PRIVATE STANDARDS AND THE WORLD TRADE

ORGANISATION

INTERNATIONAL TRADE LAW

Submitted By: Submitted To:

Navonil Datta (1216) Mr. Bipin Kumar

B.A. LL.B.(Hons) Faculty of law

VI Semester
 ACKNOWLEDGEMENT

On the completion of this project I find that there are many people to whom we would like to express
my gratitude, since without their help and co-operation the success of this educative endeavour would
not have been possible.

I welcome this opportunity to express our sincere gratitude to our teacher and guide, Mr. Bipin Ku-
mar, who has been a constant source of encouragement and guidance throughout the course of this
work.

I am grateful to the IT Staff for providing all necessary facilities for carrying out this work. Thanks
are also due to all members of the Library staff for their help and assistance at all times.

I am also grateful to all our friends and colleagues for being helpful in their differences and for their
constant support.
 TABLE OF CONTENTS

ACKNOWLEDGEMENT 2

INTRODUCTION 4

EMERGENCE OF PRIVATE STANDARDS 6

SCOPE OF PRIVATE STANDARDS IN WTO AGREEMENTS 9

LEGAL PROVISION IN WTO AGREEMENTS 11

ATTRIBUTING LIABILITY TO MEMBER STATES 12

SAINT VINCENT AND GRENADINES AND EUREPGAP 14

THEMES DISCUSSED IN THE SPS COMMITTEE 16

CONCLUSION 18
INTRODUCTION
The past decades have witnessed the emergence and proliferation of private standards. While there

has not yet been an internationally recognized definition, private standards generally refer to any

requirements that are established by non-governmental entities, including wholesale or retail stores,

national producer associations, civil society groups, or combinations of them.1 They contain rules

mainly related to food safety, environmental protection, animal welfare, fair trade, labour conditions,

human rights protection, and others. Private standards are standards designed and owned by non-

governmental entities, be they for profit (businesses) or not-for-profit organizations. Whereas gov-

ernmental standards (usually called ‘technical regulations’) may either be mandatory or voluntary,

private standards are voluntary by definition. The TBT Agreement distinguishes mandatory standards

(or technical regulations) from voluntary standards as: “A standard is a document approved by a

recognized organization or entity, that provides, for common and repeated use, rules, guidelines or

characteristics for products or related processes and production methods, with which compliance is

not mandatory under international trade rules. It may also include or deal exclusively with terminol-

ogy, symbols, packaging, marking or labelling requirements as they apply to a product, process or

production method.” In contrast, a technical regulation is defined as: “a document which lays down

product characteristics or their related processes and production methods, including the applicable

administrative provisions, with which compliance is mandatory. It may also include or deal exclu-

sively with terminology, symbols, packaging, marking or labelling requirements as they apply to a

product, process or production method.” Sectors addressed by private standards are agriculture, for-

estry, aquaculture, apparel, and fair trade, but other sectors are experiencing the emergence of such

standards as well. With the advance of globalization this type of standards has increasingly applied

to international trade. Although no figures are available, it is estimated that presently a substantial

share of agricultural exports have to comply with various types of private standards. Yet, the multi-

lateral trade rules that apply to technical regulations have so far not been applied to private standards.
While private standards may provide a stimulus to improved production practices and performance

in exporting countries, and potentially provide a competitive advantage to complying producers, the

proliferation and increased influence of private standards has become an increasing concern for sup-

pliers, in particular those in developing exporting countries.

EMERGENCE OF PRIVATE STANDARDS
The concept of private standards starting emerging in the 1900’s. These schemes or standards served

to act as guidelines or regulations which were to be followed for passing products through the supply

chain. These new kind of non-state governance initiative started to emerge, namely private standard-

setting or certification initiatives, which aimed to govern markets and the way in which products are

made throughout the supply-chain.1These initiatives aim to implement standards, i.e. directives sug-

gested or imposed by a rule-setting actor to a rule-abiding actor on how to act in a given context.2

The unique feature about them was that these standards were developed and enforced by non-state

actors. Private standard setting initiatives were developed by corporations, NGO’s or new coalitions

of NGO’s and multinational corporations. Despite their non-binding nature, private standard settings

started emerging in various sectors. Private standard setting initiatives started to emerge in different

economic sectors (food production, textiles, forestry) and with regard to the management of different

aspects of production ranging from quality control issues to social and environmental issues including

the management of biodiversity and biosafety. Private standard setting initiatives were developed by

corporations, NGO’s or new coalitions of NGO’s and multinational corporations. Several types of

private standards initiatives exist and they differ on many different parameters, inter alia, with regard

to how standards are developed, how they are governed and how they are implemented.3

