With a new era come new challenges. So, what are the challenges of the rise of ‘soft law’ in lieu of trade agreements? The conference, organised by Professor Elaine Fahey at City Law School entitled “Trade Negotiations, Trade Policy and Law-Making in an Era of Soft Law” explored not only the possible challenges of such non-binding agreements, but also their effectiveness, impact, and most importantly, whether the EU is emerging as a leader or laggard in this new era. Below is a summary of each panel’s discussions, where experts including academics, practitioners and think-tanks came together to discuss such issues.
Panel 1: Key directions of IEL/IPE/EU International Relations: law, policy & practice
The first panel which involved several experts explored developing trends and directions in EU trade policy. David Henig drew attention to the constraints of traditional binding trade agreements amongst complicated political landscapes, supporting instead for flexible ‘soft law’ frameworks (e.g. Digital Partnerships and TTCs) to foster ongoing conversations and incremental trade developments. Maria Belen Gracia highlighted the EU’s strategic use of both hard and soft law to reinforce sustainability and circularity in trade, underlining soft law’s important role in applying these objectives through regulatory flexibility.
Christos Karetsos pointed out a notable shift in EU trade policy towards integrating security considerations outside formal channels, advanced by the pandemic-driven economic vulnerabilities. Alexandros-Catalin Bakos reaffirmed this trend, focusing on the increasing reliance on less transparent, soft law instruments to address security concerns, which boosts stakeholder engagement but raises accountability issues. Josephine Norris rounded off the panel by discussing the dynamic nature of trade policy, where soft law instruments play an important role in adapting to evolving priorities, including resilience and digital regulation, amid shifting geopolitical alliances and values. These observations highlighted a notable shift towards more adaptable and responsive trade strategies in the face of global uncertainties.
Panel 2: Institutional issues of the soft law shift: The place of parliaments, institutions – and less so courts – in contemporary trade?
Fabia Jones, from the second panel, highlighted the European Parliament’s rigorous scrutiny of the EU-UK Trade and Cooperation Agreement (TCA), stressing the need of democratic oversight before provisional application. Jones described the EP’s concerns over the UK’s unilateral actions affecting the Protocol on Ireland/Northern Ireland and its call for full adherence to all agreement terms and potential infringement proceedings against the UK if needed. It also emphasised the need for greater investment in customs control facilities to guarantee effective implementation.
Joseph Dunne focused on the European Parliament Office in Washington and the Trading Technology Council (TTC), acknowledging the former’s role in parliamentary diplomacy and the latter’s initiative to foster EU-US discussions despite initial doubts. Dunne discussed ongoing challenges in transparency and congressional involvement within EU-US soft law arrangements. Alexander Horne mentioned Brexit’s significant influence on UK parliamentary scrutiny of trade agreements, drawing attention to the legislative limitations such as the lack of veto powers and limited debate opportunities. Despite calls for reform and the establishment of scrutiny committees, Horne highlighted the persistent challenges in obtaining transparency and democratic accountability in UK trade policy. Rosalind Stevens highlighted civil society’s struggles in effectively engaging in high-level trade discussions post-Brexit, despite efforts through advisory groups like the Domestic Advisory Group (DAG). Obstacles remain in ensuring meaningful participation and transparency in implementing the TCA between the UK and the EU.
Panel 3: Framing the key ‘movers’ in trade and tech: on the ‘West’ and key ‘contra powers’
In the third panel of discussions, Paarth Naithani presented insights into India’s Digital Personal Data Protection Act, highlighting its alignment with GDPR principles despite identified gaps. He noted the potential for judicial interpretations and clarifications within the law to clear the way for an EU adequacy decision, important for assisting smoother data transfers and enhancing trade relations between the EU and India. Xuechen Chen’s focused on China’s changing position in digital trade governance across the Asia-Pacific region. Chen discussed China’s transition from a conservative stance to a more proactive approach, involving both state-driven initiatives and the active participation of non-state actors such as major tech companies. Her talk demonstrated China’s initiatives to advance digital standards and incorporate domestic security concerns into its global digital trade strategy.
Thomas Verellen explored the EU’s engagement with Canada post-CETA in his ongoing work. He assessed the legal framework and the role of soft law instruments in their relationship since CETA’s provisional application in 2017. Verelleen looked at several binding and non-binding instruments within the CETA framework, addressing challenges related to democratic accountability and proposing reforms to enhance parliamentary involvement in approving non-binding agreements.
In embracing this new era, various challenges are confronted, evident in the discussions across the three panels. The first panel highlighted flexible ‘soft law’ frameworks in EU trade policy to address geopolitical dynamics, sustainability, and digital regulation. The second panel discussed EU-UK Trade Agreement scrutiny, EU-US relations, and post-Brexit UK trade policies. Finally, the third panel examined India’s alignment with GDPR, China’s digital trade governance, and the EU’s engagement with Canada under CETA, focusing on democratic accountability and the role of soft law in international trade.
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