Trade negotiations, trade policy and law-making in an era of soft law: is the EU a leader or a laggard?

Abstract

This report summarises the Conference ‘Trade negotiations, trade policy and law-making in an era of soft law: is the EU a leader or a laggard?’ that took place on 21 June 2024. Digital partnerships’ and soft law frameworks in lieu of trade agreements are increasingly common led by the EU, Asia, US and UK. The EU-US Trade and Technology (TTC) and an EU- India TTC are part of the EU’s pivot to multiple ‘soft law’ instruments in trade and technical, ie non-binding Digital Partnerships with key Asian partners, mainly leading developed economies originally part of the EU’s post-Lisbon pivot to Asia. TTCs nowadays- similar to Digital Partnerships- have soft law structures, executive to executive set-up and wide-ranging emphasis on international law-making goals as to the digital economy. One entity not officially to be found within the TTC is the European Parliament (EP). The EP is formally not part in any way of the EU-US Trade and Technology Council (EU-US TTC) operating outside of its Article 218 TFEU structures. The conference explored how TTC’s raises certain important question as to the increasing dominance of ‘soft’ law in international economic law. It reflected upon its putative exclusion of parliaments through the adoption of frameworks outside of the EU treaties. Are TTCs meaningfully evolving? Are trade and technology increasingly incompatible within trade agreements? Who is gaining and losing? Is EU leadership of global law-making issues arising from its data privacy first-mover regulation imperiled by a shift to soft law? How do other institutional actors get affected by a shift towards soft law in the EU? How are these issues evolving outside of the EU? How much are institutional relationships in trade using conventional needs put under pressure. The event considered examples beyond the EU of similar effects and divergences as to these developments in other jurisdictions. What does a future of soft law in international economic law look like for the WTO, the EU in its trade negotiations and the future of transnational partnerships beyond conventional structures? The event accounted a range of questions not limited to: constitutional challenges of negotiating trade agreements in some jurisdictions, the dominance of global supply chains, the evolution of complex privacy schism across key global orders. The event had three sessions overall : Key directions of IEL/ EU international relations law, policy and practice; Institutional issues of the soft law shift- The place of parliaments, institutions- and never courts? And Framing the key ‘movers’ in trade and tech: on the ‘West’: EU, US and key ‘contra powers’: China, India.