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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