The New Way of Working at the WTO: Looking at ECA

The growing inability of the World Trade Organization (WTO) to conclude new multilateral agreements has prompted groups of like-minded Members to experiment with alternative forms of trade cooperation. The Agreement on Electronic Commerce (ECA), concluded in 2024 but not incorporated into Annex 4 of the Marrakesh Agreement, exemplifies this evolution. Negotiated by WTO Members, within the WTO, and with the stated objective of eventual integration into the multilateral framework, the ECA nevertheless currently operates as an autonomous treaty governed by public international law. This article argues that it represents a new way of working within the WTO and illustrates the emergence of what the authors describe as an “imperfect agreement”: a legally binding instrument that remains institutionally connected to the WTO while operating outside its formal legal architecture. The article first examines the legal status of the ECA and the institutional consequences of its implementation outside the WTO framework, including its interim governance arrangements and autonomous dispute settlement mechanism. It then analyses how the agreement manages its interaction with WTO law by preserving the rights of non-participating Members, limiting potential conflicts with existing WTO obligations, and maintaining a credible pathway towards future incorporation into the WTO legal system.