A Lexicon of Emerging Norms in Digital Trade Agreements: Defining the Liminal Space of International Economic Law for the Digital Age

Building upon the rapid pace of change to the global economy unleashed by digitalisation and the attempts by international economic law (IEL) to respond to it via bilateral and regional digital trade agreements (DTAs), this article posits the emergence of norms which inform the values and behaviours underpinning these agreements. The norms of intangibility, de-territoriality, interoperability, openness, novelty, humanism and principles are examined in depth by reference to the contents of some of the major DTAs, notably the e-commerce chapters of the Comprehensive Progressive Trans Pacific Partnership (CPTPP), the Regional Comprehensive Economic Partnership (RCEP) and the Digital Economy Partnership Agreement (DEPA) via the theoretical lens of liminality, which captures the transitional between-stage of digital trade law as it aims to adapt to the dual challenges of technological change and the fragmentation of the multilateral order of IEL. The liminality of DTAs is reflected variously in these norms’ manifestation in non-binding language, public policy exceptions and deference to national approaches as well as the encouragement of change and unpredictability engendered by these treaties’ purposefully flexible language. The article suggests that the normative basis of DTAs may herald a new era of compliance optionality within IEL.