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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

(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),
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,

Universal Interoperability Council

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