9 - Procedural Safeguards in SDOs

Summary

This chapter analyses the extent to which the legal instruments discussed in Chapters 3, 4, and 5 apply to the examined SDOs. It also evaluates these organizations’ rules and procedures against the due process requirements of the applicable regulatory frameworks discussed in Chapter 6. While acknowledging the heterogeneity of the organizations’ operational frameworks, this chapter also emphasizes that their organizational rules – while designed in self-regulatory processes – should yet be considered within the legal constraints of the applicable regulatory frameworks. Indeed, SDOs enjoy a wide discretion not only to implement the due process requirements, but also to determine what these requirements mean, defining such terms as “consensus,” “openness,” and “balance” in their procedural rules. While observing that there are different ways to implement due process principles into the organizations’ procedures, this chapter notes that the level of procedural guarantees offered during the different stages of decision-making differs per organization, but is often insufficient from the perspective of legitimacy.