Universal Interoperability Council

If DIS-29500 ("OOXML") is approved by JTC 1, that is not the end of file format war; it is only the beginning.

Under the Agreement on Technical Barriers to Trade ("ATBT'), international standardization is merely "preparation" for decisions to adopt technical regulations at the regional/national/local level. See sections 2.4 and 2.6. And what do we find in section 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.

So even if Microsoft wins the "prepared" stage, it still has to win the "adopted or applied" phases.

Similarly, under the Agreement on Government Procurement ("AGP"), Article VI sections 1 and 2, we find:

1. Technical [procurement] specifications laying down the characteristics of the products or services to be procured, such as quality, performance, safety and dimensions, symbols, terminology, packaging, marking and labelling, or the processes and methods for their production and requirements relating to conformity assessment procedures prescribed by procuring entities, shall not be prepared, adopted or applied with a view to, or with the effect of, creating unnecessary obstacles to international trade.

Both the AGP and the ATBT apply to every level of government in signatory nations. So, e.g., in the Massachusetts situation, the battle was over a technical regulation that was also to be used as a procurement specification. Hence the decision was subject to both treaties.

Think of the "prepared, adopted, or applied" phrase in the two treaties as a three-phase test that has to be applied by governments at every step of the way, in their NB positions, in their national standards decisions, in their state standards decisions, in their municipal standards decisions, in their procurement decisions.

In other words, OOXML approval at JTC 1 is simply phase 1. There are myriad battles yet to come if OOXML survives the final JTC 1 ballot, with all battles subject to challenge by individual nations in the World Trade Organization dispute resolution process. The AGP also requires that competitors be provided with a judicial review remedy on procurement decisions in each signatory nation.

However, when ratifying the Uruguay Round Agreements (includes both AGP and ATBT) in the U.S., Congress declined to accede to the judicial remedy provision in regard to state governments, leaving enforcement against state governments to the U.S. Dept. of Justice. But that reservation is of questionable legality because of the AGP and ATBT's "all or nothing" provisions for accession to those agreements and the fact that the U.S. itself has invoked the AGP in the WTO dispute resolution process. Arguing that you may take advantage of a treaty while partially repudiating it is not clearly a winning argument.

I'll note before closing that government procurement of software as a service is governed by a third treaty, the General Agreement on Trade in Services. But I'll save that discussion for another day.

So short story: The fight ain't over 'til the fat lady sings. Microsoft can be knocked out in Round 1 and lose the match at JTC 1, but at best it can only survive into Round 2. I.e., the best Microsoft can do is win a battle, not the war.

That is why I have not been worrying too much about what happens at JTC 1, where vendors have inordinate influence. The real war is in the government software market, in the potentially thousands of technical regulation and procurement specification battles.

It will not be the big vendors making those decisions. It will be their government customers.