1 Introduction: the Transatlantic Partnership as the Future of the Constitutionalisation of Global Governance Failures^*

The transatlantic partnership is fundamental to the global economy and world security but also to the future of the constitutionalisation (with a small ‘c’) of global governance. It has long been one of the problem children of global governance – possibly also, as will be outlined here, its great saviours.¹ This is arguably because the EU and US have consistently shaped international approaches to public international law distinctively and differently.² While the US has crafted the global order after World War ii (ww2) and has consistently promoted EU integration, it is a difficult partnership to credit with much more than this with respect to the global commons and global challenges. For much of the 20th Century, the US was evidently the stronger partner both militarily and economically and arguably dominant in the partnership legally. Even as Europe grew into a larger and more cohesive economic and normative power, the EU has largely relied upon US security might particularly in the 9/11 period and thereafter.³ This imbalance has arguably been adverse for the development of innovation in solving global challenges. Instead, significant human rights challenges have dominated EU reliance upon US legal settlements with respect to civil liberties and security. The EU and US nonetheless constitute two of the leading global figures in trade, economics, agriculture, security. They operate to provide stability as to the liberal global legal order post-ww2, at least until recently when the Trump administration operated a significant deviation from this, particularly as to support for international law and international organisations and they have the capacity in this cooperation to constitutionalise global governance and ameliorate significant previous shortcomings.⁴

The EU actively supported the US pivot to mega-regionals to exclude China and pivot away from the World Trade Organisation (wto) framework, in particular, the Transatlantic Trade and Investment Partnership (ttip) during the Trump administration.⁵ It spurned a subsequently complex period for EU trade policy, which has framed itself as being based upon ‘free and open’ trade and competition but has been stymied by a defensive turn to a lexicon of strategic autonomy, digital sovereignty and multiple trade defence instruments. In this new era, the EU has often sought global solutions to global challenges, as part of its constitutional dna e.g. Article 21 teu to promote international law, from of the Paris Agreement or the Multilateral Investment Court (mic) project to reform isds globally. Yet these efforts have uniformly not been espoused by the US. In this regard, irrespective of the time period, the EU support for international law and international institutions has remained resolute, but unsupported by the US or US commitment to similar values until recently.

The Ukraine crisis has strengthened relations between the allies. At the same time, however, both structural (the rise of China) and domestic (e.g. ‘America first’ policy or the strategic autonomy of the EU) factors suggest that the EU-US relationship will weaken over time due to the impact of such factors, in particular on US foreign policy preferences, especially where the EU is strengthening its own foreign policy, including in the area of security and defence.⁶ Yet the metrics of the relationship are often shifting across political scientists, political theory and political economy trade and data lawyers and governance scholarship, where the calibration between convergence and divergence has been complex. Within a political cycle, significant variations on the state of transatlantic relations have also followed as well as their analysis. Transatlantic Relations as a regional genre have undoubtedly shown themselves to be a vibrant source of dynamic theorisation. The place of actors, powers, competences and institutions form pivotal concepts but also far from objective ideals, imbued often with constructivism.

A Transatlantic Trade and Technology Council (EU-US ttc hereafter), as proposed by the EU in late 2020 to the new Biden administration and already in place by Autumn 2021, could provide an important bedrock from which multilateral ecommerce developments can flourish and evolve global governance significantly.⁷ It has express objectives to address complex trade and technology challenges through institutionalisation and explore global policy objectives, outside of a trade negotiation setting. Yet its objectives appear possibly complex where the US refuses to utilise ‘binding’ trade agreements and increasingly advocates soft law framework solutions. The ttc has notably significant global law-making objectives as will be outlined here-and a significant stakeholder dimension. It constitutes a similar entity or development to that taking place in EU-India relations, where another so-called Trade and Technology Council has also just been established via soft law.⁸ Other countries are supposedly following suit on ttcs e.g. India-Singapore and others want to join the ttc as observers.⁹ The place of global challenges and global public goods becomes more important to decipher in this era as to its methods, aims and its actors. The European Commission has sought to emphasise the benefits of the ttc as enabling more constructive dialogues on open disputes and cases e.g. steel and aluminium tariffs, thereby widening its strategic operations, benefits and outcomes. The need for multilateral law-making on contemporary critical challenges of data flows and climate change make for uneasy bedfellows but somehow find themselves in this forum. The idea of a new Council with broad-ranging bilateral and multilateral goals is thus difficult to fathom but is also evidence of considerable ambitions to constitutionalise international economic law, explored here.