The passing of the United Kingdoms Food Safety Act, 1990 saw the emergence of the first private

standards. Section 21 of the act provides for the defence of due diligence. As per the section, a person

can escape liability if he can show that he had taken all precautionary measures and exercised all due

diligence to avoid the commission of the offence by himself or by a person under his control. The

1
Jan Wouters, Axel Marx, Nicolas Hachez, ‘PRIVATE STANDARDS, GLOBAL GOVERNANCE AND
TRANSATLANTIC COOPERATION’
2
K. ABBOTT & D. SNIDAL, “International ‘Standards’ and International Governance”, Journal of Euro-
pean Public Policy, Vol. 3, 2001, p. 8.
3
K. W. ABBOTT & D. SNIDAL, ‘The Governance Triangle: Regulatory Standards Institutions and the
Shadow of the State’, in W. MATTLI & N. WOODS (eds.), The Politics of Global Regulation, Princeton,
Princeton University Press, 2009.
possibility of being held liable did prompt a corporate response which resulted in the development of

different private standards initiatives. These initiatives were first developed for the UK retail market

(BRC-Global Standard). Later they spilled over to Europe via EurepGAP. EurepGAP which trans-

formed itself into GlobalGAP is now one of the leading private standards initiatives in Europe in

which several major retailers and food processing companies are involved.4

In the United States private food standards were until recently less prominent.5 US corporations and

consumers have usually relied on the Food and Drug Administration (FDA) for ensuring quality of

products and ensuring a high level of food safety. However recent trends have shown that this practice

is slowly changing. In recent years several initiatives have also emerged in the United States and new

initiatives are developing regularly.6 This change started when Walmart in 2006 announced that it

would buy fish only from MSC certified suppliers. It also provided a period of three to five years for

non certified suppliers to get certified. Given the size of the market that Walmart commands in terms

of fisheries and groceries, there were widespread ripple effects of this policy change.

The rise of these private standards can usually be attribute to a few driving factors. These driving

factors are :

The emergence of global value chains coordinated by large corporations either as system inte-

grators or as key buyers (for example, retailers and supermarket chains.

World trade and production have increasingly become structured around “global value chains”

(GVCs). A value chain identifies the full range of activities that firms undertake to bring a product or

a service from its conception to its end use by final consumers. Technological progress, cost, access

4
Supra note 1.
5
H. SCHEPEL, The Constitution of Private Governance. Product Standards in the Regulation of Integrating
Markets, Oxford and Portland, Hart Publishing, 2005, p. 145.
6
H. GOW, ‘Global Agrifood Industry Development and Private Standards’, paper presented at the work-
shop ‘Globalization, Global Governance and Private Standards’ Leuven, 4-5 November 2008
to resources and markets and trade policy reforms have facilitated the geographical fragmentation of

production processes across the globe according to the comparative advantage of the locations. This

international fragmentation of production is a powerful source of increased efficiency and firm com-

petitiveness. Today, more than half of world manufactured imports are intermediate goods (primary

goods, parts and components, and semi- finished products), and more than 70 percent of world ser-

vices imports are intermediate services. The emergence of GVCs during the last two decades has

implications for the impact of trade and investment barriers both on the country implementing the

measures and on the global economy. The structure of the food markets has changed along with

globalization and nowadays hands a premium to large global actors. The number of key actors in the

food chain has reduced as their size grew. Major retailer groups have particular influence, as they are

the ‘gatekeepers’ of the food markets: they decide which products they will offer to their clients, and

therefore which products will access a defined market. Such concentration and increase of bargaining

power allow these retailer groups to impose practically any condition they want on their suppliers

and contractors, from payment deadlines to the safety features of the food products they sell.7 Stand-

ards can be used as a means to coordinate the consistency of requirements regarding inputs, quality,

working conditions, environmental impacts, and so on, throughout GVCs

Increased consumer awareness of the impact of food on health.

