International standards are ubiquitous in our everyday lives, but the legal literature spends little time analyzing them. The design of USB cables and chargers is a good example, as are paper size, Wi-Fi and Bluetooth specifications, credit card shape, and barcode geometry. Each of these is regulated by an international standard that countries and businesses have adopted across the global marketplace. International travelers sometimes bemoan the lack of an international standard: if your trip takes you to the United Kingdom, France, and Switzerland, you need three types of adapters for your electronics, despite not having traveled all that far.
Although the proliferation of electrical outlet types may not pose immense geopolitical strife, the race to design new standards and get them adopted is different. In their forthcoming work, Soft Power, Hard Standards: How strong is the ‘Brussels Effect’ in international standards?, Lucian Cernat and Hannah Preuss bring new data to analyze who is winning.
Cernat and Preuss’s article is the first to collect and analyze notifications made by governments to the World Trade Organization (WTO) Technical Barriers to Trade (TBT) Committee. Article 2.4 of the WTO TBT Agreement obliges WTO members to adopt into their domestic law international standards except when such standards “would be an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued.” International standards for purposes of the TBT Agreement are rules, guidelines, or characteristics such as terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process, or production method. Where a WTO member government departs from an international standard in its domestic regulations, it must notify the other WTO members. Cernat and Preuss investigate these notifications to determine who is prevailing in the global arms race to control the metrics and means of everyday life.
The article focuses on what the authors present as a contest for regulatory dominance between the European Union and China and those governments’ interests in Africa. It takes up two sectors of standards as case studies: those that apply to telecommunications equipment and to construction materials. The authors examine all the notifications by African countries in these categories. They find that, with respect to telecom, African countries appear to employ variations on international standards more than half the time, followed by homegrown African standards in 34 percent of notifications. With respect to construction materials, African countries report an African-developed standard in 42 percent of notifications, with European standards coming in second at 26 percent. From these data, the authors conclude that the EU is performing better than China in capturing Africa’s regulatory universe. Put differently, there is a greater Brussels Effect than a Beijing Effect in these sectors.
While these immediate conclusions are no doubt interesting, the greater contribution of the article is that it offers a foundation for exploring far-reaching scholarly and policy questions on international regulatory cooperation—an understudied realm of cross-border lawmaking that fits uneasily into traditional domestic or international law boxes. I offer two such questions for contemplation.
First, Cernat and Preuss’s excavation of these data should force a re-examination as to what ingredients contribute to leadership in global governance, particularly when it comes to transnational commerce. The baseline assumption of the article is that influence can be measured by countries’ adoption of other countries’ standards because national standards, as compared to international ones, are barriers to cross-border trade. Putting this in concrete (or electrical?) terms: It is harder for a company to make a widget in three versions, such as with European, British, or Swiss plugs, than if there were just one universal outlet shape. So, the theory goes, the more countries that adopt a particular plug, the more likely it is that a company will just forego doing business elsewhere and make a widget with that dominant, widespread plug. Now extend this example across all requirements on goods and services that governments put in place.
Consider the global regulatory race in the context of the Trump Administration’s America First Trade Policy. Commentators lament the Administration’s protectionist approach through its imposition of tariffs on global imports. These moves are seen as diminishing the place of the United States as a leader in international commercial governance. But how does the impact of those tariffs compare to international regulatory protectionism that may be present elsewhere? In their presentation of dispersed national standards, Cernat and Preuss remind us that international commercial governance comes in many forms.
Second, the article draws preliminary conclusions about competition between Beijing and Brussels, but the story it presents forces us to ask whether there is fragmentation across regions more generally. For instance, it seems that African countries are taking a bespoke approach to their domestic standards. Further, on one hand, the data suggest that the United States is largely absent from directing regulatory traffic in Africa. On the other hand, one potential explanation for the absence of U.S. standards in the figures is that U.S. regulators are more active in international standardization bodies such as the International Organization for Standardization, the International Telecommunication Union, and the International Civil Aviation Organization. Thus, it could be that the United States may be more influential inside the regulating bodies than they are in convincing other countries to rely on a purely U.S. approach. The authors acknowledge this prospect in passing, but far more work could be done here. (P. 12.)
Deciphering and tracing where national experts are playing their most important roles in the regulatory landscape remains beyond the reach of any one article. Nevertheless, crucial to understanding both domestic and international commercial lawmaking is discerning whether the major cross-border regulatory drivers are more akin to innovation or personalization, or whether they are based on competition and geopolitics. The early harvest of this article is that the waters are muddier than prior work might have theorized.
Cernat and Preuss seek to apply empirical evidence to longstanding uncertainties about international regulatory geopolitics. Their article makes its most meaningful contribution in drawing attention to the available data that can be mined not just for academic purposes, but also for businesses and for governments to understand one another’s regulatory language. Trade law experts spill considerable ink on international tariff policy and its recent troubles, but this article reinforces that policymakers are still in regular communication in their expert exchanges and their attempts to speak the same technical language.
