Chapter 4 examines the wave of cases before international courts and tribunals (ICTs) against the most innovative tobacco control measures, focusing in particular on Philip Morris v Uruguay (ICSID) and Australia – Plain Packaging (WTO). It contends that the alleged ineffectiveness of the tobacco control measures was one of the key arguments of the claimants, who supported their claims by submitting a hefty amount of evidence. These evidentiary challenges presented novel and demanding tasks for adjudicators of ICTs. Against this backdrop, this chapter first analyses the nature and features of the evidentiary challenges to tobacco control measures (Section 4.2). Second, it reviews how the ICTs have assessed them, zooming in on the interpretation of flexibilities and the use of different sources of evidence (Section 4.3). The picture that emerges from this chapter is that of unnecessary, manufactured complexity. Shifting the discussions on tobacco control measures from the WHO/FCTC to trade and investment ICTs, the tobacco industry has effectively managed to masterfully use international law to its own advantage. It has reframed the debate, all while starting expensive and lengthy judicial proceedings that have taken almost a decade to be concluded.

Chapter 3 lays out the book’s central theory as well as the theory’s observable implications. It argues that powerful producers seek to use their privileged knowledge of the risks and benefits of their products (and regulators’ dependence on that knowledge) to systematically push their own out-of-patent products and those of generic sellers off the market via regulation, in favor of more expensive, patented alternatives. Producers accomplish this first by strategically revealing negative information about out-of-patent products as a means of convincing regulators that these products require stricter regulations. Second, producers support regulatory institutions that require existing products to be reevaluated under a precautionary standard, meaning that failure to prove an existing product is safe leads to the assumption it is dangerous. These precautionary institutions help innovative producers eliminate out-of-patent products more systematically, allowing them to acquire stricter standards not via the provision of damaging information, which carries some reputational risks, but through the withholding of favorable information. This chapter also lays out expectations for where we might expect these precautionary institutions to be adopted, given the distribution of preferences across countries, and it shows why such precautionary institutions should tend to be supported by developed countries and opposed by developing ones. Finally, the chapter argues that because international standard-setters ought to be susceptible to the same sorts of information problems as domestic regulators, and given the distribution of national power within these organizations, we can expect international standard-setters to replicate the precautionary institutional preferences of their wealthier members. We can additionally expect this to create the same tendency on the part of international standard-setters to arbitrarily impose stricter standards on more affordable products, despite the fact that this creates trade barriers that disadvantage poorer members and that directly conflict with these standard-setters’ stated mission.

Chapter 1 provides an introduction to the book. Motivating the book with examples of various regulatory barriers to agricultural trade that have proven particularly contentious, this chapter asks what might explain these barriers and whether we should expect current international solutions to resolve them. The chapter provides a brief overview of the book’s argument regarding how producers leverage private information to acquire the sorts of regulatory barriers that the opening examples describe. In addition, it previews the book’s main contribution and gives a brief chapter outline.

The final empirical chapter turns to the international level in order to determine whether delegation to an international standard-setter alters the regulatory dynamics identified. Looking at the Codex Alimentarius Commission, the chapter asks whether this institution has been able to ameliorate the regulatory biases found domestically. In order to answer this, the chapter replicates the analysis conducted on agrochemical regulation in the United States, this time looking at changes to standards under Codex. The chapter shows that even though Codex standard-setters are substantially more removed from the domestic political process than regulators in the USA, the Codex Commission has shown as much of, if not a greater tendency to systematically impose stricter standards on out-of-patent agrochemical products. As such, the international standard-setter has ended up placing more onerous rules on more affordable products for reasons that are less based on science than they are based on the absence of scientific information. In addition to showing that international standards have been vulnerable to similar biases as domestic regulations, this chapter also explores how developing countries and generic producers have sought to combat the regulatory barriers that have arisen at the international level and how innovative firms have successfully blocked them.

This chapter explores the TBT Agreement of the WTO, it’s case law, and procedural instruments that govern (international) standardization activities and applies them to ICT standards. It discusses the TBT Committee Decision, Code of Good Practice, and ISO/IEC Guide 59 in relationship the procedural expectations these instruments set for standards bodies, but also their relevance for ICT standardization in general. In particular, this chapter focuses on the concept of ICT standards development organizations as the “recognized bodies” with “relevant standardization activities” within the meaning of the WTO, as well as the coverage of private standards by the TBT Agreement. It also discusses the challenges for international standardization that arise from the increasing participation of Chinese stakeholders in standards development processes. Finally, this chapter identifies the shortcomings of the TBT Agreement, its procedural instruments, and the applicable case law when applied to ICT standards and ICT standards bodies.