With the advent of globalisation, more and more consumers are becoming aware of health impacts of

food. The ever-increasing consumer concerns about food safety and thus the strengthening of regu-

lation on food safety, both at the national and the EU levels, may account for the emergence of private

food standards.8 Growing societal and consumer demand for more responsibly produced goods and

information about the production and processing conditions of products. The latter resulted in an

7
Organisation For Economic Co-operation And Development, Directorate For Food, Agriculture
And Fisheries, Committee on Agriculture, Working Party on Agricultural Policies and Markets, ‘Fi-
nal Report on Private Standards and the Shaping of the Agro-Food System’, 31 July 2006, OECD
Doc. No. AGR/CA/APM(2006)9/FINAL, pp. 10-11
8
Grace Chia-Hui Lee, Private Food Standards and their Impacts on Developing Countries, availa-
ble at www.trade.ec.europa.eu/doclib/docs/2006/november/tradoc_127969.pdf
increasing number of consumers and companies basing purchasing decisions on ethical criteria and a

notion of corporate responsibility. The brand value of a product greatly depends on the quality it can

produce. The presence of certified standards assures consumers of high quality of products. Further,

several consumers prefer buying products that are less harmful for the environment. Thus standards

signifying an efficient production method is preferred not only by consumers but also by corporations

themselves. There is a social obligation and pressure from different groups on corporations to invest

in greener production methods. There is an implied corporate social responsibility. Awareness of the

consumers has thus lead to the rise of private standards to quite an extent.

SCOPE OF PRIVATE STANDARDS IN WTO AGREE-

MENTS
As mentioned earlier, private standards are regulations and schemes enforced by private entities.

Every member state of the World Trade Organisation is required to respect the rules and principles

laid down in its covered agreements. In case of a breach of these rules by any other member state,

they can seek redressal through its dispute resolution mechanism. But private entities are not members

of the WTO. Therefore the rules and regulations laid down in WTO agreements are not required to

be followed by these entities. The lack of legal regulation allow private entities to control the shelf

access of products on the grounds of the how they were produced. The exponential growth and power

of private entities means that a private entity’s buying policy can effectively create barriers to

trade.Where an entity’s buying power is significant enough, it can effectively restrict market access

to a country for a particular product, thus potentially having as much power as a Member State and

therefore as large an effect as a State enforcing a trade restriction9. For example, in France in 2012,

five supermarket companies held 74.7 per cent of the market share.If these supermarkets were to

9
Georgina Beasley, A CASE OF DOUBLE STANDARDS:
THE WORLD TRADE ORGANISATION AND THE PRIVATE SECTOR, available at
http://www.otago.ac.nz/law/research/journals/otago085103.pdf, last seen at March 16
require that all wine was certified ‘bio’, it would create an effective trade barrier for countries export-

ing uncertified wine. Similarly, if they were to require all cheeses to be sourced domestically, this

would create an effective trade barrier for all other countries exporting cheese.

The Sanitary and Phytosanitary (SPS) Measures Committee sought to define Private Standards and

examine the extent to which they could be subjected to the WTO rules and regulations. However,

there is much ambiguity that still exists and its hard to agree that a proper definition for standards

applied by private entities has been reached.

The SPS agreement between member states was negotiated by governmental food safety, plant and

animal health regulators to impose significant disciplines on what restrictions can be applied to prod-

ucts in international trade under the pretext of health regulation and protection. The main essence of

the agreement was to ensure the implementation of measures which are essential for health protection

along with the provision of scientific evidence to support the necessity of these measures. The SPS

agreement also contains a number of provisions to ensure the transparency of sanitary and phytosan-

itary requirements. If any member state wants to modify the SPS measures, they must give an advance

notice of the same and also provide documents supporting the change through scientific evidence and

risk assessments. In the WTO, sanitary and phytosanitary measures are subject to a different set of

legal obligations than what is applied to quality and environmental measures or measures adopted to

avoid the deception of consumers. These latter types of measures are covered by a different legal

framework, the Agreement on Technical Barriers to Trade. The existence of these two agreements

pushes governments to identify the objectives of their import requirements, and to more clearly sep-

arate and distinguish between requirements imposed for health protection and those imposed for other

purposes.10

10
Christiane Wolff, PRIVATE STANDARDS AND THE WTO COMMITTEE ON SANITARY
AND PHYTOSANITARY MEASURES, available at http://www.oie.int/doc/ged/D6061.PDF
LEGAL PROVISION IN WTO AGREEMENTS
The provision of the SPS Agreement that appears potentially to relate most directly to the issue of

private standard-setting and implementation is Article 13 on implementation:

Members are fully responsible under this Agreement for the observance of all obligations

set forth herein. Members shall formulate and implement positive measures and mechanisms

in support of the observance of the provisions of this Agreement by other than central gov-

ernment bodies. Members shall take such reasonable measures as may be available to them

to ensure that non-governmental entities within their territories, as well as regional bodies

in which relevant entities within their territories are members, comply with the relevant pro-

visions of this Agreement. In addition, Members shall not take measures which have the

effect of, directly or indirectly, requiring or encouraging such regional or non-governmental

entities, or local governmental bodies, to act in a manner inconsistent with the provisions of

this Agreement. Members shall ensure that they rely on the services of non-governmental

entities for implementing sanitary or phytosanitary measures only if these entities comply

with the provisions of this Agreement.

The preamble of the Technical Barrier to Trade states its central objective as:

to ensure that technical regulations and standards, including packaging, marking and la-

belling requirements, and procedures for assessment of conformity with technical regula-

tions and standards do not create unnecessary obstacles to international trade.

Article 4.1 of the Agreement states that:

“….shall take such reasonable measures as may be available to them to ensure that local

government and non-governmental standardizing bodies within their territories, as well as

regional standardizing bodies of which they or one or more bodies within their territories

are members, accept and comply with this Code of Good Practice. In addition, Members
 shall not take measures which have the effect of, directly or indirectly, requiring or encour-

aging such standardizing bodies to act in a manner inconsistent with the Code of Good

Practice. The obligations of Members with respect to compliance of standardizing bodies

with the provisions of the Code of Good Practice shall apply irrespective of whether or not

a standardizing body has accepted the Code of Good Practice”11

The term “nongovernmental standardizing bodies” is not defined in the Agreement, but the term

“nongovernmental body”, a wider term that plausibly encompasses it, is defined in S 8 of Annex 1 to

the TBT Agreement as follows:

Body other than a central government body or a local government body, including a non-

governmental body which has legal power to enforce a technical regulation.

The important term to focus on is ‘legal power’. A non-governmental body will have the legal power

only when the government of the state confers it the same. Therefore, if a corporation by the virtue

of its dominant position in the market applies private standards and effectively forces retailers and

suppliers to conform to them, it would be in contravention to the provisions of TBT

ATTRIBUTING LIABILITY TO MEMBER STATES

A private entity’s ‘freedom’ from international trade law is not absolute. Although the WTO’s cov-

ered agreements do not define the scope of acts and admissions attributable to Member States, rec-

ommendations and rulings of the DSB provide some guidance.109 WTO and GATT panels have

referred to the International Law Commission Articles on State Responsibility of which Article 4

11
The Code of Good Practice (CGP) for the Preparation, Adoption and Application of Standards, is
Annex 3 of the TBT Agreement
provides that the conduct of governmental organs, persons or entities is attributable to the State when

they are acting as an agent of the State. That is, acting under its direction, instigation, or control.12

Also, in the case of Japan – Film the Panel recognised that the WTO’s covered agreements do not

deem all acts of private parties as non-governmental and thus outside of the scope of the GATT

1994.13

In Korea – Various Measures on Beef the actions of retailers were attributed to the Korean govern-

ment as through domestic law the government had encouraged retailers to act in a way that was in-

consistent with WTO obligations.14

In Japan-Semiconductors, a GATT panel held that activities not performed by a state but which can

be attributed to it should come under the ambit of the GATT. The key to attribution is the response

to the question “would the challenged behaviour have occurred absent incentives by the government

to behave in this way”? Governments thus do not need to compel behaviour. It suffices that they

“incentivize.

However, from these precedents we notice that even though the actions of private entities can be

questioned, the liability of the same falls on the member states. Thus private entities can still operate

without the concern of international ramifications.

As it is quite evident, there is a a lack in conceptual clarity about private standards in the WTO to

quite an extent. But this lack of clarity first came to light before the WTO in the St. Vincent and

Grenadines and EurepGAP15 case.