In terms of trade and economic regulation the EU and US are in many ways moving in different directions. This is the case, in terms of how to regulate big data and big tech in general exposing more fundamental, almost philosophical, divergences in approaches as well as very strong opposing interests, as reflected in disputes over, for example, the EU-US data transfer agreement, the Corporate Sustainability Reporting Directive, and the proposed Directive on corporate sustainability due diligence and many other conflicts. The EU-US Trade and Technology Council might assist but not fundamentally overcome these tensions. Yet regulatory convergence may also be more apparent than real. Five bills (the ‘US Antitrust Bills’) have been put forward in the US legislature with the aim to regulate digital markets and limit the power of the powerful firms acting on them.¹⁰ As with US antitrust enforcement in digital platform markets, this regulatory sweep might be devised in a way that would limit its effectiveness, not however, diverging significantly from the aims a range of EU legislative measures introduced in recent time such as the Digital Markets Act (dma) or Digital Services Act (dsa) to address the global challenge of Big Tech power at national level.¹¹ These developments have been matched by the US Inflation Reduction Act (ira), with many highly significant subsidies being introduced by the US legal system-and US businesses awash with US subsidies heavily ‘courting’ EU enterprises increasingly.¹² It is thus a highly complex backdrop around which to develop global challenge solutions to shared concerns as to trade and technology, particularly as to supply chains and to unite and evolve global challenges, predominantly unifying against China.

It is also difficult to suggest that the EU and US have in reality engaged substantively on democratic issues as to global challenges through leadership until the ttc, which targets a vast range of fairness questions, good practices, higher standards and rule deficit issues on global challenges. This chapter thus makes the case for further evolution of the ttc and for policy goals with the aim of enhancing its democratic engagement. It does so principally drawing from EU external relations law developments. It thus addresses the methodology question of ‘constitutional failures’ of global governance of those addressed in this volume.

Section 2 thus situates the historical failures of transatlantic cooperation, as law-light institution-light ‘Business-first’ engagement without constitutionalisation ambitions. The chapter then considers the Transatlantic Trade and Technology Partnership negotiations (ttip) precedent, and its evolution of the treatment of civil society (Section 3). Section 4 assesses the constitutionalisation of EU-US relations in the new EU-US Trade and technology Council (ttc) as a global law-making agenda. The chapter then considers the democratic shortcomings of the ttc and its capacity to evolve stakeholder engagement in the face of significant regulatory divergences e.g. the US Inflation Reduction Act and the EU Digital Markets and Digital Services acts respectively (Section 5), followed by Conclusions.

2 How to Learn from the History of EU-US Cooperation Law-Light Failures?

The role of the United States (US) in crafting the global order after ww2 was decisive and it included the active promotion of EU integration. Over the next 60 or so years, the transatlantic partnership was central to global events through the building of the Western liberal order and all the institutions that went with it. It was an imbalanced and unequal relationship. For much of the period, the US was by far the stronger partner both militarily and economically. In 2004 Jürgen Habermas published the ‘Divided West’ arguing that the ‘normative authority’ of the United States lied in ruins after the Iraq War and called for a European ‘counter power’. It was clear in many recent years under the Trump administration that the EU and US alliance had been almost irreparably damaged. A widespread erosion in the place of international organisations was a central touchstone of EU and US tensions on their respective world views, with the EU heavily centering upon institutionalisation.¹³ The Euro-centric world of pre-1945 and the resulting shifts of periods of globalisation are of significance.¹⁴ The transatlantic partnership has been far from straightforward legally despite being an obvious basis for global stability of international economic law.