Hull inspection in the operational routine of commercial shipping is a regulatory obligation. This ensures seamless and smooth operations of commercial shipping vital to the global economy and the international supply chain. Failure to carry out these tasks may result in adverse consequences for the industry, leading to poor maintenance, poor performance and increased fuel consumption. In this era of digital advancement, service robots are integrated into the rudimentary manual inspection system. The systems are based on machine learning and capable of interacting with the environment to achieve preset goals and offer affordable and efficient alternatives. These advanced artificial intelligence–based alternatives are set to change the entire survey and maintenance landscape. While technological advancements continue, the regulatory governance side to these alternative technological solutions is gathering momentum and calls for a state-of-the-art analysis in light of the standardized requirements at play under the existing international regime.

Chapter 6 studies the substantive meta-rules of the TBT Code of Good Practice. As the Appellate Body never provided interpretive guidance over these provisions, how to apply them to standards and VSS remains unclear. Chapter 6 analyses crucial TBT principles providing that standards do not discriminate, do not create unnecessary barriers to trade and are based on relevant international standards. The interpretation of similar TBT provisions concerning technical regulations is used as guidance in understanding the transposition of these obligations and in suggesting how these legal tests are applicable to VSS. The chapter acknowledges the peculiar nature of standards identifying products with distinct quality features such as VSS. It identifies relevant differences from technical standards that must be taken into account for interpretive purposes. These include the objectives pursued by a scheme that can be accepted as legitimate, the implications of the treatment-no-less-favourable standard on measures that structurally distort competitive opportunities and whether the detrimental impact generated stems exclusively from a legitimate regulatory distinction.

Prison standards are an important element of transnational criminal justice. This chapter shows how legal standards governing prison conditions emerged at the international and regional levels and considers how, increasingly, they have gained legitimacy. It then describes how these standards are applied in a way that contributes to a recognizable transnational legal order in respect of prison conditions, which has real impact at the national level. The chapter pays close attention to the transfer of prisoners between states, as a mechanism that operates transnationally and, in the process, enhances the importance of international prison standards. It concludes that the benefits of common prison standards are mixed. On the positive side, they have the potential to give states that are asked to extradite suspects, or transfer sentenced prisoners, leverage to demand the improvement of prison conditions in the receiving states. There is, however, a risk that states will accept and implicitly endorse sub-standard prison conditions in order to rid themselves of troublesome offenders.

Over 4,500 children were detained in Rwanda in 1998, most accused of participating in the genocide. This chapter introduces the issue of children accused of committing genocidal acts, but also more broadly, children involved in atrocities (including terrorist attacks). It explains the rationale for the book, noting that states have discretion to prosecute children but that there are various minimum standards, contained primarily in the Convention on the Rights of the Child, that must be upheld. These standards are binding in respect of all states that have ratified the treaty, yet post-conflict states often face significant reconstruction challenges. What, then, are the implications where states decide to prosecute minors for atrocity crimes? The chapter also introduces the role that international actors can play in enhancing implementation of, and compliance with, international standards, noting in particular UNICEF’s role as the lead UN agency for children in conflict with the law. The chapter notes the contribution of the book to existing scholarship and outlines the multidisciplinary approach, assumptions and methodology of the study, which includes semi-structured interviews and archival research, institutional and doctrinal analysis, and grounded theory and process tracing approaches. It also discusses the limitations and challenges involved in empirical research.

This chapter looks at a least-likely case of highly immaterial and deeply relational services. It provides an in-depth analysis of India’s achievement as the top business service offshoring location in the world and of the significant role played by standards. It offers a historical reconstruction, with an emphasis on how standards played a crucial role in the emergence of a wider spectrum of market institutions than those usually accounted for by the State–market divide of the existing literature. It then analyses the rise and range of international standards and certified management tools used in business process outsourcing in India. In contrast to conventional accounts that relational and intangible services are hard to standardise and, hence, internationalise, the analysis sheds light on the prominence of service standards in India and their ambiguous authority. Finally, the chapter focuses on the particular role of Nasscom, the voice of the Indian IT service industry, including its successful sponsorship of the adoption of a new ISO standard for business process outsourcing services.

This chapter looks at the various institutions providing authority to standards as de jure or de facto regulatory instruments governing the internationalisation of services in contemporary capitalism. It provides background on the institutional environment of the WTO, the ISO setting, the European and the American systems, as well as on the prospects of the new generation of preferential trade agreements, such as the Canada–European Union Comprehensive Economic and Trade Agreement (CETA). It shows the intricate and manifold ways in which the ambiguity of the world of standards supports its power across institutional specificities. This not only goes against the view of a compelling transatlantic divide. It also calls for mitigating speculations on the prospects of current and future mega-trade agreements against the setbacks initiated by the Trump administration. With or without deals, the ambiguity on which the authority of standards feeds the regulatory environment of capitalism is here to stay.