Van der Leyen hoped for a ‘geopolitical’ Commission to confront growing challenges in the international order including trade disruptions due to Trump’s Presidency, covid, conflicts, the war in Ukraine, and China’s more assertive foreign and trade policy. The EU’s open, sustainable and assertive trade policy aims to respond to this scenario through a series of new policy instruments such as the Anti-Coercion Instrument and FDI Screening, whilst retaining its commitment to international liberal trade norms as well as sustainability norms. The papers in this panel explore this difficult balance, and analyse the effectiveness of these new measures in achieving their goals. The contributions also consider the proliferation of soft law instruments in trade agreements and transatlantic cooperation in trade and technology that focus more on the open and sustainable part of the policy.

Free trade agreements (FTAs) are important instruments of international economic governance. Literature on international negotiations shows that states can sometimes agree to certain terms they object to, and the literature on public policy implementation has revealed that this can lead to ‘foot dragging’ and incomplete implementation, which combined with lack of capacity can lead to FTAs being ratified but not resulting in desired gains due. In recent years, especially in the context of the 2021 Trade Policy Review, the European Commission has shifted its focus to the implementation and enforcement of FTAs. The dispute brought against South Korea under the trade and sustainable development chapter (TSDC) of that FTA illustrates this shift. The new figure of the Chief Enforcement Officer has been tasked with ensuring FTAs are properly implemented by partners, and creates a contact point for business and civil society to lodge evidence of FTA non-compliance in partners across all aspects of FTAs. Triangulating data from documents from the Chief Enforcement Officer’s office (following a freedom of information request), Commission FTA implementation reports and Minutes of FTA Joint Committees, this paper will take initial steps towards a broader analysis and understanding of the EU’s approach to enforcement of TSDCs in FTAs, focusing specifically on environmental matters raised in the TSDC committees and civil society fora associated with these. By categorising the types of matters raised (by are of the FTA, topic, economic significance, partner) to understand the types of implementation challenges that arise and how these are resolved.

Power politics now permeates American and Chinese trade policies, geopolitics (where interdependence is viewed as a vulnerability) has led to increases in trade restrictions globally. Economic security is now national security, even in Europe, where resilience, de-risking, and countering non-market policies and practices is paramount. Scholars and pundits increasingly accept the idea of a geopolitical EU trade policy, with geo-economic power – ideas buttressed by the EU’s trade strategy and the European Economic Security Strategy. The latter also emphasizes the centrality of trade defense instruments (TDIs) in addressing economic vulnerabilities and economic security risks.

Yet, both revised and new EU TDIs reflect an uneasy compromise between the EU’s retained normative preferences for multilateralism and recognition that a fragmented and geopolitical trading system requires assertive action. The Anti-Coercion Act (ACI) – a ground-breaking instrument created in response to Trump’s coercive trade policy – exemplifies the most elaborate step thus far of infusing foreign and security policy into trade policy, while epitomizing the EU’s difficult balancing act. The ACI’s structure appears laden with political challenges come implementation. Drawing on theories of Commission entrepreneurship and different internal levels of policy, and using primary sources, interviews with policy makers, and a comparison with section 301 of the US Trade Act of 1974, this paper assesses the political and economic challenges resulting from the inter-institutional compromises at the heart of the ACI, while raising further questions for future research. Our hypothesis is that inter-institutional compromises diminish its effectiveness and limit its usefulness. Recognizing the ACI’s novelty, we explicate the reasons for the hypothesis, while arguing that insights on its potential effectiveness and limitations can be gleaned from examining US section 301 cases, where achieving the intended results often required simultaneously employing other instruments and additional policy measures.

The EU-US Trade and Technology (TTC) is a key element of transatlantic cooperation in trade and technology in global challenges. It takes effect against a backdrop of decades of complex disputes, regulatory cooperation failures and minimalistic combined multilateralism. It is avowedly opposed to regulatory cooperation and instead is fixated upon global challenges. The TTC has a complex and bifurcated approach to law that is explored here, arguably evident of its post-TTIP identity in an era of a shift away from trade agreements. Its soft law structures, executive to executive set-up and wide-ranging emphasis on international law-making goals contrasts considerably with certain developments in EU-US data and digital trade governance, involving hard law solutions. There have been many so-called soft law transatlantic dialogues over the years and accordingly also it aligns well with broader new regimes in international economic law preferring soft law solutions and delegalisation of international economic law. Yet the TTC anchors itself in over 50 international law instruments and many global goals. The evolution of the TTC appears all the more remarkable as a form of possible incubator of global engagement. There, each ministerial statement has appeared to generate a wealth of bilateral initiatives in support of global norms, rules or standards but ostensibly minimalist legal goals. The breadth, numeracy and intensity of the number of references reflect a broader point that the TTC represents an important realignment of the bilateral EU-US relationship largely through a broader bigger-picture lens of the ‘global’. TTC raises certain important question as to the place of global law-making goals and bilateralism and multilateralism in the complex transatlantic relationship in a complex field of law in the face of regulatory imbalances on trade and technology between the EU and US. The TTC takes effect in an era of soft international economic law emerging yet paradoxically alongside significant ‘hard’ or binding agreements between the EEU and US on data flows. It constitutes a major shift in bilateral practice which had increasingly begun to be legalised. The paper considers by way of a descriptive account the place of global goals and international law in the TTC, examining its overtly legalistic framing yet heavily delegalised outcomes mediated through soft law.

This paper investigates the increasing entanglements of the EU’s different policy areas and legal procedures in the course of its geopolitical repositioning. Following the full-scale Russian invasion of Ukraine in February 2022, the EU is said to be experiencing a “geopolitical awakening”. However, already in the years before, the EU was expanding its geopolitical toolkit through a range of new legal instruments in both trade and security. These include Permanent Structured Cooperation (PESCO), the European Defence Fund, the Global Gateway, and the Foreign Investment Screening Mechanism. More recently, this trend has accelerated, as evidenced by the repurposing of the European Peace Facility for financing lethal aid and the adoption of the European Chips Act, the Anti-Coercion Instrument, the Foreign Subsidies Regulation, and regulations on the joint procurement of ammunitions and military equipment. The more hostile geopolitical environment, while putting pressure on the international legal order, has undeniably led a host of new and still under-researched legal materials. Using a law and policy research approach, the paper pursues three goals: 1) Systematically comparing these instruments across different policy areas; 2) showing how these instruments blur the lines between trade, security and defence, and internal market competences of the EU, thereby creating constitutional tensions with regard to the principle of conferral and distinguishing supranational and intergovernmental models of operation; and 3) reflecting on the broader importance of this development for the conceptualization of the EU as a global actor, which is arguably transcending traditionally dominant narratives about “civilian” and “normative power”.