Transatlantic regulatory cooperation has in general been a ‘swift’ rather than a ‘deep’ affair, unlike its disputes which often appear to run longer than its agreements.¹⁵ Arising from its last major framework, the New Transatlantic Agenda (nta) of 1995, by 2003, nine formal binding and non-binding regulatory cooperation agreements had been entered into between the EU and US in areas as diverse as competition, privacy, customs and vetinerary standards.¹⁶ Nonetheless, at whatever stage of its development, transatlantic cooperation has posed major challenges for regulatory independence, transparency and administrative law requirements, confidentiality, multi-level governance and regulatory sovereignty.¹⁷

Conflict as much as contestation and convergence are easily overplayed or overanalysed. Although a thirst for international cooperation, standards and institutionalisation is seen globally as pivotal to the success of the international economic order, such efforts arguably have often been stymied at transatlantic or domestic level. Ultimately, transatlantic relations are a story of largely cooperative and lively institutional interactions across many individual points that perhaps have outgrown traditional typologies of the multi-level nature of EU-US relations.¹⁸

The sources of bilateral EU-US relations have often been in bilateral regulatory cooperation agreements, as well as Protocols, Exchanges of Letters, thus in both soft and hard law. Law has played a significant role in contemporary transatlantic relations outside of the bilateral context which, from the perspective of EU External Relations law, might seem neither conventional nor apparent,¹⁹ e.g. EU amicus curiae submissions before the US Supreme Court.²⁰ Institutions have not been irrelevant. A Transatlantic Legislators Dialogue is on-going since 1972.²¹ Transatlantic annual summits have been held since the 1990s, continuing to generate challenges regarding the appropriate EU institutional representation, even after the Treaty of Lisbon and a new European Parliament Liaison Office is situated in Washington DC.²²

As a result, the bilateral transatlantic relations have been considered to be institutionally modest but also flexible.²³ Views differ substantially on the relative importance of law-light institutional-light framings of the core of the western superpowers alliance, cooperation and engagements-not unimportant to a legal audience-less so other genres of analysis. The EU and US are considered the world’s two regulatory great powers and regulatory differences are the most significant impediments to most transatlantic economic activity. In part, as a result there are common perceptions that the transatlantic regulatory relationship is fraught and that the EU and US are competing to spread their regulations around the world. Non-lawyers claim transatlantic regulatory trade disputes are extremely rare and represent a tiny fraction of transatlantic economic exchange.²⁴ Many Mutual Recognition Agreements have been alleged to have failed on account of undue power and influence of US federal authorities.²⁵ As the former EC Trade Commissioner Sir Leon Brittan famously stated, “governments proved to be more eager than their agencies to cooperate.”²⁶ Indeed, many agreements beyond trade have defied characterisation as complex global governance, grounded in soft law and highly complex administrative arrangements. Several post 9/11 bilateral EU-US Agreements in security have been argued to add little to existing Agreements between individual Member States and the US.²⁷ The Edward Snowdon / nsa surveillance saga caused many to consider the question of the value and merits of transatlantic cooperation through law.²⁸

The advent of the Trump administration appeared to give effect to an unprecedented shift in Transatlantic Relations since before World War ii – mostly away from institutions-as well as trade wars.²⁹ This ‘unpleasantness’ changed swiftly with the Biden administration – at least in tone – e.g. already with the Transatlantic Trade and Technology Council (euusttc) proposed immediately by the European Commission and swiftly implemented and taking effect to be discussed here below – yet still a soft law creation.³⁰ Transatlantic relations are thus no stranger to evolutions and to a series of innovative hybrid governance or soft law engagement on law-making and soft law outcomes of note and many so-called transatlantic dialogues over the years, even during/ alongside their renowned ‘failures’.³¹

3 The ttip Precedent: Constitutionalising the Place of a Transatlantic Civil Society

In June 2013, the US launched negotiations between the EU and US on a Transatlantic Trade and Investment Partnership (ttip hereafter) with an ambitious time frame for negotiations to be completed before the end of 2014. With the combined economies of the EU and US accounting for almost 40% of global gdp and approximately a third of global economic trade, the ttip has thus been touted as a dramatic kick-start to the global political economy. The opening of negotiations on a ttip was commenced after the Report of the EU-US High Level Working Group on Jobs and Growth (hlwg).³² There, the suggestion was developed that the negotiations would explore (a) market access; (b) regulatory issues and non-tariff barriers, and (c) rules, principles, and new modes of cooperation to address shared global trade challenges and opportunities.

