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Voluntary product standards in globalized markets : an analysis of the US, EC and Swiss antitrust approaches towards private standardization in a WTO perspective
The current study aims at presenting the approaches followed by US, EU and Swiss antitrust authorities towards private standardization issues. Although the main focus of the study will thus be on competition law, it must be stressed that as a matter of public international law at least, national competition authorities have to comply with WTO law dealing with standardization issues. In particular, under the TBT, WTO members have contracted a specific framework (the Code of Good Practice) for the disciplining of SSOs. The multiple issues arising out of private standardization cover a wide variety of situations. For example, a Standard Setting Organisation (SSO) might refuse to grant access to a standard to a market actor, or a dominant firm might impose a standard which de facto excludes competitors from a market. Moreover, as technical standards often include technologies protected by a patent, the conditions for the use of such a technology by third parties must not be any more anticompetitive than necessary. Such cases might be analyzed under competition rules through the control of agreements between enterprises or the control of unilateral conduct of trade associations or leading market actors. Such competition law concepts as refusal to deal, raising rivals’ costs, and essential facility play a central role in the comprehension of anticompetitive effects of standardization. Consequently, the study of competition law issues related to standardization requires the knowledge of a very broad range of competition law concepts (with the notable exception of merger control tools, which play almost no role in this context.) Moreover, the present study presents the reach of each antitrust system. In today’s globalized markets, it is critical to understand which competition system might assert jurisdiction over a particular issue. The tendency of each of these three competition systems to become applicable extraterritorially often takes place through a variation of the so-called “effects doctrine.” A detailed analysis of this doctrine is necessary given that the influence of standards on competitive conditions may extend beyond national boundaries. Accordingly, the structure of the study will be as follows: Chapter 2 will offer a brief overview of the economic theory on standardization, thus providing the necessary conceptual tools for the analysis. Chapters 3 through 5 constitute the core of this study in presenting in detail the US, EU, and Swiss approaches towards standardization. Chapter 6 will present an overview of the current discussion at the WTO level, while Chapter 7 reflects our conclusions. True to the theme of the present study, the three chapters analyzing the approach adopted by US, EU, and Swiss antitrust authorities towards standardization have been, well, standardized, in that they follow a similar structure. All three chapters begin with a very brief presentation of the historical development of national/regional antitrust statutes (Section 1), which is then followed by an overview of the delimitation of scope of these statutes (Section 2). The study of each antitrust system's exemptions to the reach of antitrust laws is of particular interest for a comparative approach such as the one followed in the present study. Indeed, although one might notice a great degree of convergence in relation to material concepts, exemptions have been left untouched by the pressures of convergence, as they differ from one jurisdiction to another. Arguably, this might be explained by the fact that exemptions often reflect industryspecific lobbying and are rarely grounded on sound, long-term economic arguments. The third section will offer a general presentation of the main substantial national/regional antitrust concepts used in the standardization disputes. The subsequent section (Section 4) is dedicated to the analysis of the case law on standardization issues. Thus, the analysis of the substantial legal provisions is divided into two parts. This division is necessary because the case law on standardization is not a self-contained regime, but rather reflects the application of general antitrust concepts to the specific context of standardization. Moreover, the antitrust case law on standardization issues often does not encompass all the types of anticompetitive behavior in which enterprises might engage in the context of standardization. It is thus necessary to refer to a general presentation of antitrust concepts, including situations which have not yet been decided in the case law dealing with standardization issues. With the adage of Judge Basdevant in mind, whereby legal systems are to be judged by their system of remedies, the fifth section of each chapter is dedicated to the remedies available in an antitrust dispute. The last section offers a quick introduction to the procedures and the enforcement agencies of each antitrust system. Finally, Section 7 briefly summarizes each chapter.