The Effectiveness of Digital Trade Agreements: Upholding the Status Quo or Paving the Way Forward?

This study critically examines the effectiveness of key rules of Digital Trade Agreements (DTAs) through a legal analysis of their textual design. Drawing upon theories of behavioural effectiveness of international agreements from International Relations (IR) and international law scholarship, the study analyses how, from the perspective of negotiators and trade policy makers, DTA rules are textually designed to control the extent to which they influence the behaviour of the parties. By analysing DTAs concluded by major digital powers – the United States, the European Union, and China – the study identifies a recurring pattern: in issue areas where regulatory autonomy is prioritized, such as cross-border data flows, data localization, and source code, parties are generally reluctant to adopt legal rules that may significantly affect their domestic regulatory frameworks. This pattern underscores the limited capacity of DTAs, in their current form, to mandate behavioural change beyond the existing regulatory status quo. The key contribution of this research lies in its development of a conceptual framework for defining and assessing the legal effectiveness of DTAs from the perspective of negotiators and policy makers. This framework facilitates the identification of issue areas where effectiveness remains constrained and those not offers practical guidance for negotiators and policy makers in drafting more effective and enforceable commitments. In doing so, the study provides critical insights into how the legal design of DTA rules can be enhanced to achieve their objectives – addressing the challenges posed by regulatory fragmentation in digital trade.