The ttip purported to develop a multilevel post-national marketplace which would deepen and prospectively institutionalise EU-US relations in a range of fields-such as pharmaceuticals, chemicals, public procurement or motor vehicles – also through a Regulatory Cooperation Council with rule-making capacity.³³ The ttip negotiations expressly involved the discussion of the prospective revision and renegotiations of a broad range of existing EU laws, rules and standards of the acquis communautaire to progress far beyond the technical scope of the last EU-US Mutual Recognition Agreement from 1997. This form of institutionalisation and prospective re-negotiation of EU laws, rules and standards was unprecedented in an EU international trade agreement.

Much emphasis has been placed both at the outset and during the ttip negotiations on the substantive and procedural consent from the European Parliament and US Congress, along with Member State parliaments. From an EU perspective, EU international trade agreements post-Lisbon are formally legitimated in a new dynamic of European Parliament scrutiny and enhanced transparency practices of heightened involvement, pursuant to Article 218 tfeu and an Inter-Institutional Framework Agreement. ttip differed from historical EU-US regulatory cooperation and was thus controversial as a mega-regionals project of integration.

The constitutionalisation (with a small ‘c’) of the role of civil society in EU trade negotiations and also their resulting agreements is an important development in EU law, which began in ttip, and is important as a moment where the EU ceased to disregard ordinary citizens in high-level trade negotiations.³⁴ Unlike the European Parliament (ep), civil society actors do not enjoy a formal role under Article 218 tfeu for treaty-making, but have benefitted from the emergence of several venues to provide their input. Whether these entities actual exert influence or merely constitute a check-box exercise remains to be seen.³⁵ Civil society actors have indeed challenged the negotiations for the new generation EU ftas in a number of ways. The lack of information about the negotiations generated civil society organisations on both sides of the Atlantic.³⁶ The secrecy of the ttip negotiations gave rise to much concern, even resulting in individual meps leaking the negotiation texts ‘in the public interest’. Inadequate responses by the Council and Commission to civil society concerns prompted the intervention of the European Ombudsman,³⁷ resulting in the Commission’s decision to publish the EU’s textual proposals and position papers, thus making ttip a unique case of positive shifts towards unprecedented transparency.³⁸ Significant litigation was also generated by individual parliamentarians working with civil society in the form of a European Citizen Initiative (eci). During the ttip negotiations, civil society succeeded in mobilising public opinion and gathering over 3 million signatures for a petition against the conclusion of ttip and ceta, which resulted in proceedings being taken to the General Court of the EU, seeking annulment of the decision of the Commission to refuse to stop the negotiations.³⁹ The Court in a broad constitutional reading of the provisions of the Treaty on the democratic life of the Union, held that the Commission’s narrow interpretation of law-making that could be stopped so as to preclude negotiations being part of it was incorrect. The Commission thereafter established an Expert Advisory Group specifically for ttip in order to redress its deficiencies, bringing together business, consumer, labour and health interests,⁴⁰ to whom the Commission provided information thereto throughout the negotiations and who were also given the possibility to consult EU negotiating texts, raise questions and provide comments.⁴¹ Despite the progress of ttip, the latest EU-US trade talks have sparked similar criticism by the civil society actors as to the prevalence of behind-closed-door meetings with big business lobbyists.⁴²

The EU-US ttip negotiations appeared to provide some evidence of responsiveness of EU institutional actors to concerns about shortcomings in the democratic process in EU external relations law and hence about the legitimacy of decision-making in the ttip negotiations. This responsiveness often goes far beyond what the cjeu appears to demand in its recent case law on international relations and access to documents. Importantly, it also eclipses historical precedents in EU-US relations from the 1990s.⁴³ It is thus a broadly positive story from a legal and specifically EU law perspective in so far as it contributes positively to our understanding of the place of democratisation of international relations in the supranational EU legal order.