12
State Responsibility; Draft articles on responsibility of States for internationally wrongful acts
[2001], vol
2, pt 1 YILC 26 at [76]
13
Panel Report, Japan – Film above n 109, at [10.56].
14
Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef,
above n 15
15
EurepGAP is now called GLOBALGAP
SAINT VINCENT AND GRENADINES AND EUREPGAP
In 2005, Supermarket chains in the United Kingdoms made major changes to their standardisation

procedures. They decided to only stock fresh products certified by EurepGAP. Therefore producers

in counties who did not the required certification from EurepGAP would have restricted shelf access

to these supermarkets. This is was an effective trade barrier for such countries.

A communication was sent to the SPS Committee by Saint Vincent and Grenadines for further dis-

tribution to the member states of the WTO. St. Vincent and Grenadines claimed that “….However,

the proliferation of standards developed by private interest groups without any reference to the SPS

Agreement or consultation with national authorities is a matter of concern and presents numerous

challenges to small vulnerable economies. These standards are perceived as being in conflict with

the letter and spirit of the spa Agreement, veritable barrier to trade and having potential to cause

confusion, inequity and lack of transparency. It is the position of St. Vincent and Grenadines that

some industry private standards do not conform to the provision of the SPS Agreement.”16

St. Vincent and Grenadines was supported by other developing economies which earned a much share

of their GDP through export of fresh products such as Jamaica, Peru, Ecuador and Argentina. They

expressed concern about the EurepGAP and the devastating effect it was having on their banana

exports.

The EC replied to their concern by taking the stance that since the EurepGAP was a private entity, it

was outside their jurisdiction and it could take no action on the measures adopted by it. Peru and and

16
The Regulation of International Trade: The WTO Agreements on Trade in Goods, Petros C.
Mavroidis
Mexico subsequently brought up the issue of the interpretation of the SPS Agreement and the com-

mittee consequentially discussed private standards in 2005.

One of the foremost issue of discussions was the scope of ambiguity in Article 13 of the SPS Agree-

ment. Article 13 of the SPS Agreement provides that “non-governmental entities” must comply with

the Agreement. However, what constitutes as a “non-governmental entity” is not defined by the

Agreement nor has it been defined by any WTO body. This is analogous to the TBT Agreement which

includes non-governmental entities without defining the term. Therefore, a conclusive definition un-

der one of the Agreements would likely be used to interpret the other in order to achieve consistency.

This would bring radical change within the private sector.17

In the course of SPS discussions, Argentina stated18

If the private sector was going to have unnecessarily restrictive standards affecting trade

and countries had no forum where to advocate some rationalisation of these standards,

twenty years of discussions in international fora would have been wasted.

This implies that certain member states were of the opinion that national governments should be held

liable for the actions of private entities. However, Member States have also acknowledged that private

standards can encourage improvement that can lead producers to gain access to high-quality mar-

kets.19

Broadly classified, the SPS committee’s discussion on private standards focused on three main

themes.

17
A CASE OF DOUBLE STANDARDS: THE WORLD TRADE ORGANISATION AND
THE PRIVATE SECTOR, GEORGINA BEASLEY
18
World Trade Organsiation, Note by the Secretariat G/SPS/R/37/Rev.11 (18 August 2005) (05-
3684) Committee on Sanitary and Phytosanitary Measures “Summary of the meeting held on 29-30
June 2005”
19
Christiane Wolff “Private standards and the WTO Committee on sanitary and phytosanitary
measures.”
THEMES DISCUSSED IN THE SPS COMMITTEE
1. Market Access: Since the large retailer groups setting private food safety standards act as ‘gate-

keepers’ on (western) food markets, complying with their standards has in many cases become a

de facto mandatory requirement for accessing such markets. The problem is aggravated when the

private standards, as it is often the case, overtake public food safety regulation. Moreover, as per

the SPS Agreement, public regulation may not be used for protectionist purposes and must nor-

mally be based on science and/or scientific principles, which critics allege may not be the case

for private standards.20 Some Members have taken the view that standards set by the private sec-

tor can help suppliers improve the quality of their products and gain and maintain access to high-

quality markets. Other Members have argued that private standards can be both more restrictive

(e.g. requiring lower levels of pesticide residues) and more prescriptive (e.g. accepting only one

way of achieving a desired food safety outcome) than official import requirements, thus acting

as additional barriers to market access.

