Most technical standards-development organizations (SDOs) have adopted internal policies embodying “due process” criteria such openness, balance of interest, consensus decision making and appeals. Yet these criteria lack a generally-accepted definition and the manner in which they are implemented varies among SDOs. Recently, there has been a renewed interest in the principle that SDOs should ensure a balance of interests among their stakeholders. This article explores the origins and meaning of the balance requirement for SDOs. In doing so, it identifies four “tiers” of balance requirements, ranging from those required of all SDOs under applicable antitrust law, to those required of SDOs that wish to benefit from particular statutory and accreditation schemes, to those that are purely voluntary. Beyond first tier balance requirements, which prohibit anticompetitive attempts to skew decision making processes within an SDO, the imposition of greater degrees of balance among SDO stakeholders, whether through numerical quotas or affirmative participant recruitment efforts, are largely voluntary and dependent on an SDO’s policy preferences.
CPI Antitrust Chronicle, Sept. 2019, Issue 2