In the era of Big Tech dominance, the place of civil society in theory in solving global challenges in this domain seems highly significant, explored in the next sections, which develop further the plan and actions of the EU-US ttc.

4 The EU-US Trade and Technology Council (ttc): Global Law-Making for Global Challenges (through Soft Law?)

Transatlantic data flows amount to some of the most significant for the global economy.⁴⁴ The ttip, the largest scale form of transatlantic collaboration in recent history, expressly excluded data flows from its negotiations. Its negotiation of e-commerce could have been pivotal given the gap between the Trans-Pacific Partnership (tpp) and EU agreements emerging as to data flows but also the gap emerging as to the regulation of digital trade between the EU and US.⁴⁵ The US shift towards the need for federal privacy laws has considerably altered this divergence to a degree, noted above. Moreover, after the cjeu struck down the EU-US Privacy Shield in Schrems ii, the EU and US finally agreed in March 2022 a new Transatlantic Data Privacy Framework principle in March 2022, to include a ‘trans-atlantic court’ and independent oversight, demonstrating the extraordinary capacity of EU-US relations to lead global challenges debates and evolve transnational views on privacy and courts.⁴⁶ The framework even appears to be understood as a pre-condition for the ttc to evolve, prior to meeting 2 in Paris-Saclay in May 2022.⁴⁷ It thus provided an extraordinary background from which to begin discussions in the ttc-of a shared commitment to the rule of law through institutions and a clear constitutionalisation of relations between the EU and US on trade and technology.

The EU-US Joint Agenda for Global Change included a ttc, putatively developing a loose institutionalisation of key global challenges. The EU proposed as part of its global change agenda a ttc – centered upon multiple working groups that traverse many fields and multiple competences of EU law, from trade, environment, defence to labour: i.e., Technology Standards Cooperation, Climate and Clean Tech, Secure Supply Chains, ict Security and Competitiveness, Data Governance and Technology Platforms, Misuse of Technology Threatening Security & Human Rights, Export Controls Cooperation, Investment Screening Cooperation, Promoting sme Access to and Use of Digital Technologies and Global Trade Challenges.⁴⁸ Notably, seven of the ten working groups address themes that refer to technology either with a security angle or from a competition perspective.⁴⁹ What is noticeable is the mission-creep ‘evolution’ of security between the early meetings, in 2021 into later meetings in 2022 thereafter, as the Ukraine crisis unfolded.

The ttc is based upon multiple working groups that align with this formula of flexibility for a cross-policy pollination, i.e., Technology Standards Cooperation, Climate and Clean Tech, Secure Supply Chains, ict Security and Competitiveness, Data Governance and Technology Platforms, Misuse of Technology Threatening Security & Human Rights, Export Controls Cooperation, Investment Screening Cooperation, Promoting sme Access to and Use of Digital Technologies and Global Trade Challenges all grouped to together but also somewhat distinctively apart.⁵⁰ The provenance of the groupings and their selection, much like a lot of the ttc, are difficult to fully discern without significant insider insight.

International agreements and standards have heavily informed the work of the ttc which makes for arguably interesting analysis on the depth of their engagement on global challenges.⁵¹ For instance, the instruments referred to span a vast range: the Guidelines for Recipient country Investment Policies Relating to National Security (oecd 2009), the General Agreement on Trade in Services (gats), the Global Partnership on ai, the First Movers Coalition, Green Digital coalition, oecd ai Recommendation, wto Government Procurement Agreement (gpa), Declaration on the Future of the Internet (proposed), UN Universal Declaration of Human Rights (udhr), UN High Commissioner for hr and UN Special Procedures, UN Human Rights Council and wto Statement on the Trade and Environment Sustainability Structured Discussions are all widely and on multiple occasions referenced.⁵² A very rough estimate (with counting complicated by multiple divergent references deployed) suggests that over 50 international agreements, instruments or standards are referenced. Whatever about the actual number, it appears a very significant placement of the multilateral at the heart of this bilateral effort to use global instruments as a law-making agenda, albeit couched in soft law and many complex international actors and organizations. It also demonstrated a willingness to look far and wide for solutions to the many cross-cutting themes of the ttc, where the EU had significant legislative infrastructure especially on Tech, the US far less so.