2. Development : Developing countries have pointed out that complying with private standards is

very burdensome, as such standards often require significant upgrades in production facilities and

costly certification procedures, involving several inspections by independent reviewers. These

cost implications often mean that small and medium food producers in export markets (especially

in developing countries) who are not able to pay the price of compliance, are de facto excluded

from the potential supply pool of most wholesaling and retailing actors in numerous major mar-

ket. 21Many Members have expressed the concern that the costs of complying with private stand-

ards, and the additional cost of certification, sometimes for multiple sets of standards for different

20
G. STANTON, ‘Private SPS Standards – The WTO Perspective’, Presentation Given at the
Workshop ‘Globalization, Global Governance and Private Standards’, Leuven, 4-5 November 2008
21
‘Private Standards Schemes and Developing Country Access to Global Value Chains: Challenges
and Opportunities Emerging from Four Case Studies’, 23-25 October 2006, OECD Doc. No.
AGR/CA/APM(2006)20, pp. 16 and 20.
 buyers, can be a problem, especially for small-scale producers and particularly (but not exclu-

sively) in developing countries.

3. WTO law: While some Members are of the view that setting standards for the products they

purchase is a legitimate private-sector activity with which governments should not interfere, oth-

ers insist that the SPS Agreement makes governments in importing countries responsible for the

standards included in the scope of this Agreement and set by their private sectors. The latter are

concerned that these standards do not meet WTO requirements such as transparency and scien-

tific justification of sanitary and phytosanitary (mainly food safety) measures and are more trade-

restrictive than necessary to protect health.

Despite the negotiations that ensued the EUREGAP controversy, the matter has not been resolved.

The debate is still a live issue in WTO negotiations, as well as in other organisations such as the

Organisation for Economic Co-operation and Development, the World Bank, the United Nations

Conference on Trade and Development and the EC.22If negotiations result in governments having

responsibility for private entities under the SPS Agreement, it would be an anomaly for them not to

have an equivalent responsibility under the GATT 1994 and TBT Agreement. The confusion sur-

rounding the SPS Agreement is true of the others. A change of the scope of one Agreement is likely

to result in change for all.

22
“WTO/SPS Private Standards” (2009) European Union <www.ec.europa.eu>.
CONCLUSION
In light of the aspects of private standards and the WTO discussed before, the first action to fill the

lacunas in the concept of private standards and WTO legal obligations seems to be quite clear. The

first action would be to provide a working definition of ‘private standards’. The 2012 proposed defi-

nition of the term was:

SPS-related private standards are requirements related to food safety, animal or plant life

or health developed [and] [and/or] applied by [entities other than governments] [non-gov-

ernmental entities]

There has been much disagreement to this proposed definition. Developed countries are usually of

the opinion that private standards should not be covered by the SPS Agreement. Several members

opposed the use of the term ‘non-governmental entities’. This is because of the Article 13 of the SPS

uses the same terminology and it would imply that private standards had always been under the ambit

of WTO rules. WTO members on the other side of the debate prefer the terms “developed and/or

applied” as they believe that a majority of the problems related to private standards arise from the

“development” process (e.g. lack of transparency and stakeholder participation) and from the “appli-

cation” process

When the Committee failed to make progress in regular meetings, they created an “electronic working

group” (E-WG) to consult on a definition. After a number of rounds of consultation, the E-WG pro-

posed in September 2014 that the committee consider a new definition:

An SPS-related private standard is: A written requirement or condition, or a set of written

requirements or conditions, related to food safety, or animal or plant life or health that may

be used in commercial transactions and that is applied by a non-governmental entity that is

not exercising governmental authority (WTO, 2014a)

In this definition, the term ‘related to’ was a matter of objection for some member states as they were

of the opinion that food safety was a part of a government’s job. If safety levels of private standards

exceeded those set by the government, the same would amount to competition or increases standards

of quality but would not be satisfying the condition for requisite safety of products

Agreement on a definition for private standards remains elusive. A brief review of law and practice

in TBT and SPS shows that both committees perceive the issue, and neither can get past the “public-

private” divide, which is partly a north-south debate and partly a transatlantic chasm. The division

can be characterized as between the merits of bodies whose membership is open to WTO members

(but whose decision-making process can be ponderous), and an alternative based on the level of ac-

ceptance of the standard in the market (but whose procedures can be opaque). Something ought to be

done, but negotiation on the modalities of WTO action is stymied by the absence of agreement on the

quintessential element in this discussion, the definition of the term “private standard”.23

23
Petros C. Mavroidis and Robert Wolfe, Private Standards and the WTO: Reclusive No More, EUI
Working Paper RSCAS 2016/17