. Um, thank you, Professor Ginsberg, for your presentation. My question is in relation to trade and standards. What are your thoughts on certain standards being like a trade barrier, not, um, trying to sanitize standards as an example of, you know, non-tariff barriers come to mind. OK, so, uh, so, so there's an enormous issue how, how 8 billion people in the world are going to participate fairly in the standards process. Uh, so the history of this, lots of countries don't have still a national standards body really or barely, uh, and it's very difficult to adopt some external standards partly for the because of the network effects and to make it. Technologies and partly just this year and developing them it's huge for efficient. I think you do see an interesting move towards regional standards which there's quite a long history of this and different regions are different. Some are really quite It, it's quite, quite a, quite a lot of energy goes into them, but of course it's a problem of funding it, uh, and, uh, and it, and if you fund it, it's very difficult to do other than getting industry to pay for it, uh, which usually got to mean it's, it's an agenda. So, uh, so, I, and I think the, uh, there's also though, the expertise needed. The government's really struggle with this in general, uh, in some of tech areas and And there's this interesting tension between the people who are really in the industry and know it, um, uh, and, and the idea of governing it from outside and so there's, there's just a huge lot of challenges. And so I think quite likely it's going to be a question of, are they going to be plausible proxies. People who players in this who are big enough knowledge and who sort of stand in the place of the interests of at least a lot of developing countries, not everybody, it's not perfect and may be very flawed, but something like that. I think a lot of developing companies have wanted to shift the standard setting firmly into the more intergovernmental things like ITU, for example, uh, whereas a lot of other people, in the US, for example, the industry want to do it at maybe private and just get the international bodies to ratify it. I think what, uh, historically that, uh, North Americans, the Europeans, a few others have dominated Japan, and there's, I think there's really, of course, uh, China is now a hugely important standard setting and, and has a fantastic expertise in this, a lot of, a lot of people trained in this, a lot of industries producing standards, uh, and in some areas have really tried to take a lead. So I think what may happen is there's going to be more of a multiplicity of standards are offered to developing countries, uh, but often they're going to be tied into financing and contracts and this project and so forth, so. Uh, I think it's really a matter of how much for developed countries it's what it showing, is there enough at stake on some of these things that it makes sense for some developing countries to work as a collectivity to develop their own idea of standards, uh, and, and this, this happened a few times already. Uh, it's not going to happen in every sector, but I think that that will be the large issue about governance as I see it, um, the, the trade barriers question. Yeah, it, it, it, it's very tempting if you have a big enough economy, uh, to use standards as a, and the idea of the WTO when it was war. Flourishing form it may maybe yeah, uh, is to try to control that. The TPT committee has thousands of, of, uh, review processes of different different players objecting to this or that, and the committee's quite scrutinized quite in detail for those things. So one of my former students actually has written a forthcoming book on, on, on efforts to require labeling of foods for nutritional things and, and also not to use cartoon characters. Uh, and, and, uh, in Chile it succeeded partly because, uh, Balet was, was a pediatrician, I think when she was president of Chile, really determined. Indonesia, they tried it and, and were really defeated by the food lobby, uh, so, uh, and, and, and, and, but the suspicion that, that what food lobby said internationally was this is a protectionism. Uh, that this is going to make the foreign things less exciting or it's or the labeling is going to be, etc. So, uh, so I think a lot of this is those kind of struggles, and part of this is the presence of civil society, NGOs, other kind of players at these, and sometimes they themselves are demanding problematic standards actually also from this rather single issue viewpoint. So, so I think that's what there is to say, and all of this needs better regulation, uh, but usually. On these, you're thinking, you have to think it's very large scale, I think. So we have, uh, one last question. Oh, please, uh, thank you very much for your presentation. Um, so standards is a terminologically controversial notion that, that's for sure. But when we, we think about, you know, multilateral development, uh, institutions, what should be the key feature of the notion of standards? Who, how should we think about standards and who are the standard setting bodies? And you mentioned, you know, so the role of, of gall and this kind of. process mentioning the GBT agreement in committee and you know um requiring participation. Do you see a similar process or uh mechanism in the, in the system of development in the case of the World Bank, the fact that the standards are then integrated in a legal agreement. Uh, so at the moment it's, it, there are these plenary type bodies with a general competence like ISO or IEC, uh, and, uh, a handful of others, uh, um, and, and then there are central bodies who are focused on something or the other, uh, so, uh, and, and those, uh, so, so ITU is dealing with. Telecom services, etc. or or someone's doing food or so there's that kind of sectors and then there are the regional bodies which are some combination of those and then the industry associations who tend to be in a sector, but often it's a it's a conglomerate type situation. Um, and, uh, there, there are single companies who make standards. Some of the very big tech players, uh, Google, Huawei, Microsoft that really almost define the standards themselves in some areas, and then others, all the other people in the huge ecosystem and kind of go along with it. So, I think the way to to look here is to look at who, who is setting a standard which anyone is listening to and, and whoever it is, however they're constituted, wherever they exist, what scope, what membership, that then to treat them all in the same zone of these, these approaches to, to the better regulation of standard setting ought to apply to them. That, that's roughly what the government's law spirit is about and not about. Uh, and I don't think there's any, I, I think the, the cost of trying to standardize standardization, uh, would, would across different sectors, different kinds of industries, different technologies, different situations of regions, different development, different ecosystems, different climates, uh, literally climates, different environments, planetary, so the cost of trying to standardize all of that would be way more than the value gate. In fact, I think a lot will be lost. So my own feeling is that although it's one. chaotic. What this is all we, we talk about a Jack Jackson Pollock painting splat here, splat there, a right here, nothing there. That's what it's like. That's what the global missile space looks like. And this you really see it, and I think we have to learn to live with that and to act and theorize and play in it, not to try to impose an order on it which isn't going to be there. Uh, and I think we, we see the struggles about this with AI standards hugely at the moment. Uh, it's a whole series of false starts, more or less you would say. Uh, uh, it sucks because one moment it's going to be AI safety, AI safety insurance within 6 months they've changed the names. They're opted out something else, the AI. So one moment it's going to be model scrutiny and all that. Next moment model's going to be out in 8 days. So, so there isn't any, it's, there's just no possibility. It's really there. You're talking about the social norms of the players plus a bit of heavy breathing by whatever governments get organized. Thank you, uh, so much, Professor Kingsbury. Pleased to join me in thanking him. Professor Davis, thank you. Well, thanks all. And anyone who has questions, email me if you want to you or email Kevin Davis if you want someone who actually knows something. Uh, and actually like we have experts in the WTO side to Rob House and others there, uh, but, and I'm going to be hanging out here, but if you have those who are in the room want to ask any questions afterwards, most welcome. Thank you.
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In this World Development Report 2025 seminar series, Benedict Kingsbury (Vice Dean and Murry and Ida Becker Professor of Law, New York University Law School) discusses "Standards and Law: Key Issues in Development Contexts" with chair Devesh Kapur, Academic Lead, World Development Report 2025.
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