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Subject: Re: [office-comment] ZIP specification for ODF 1.2
On Sun, Oct 25, 2009 at 9:55 PM, <rjelliffe@allette.com.au> wrote: > * The important case is that an "emerging" standard may want to > standardize some parts of the technology first (for logistical reasons, > for example.) Just what "emerging" is not clear to me--is it > pre-standardization, is it pre-stabilization?: but the intent is > obviously not to frustrate the progress of the standardization on a > technicality. Here is an informed guess on the meaning of "emerging" as used in the Directives Annex N. The annex uses the phrase "emerging international standard" in three places. The governing body of law is the Agreement on Technical Barriers to Trade ("ATBT"). Its Article 2 has this requirement: "2.4 Where technical regulations are required and relevant international standards exist *or their completion is imminent,* Members [nations and the E.U.] shall use them, or the relevant parts of them, as a basis for their technical regulations [exceptions omitted]." <http://www.wto.org/english/docs_e/legal_e/17-tbt_e.htm#articleII> (emphasis added). I suspect that "emerging international standard" in Annex M would be read co-extensively with the highlighted passage in the just-quoted section of the ATBT, else conflicts would result between the ATBT and JTC 1 Directives. But what does the ATBT phrase mean? It's part of a condition for a mandatory legal requirement to apply, "[w]here technical regulations are required and relevant international standards exist or their completion is imminent[.]" Because the language requires adopted international standards to be used whether or not they are complete in the technical sense, I don't think the "completion is imminent" phrase can be read as meaning completion in the technical sense, but rather in the legal sense; i.e., when adopted but not yet published. Whether an international standard is suitable for a given purpose involves other considerations, both technical and legal. At the same time, I don't think one can reasonably argue that "completion" of an international standard is "imminent" before there has been a vote on adoption as an international standard because the ballot may result in the standard not being adopted. So my best guess is that the World Trade Organization's Appellate Body would, without more, hold that the "completion is imminent" phrase refers to the period between the ballot on approval and formal publication. However, I caveat that the drafting history, which is not available on the Web, might shed more light on the subject and be considered by the Appellate Body because of the ambiguity. /1/ Likewise, I suspect the Appellate Body would interpret the JTC 1 Annex N "emerging international standard" phrase as having the same meaning as "completion is imminent" in the ATBT, since preparing an international standard at JTC 1 is a method of preparing national technical regulations. See ATBT Art. 2, supra: "2.6 With a view to harmonizing technical regulations on as wide a basis as possible, Members shall play a full part, within the limits of their resources, in the preparation by appropriate international standardizing bodies of international standards for products for which they either have adopted, or expect to adopt, technical regulations." On the other hand, I'd rather bet on a horse than a judge. Horses have the advantage of not being prone to human error. :-) Nb., Generally speaking, I think the JTC 1 Directives drafters did a very good job of translating the ATBT into the IT context, albeit the Directives are not completely without flaw in that regard. > I think eventually we will see a ZIP standard, but it does not have any > urgency since there is no dispute to be resolved or avoided or mediated by > having a standard. And there is a strong desire, I think, not to add to > burden of standards-developers for bureaucratic box-ticking reasons. I agree that the ease of implementation is the touchstone consideration here rather than rigid rules. The major relevant ATBT requirement is also in Article 2, supra: "2.2 Members shall ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. ..." If the omission of information does not result in an "unnecessary obstacle[] to international trade[,]" --- e.g., an implementation interoperability barrier or a cultural or linguistic barrier --- the "no harm / no foul" rule would likely come into play. Judges are generally not fond of parties who vex them with trivial issues. Best regards, Paul E. Merrell, J.D. (Marbux) ____ /1/ "Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable." Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, Art. 32 (1986), <http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_2_1986.pdf>, pg. 17 (note that the WTO Appellate Body has ruled that the referenced Vienna Convention provides the rules of interpretation for the ATBT, in the case of EC Sardines, <http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds231_e.htm>). -- Universal Interoperability Council <http:www.universal-interop-council.org>
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