The first post-meeting consensus was that the ttc was off to a ‘promising start’, but observers also noted that the bar for success in the first meeting was low.⁵³ The second meeting already appeared ready for significant policy shifts. By the third meeting over a year from the first meeting, the Ministerial Joint Statement was already trumpeting the success of the outcomes, centered upon developing economies connectivity and ai, amongst many other, although generally unrelated to legal instruments.⁵⁴ In fact, this stems possibly from the fact that the external regulatory landscape was understood to be an advantage for the EU in taking the lead – perhaps so much so as to make the rule-making exercise questionable.⁵⁵

It can be said that the challenges (e.g. digitisation or greening) are all global challenges; they cannot per se be resolved by standards alignment alone by like-minded cooperation however noble minded. Whether the working groups outcomes align well more broadly with the wto agenda also remains to be seen. The ttc ultimately raises questions as to why reform of wto should not be key focus. The challenges for civil society engaging with the breadth of the issues proposed and, in this fashion, could be arguably higher than usual.⁵⁶

5 Methods and Means to Improve Democratic and Participatory Aspects of the ttc

6 Conclusions

Transatlantic relations is a seemingly endless tale of decades of complex bilateralism and multilateralism failures. It has been marked by a dominance of soft law and hybrid governance, not necessarily always a clear or positive impact upon multilateralism per se. What is global law-making policy in a mired multilateral world may constitute for many blue-sky reflection-but in reality the ttc marks the most significant shift in global governance thinking on trade and technology in the 21st century to date, even where the definition of public goods is under strain and where increasingly data flows defy characterisation. A transatlantic alignment of lexicon, policy and ambitions through bilateral cooperation should mark the future of global governance shifts. On one level, the ttc represents an important and positive institutionalisation of the outcomes of the failed ttip negotiations and many lessons learned from many transatlantic experiments in global governance. Yet it is only a step in the right direction and considerably more can be done to evolve the precedent of the ttip era. Developing global challenges through institutions and deeper and wider engagement marks an important step in constitutionalisation – but with much that can be done to enhance it. The capacity for this convergence to evolve further and to align bilaterally, particularly through institutions, could become pivotal going forward as to global law-making. This chapter has outlined a range of policy formulations and evolutions that can readily be implemented.

The ttc it is notably not the only recent Council proposed by the EU – as noted, there is the new EU-India Trade Council. These new Councils represent a new modus operandi for the EU to engage with complex large third country partners through executive to executive engagement, meeting agency counterparts regularly in close groups in an era of EU trade policy deepening its stakeholder and civil society ambit overall. The ttc has a vast range of policy-making activities, traversing many areas of EU law. Their selection and future is difficult to understand in EU trade and data policy seemingly pivoting to executive-led soft law in some arenas and then towards more robust global courts such as a Transatlantic Data Review Court in others. Still, however, there is an effort to learn from the ttip precedent-which must and can be taken further. Above all, they are characterised by more outreach and a deeper understanding of the need for multilevel engagement-and to think ‘bigger’ about the nature of democratic engagement in global challenge policy development. Yet, such intergovernmental and non-transparent collaboration of executives and businesses risks also being ‘captured’ by rent-seeking interest groups influencing negotiations on new product and production standards and subsidies in their favour to the detriment of general consumer welfare and total citizen welfare. There is clearly some constitutional danger or risk of regulatory capture of the ttc.⁷¹ So far, the ttc may reflect more the business-driven, neo-liberal US tradition of economic regulation than Europe’s multilevel economic constitutional approaches to regulating ‘market failures’ (like information asymmetries and abuses in the Internet and ecommerce) and related ‘governance failures’ (like insufficient protection of fundamental rights in data regulations).⁷² However, European first-mover advantage in the field of tech and data privacy and its important constitutional evolutions in stakeholder engagement may indicate that the outcomes of the ttc are complex to evaluate at this juncture.