1. Introduction
The role of the World Trade Organization (WTO) in digital trade is often approached with a focus on its agreements and their interpretation in dispute settlement cases. The WTO has, for example, referred to its original agreements such as the General Agreement on Trade in Services (GATS), later specific instruments, namely the Information Technology Agreement (ITA), and the principle of ‘technological neutrality’ that has been elaborated upon in the context of GATS disputes by Panels and has withstood scrutiny by the Appellate Body (AB).Footnote 1
This article explores the involvement of the WTO sectoral Committees and Councils in digital trade, foremost the Committee on Technical Barriers to Trade (TBT). Its focus is particularly relevant in light of critical scrutiny regarding whether relevant WTO agreements and part of the WTO membership’s recent efforts to conclude an agreement on electronic commerce adequately address such trade.Footnote 2 In addition, only a handful of decisions, coincidentally all preceding the AB’s disabling at the end of the 2010s, concerned what the WTO has described as ‘disputes related to aspects of the digital economy’.Footnote 3 A look at agreements and decisions alone is then suggestive of the WTO’s role in digital trade having reached a tipping point. But is that image due to a focus on the ‘tip of the iceberg’ and would it be less concerning after exploring the ‘iceberg’s submerged part’, i.e. Committee and Council work?
Taking a cue from the notorious description of the dispute settlement mechanism with the AB as a jewel in the WTO’s crown, transparency obligations, and especially specific trade concerns (STCs) put forward at WTO bodies,Footnote 4 have been referred to as ‘the real jewel in the crown’ or ‘hidden jewel in the crown’.Footnote 5 The WTO itself has spotlighted the role of STCs ‘to address and prevent trade tensions and frictions’ in relation to artificial intelligence (AI).Footnote 6
The most significant number of trade concerns about digital products with at least in part intangible functions is found at the TBT Committee. More recent and significantly fewer are STCs on these topics raised at the Committee on Market Access (CMA), which is another subsidiary body to the Council for Trade in Goods (CTG) and the CTG itself. Among the few instances of members voicing trade concerns about each other’s measures at the Council for Trade in Services (CTS), most are ‘broadly related to the digital economy’.Footnote 7 The mere fact that WTO members raise these concerns signifies that the WTO is involved in digital trade beyond the scope of agreements or adjudicatory decisions and principles. This article shows the pertinence of enquiring into STCs and other trade concerns regarding the WTO’s role in relation to digital trade. Thereby, it contributes to the emerging research on this topic.Footnote 8
The article’s findings reflect observations in a database about trade concerns that address the intangible characteristics of products with digital connotations.Footnote 9 As STCs at the TBT Committee constitute the main part of the relevant trade concerns, the next section sets the scene through this example. The analysis of observations from the database starts by outlining these trade concern’s emergence over time, WTO members’ involvement through raising or supporting these concerns or responding to them, and lastly the occurrence of clustering among related concerns involving the same members. An interesting observation when delving into the content of concerns about digital trade is of challenges by respondents to STCs that allegedly would raise issues outside of the TBT Agreement’s scope. However, even more important is the significant number of cases where trade concerns are not a vehicle of dialogue, especially when issues have strong political implications for the involved members. The conclusion discusses whether addressing digital trade in WTO Committees and Councils is so much affected by problems that there are significant cracks in this ‘submerged part of the iceberg’ of the WTO, and explores proposed or possible responses.
2. STCs and the TBT Committee as a Setting for Members’ Discussion of Each Other’s Measures
Among WTO bodies, by far the highest number of trade concerns is STCs raised at the TBT Committee and another technical committee concerned with Sanitary and Phytosanitary (SPS) measures.Footnote 10 A particularity of STCs in those committees is that they refer primarily to measures that have not yet been adopted and implemented.Footnote 11 Another specificity of the TBT and SPS Committees is their setup as an intersection between members discussing each other’s fulfilment of binding legal commitments within the WTO framework – namely the TBT and SPS Agreements – and expertise-based engagement on the technical issues.Footnote 12
This technical character would correspond to a ‘hidden world’ of expert-driven engagement towards common ground about technical measures.Footnote 13 ‘Politicization’ of ‘committee practice’ in contrast to a ‘technocratic’ view has been supposedly less impactful in the TBT and SPS Committees.Footnote 14 Discussing concerns about digital trade shows however that there are exceptions to the observation that ‘most technical barriers in international trade are prototypical examples of “low politics”’.Footnote 15
STCs are part of the ‘Inverted Pyramid of TBT measures’ consisting of several layers.Footnote 16 The pyramid’s uppermost layer represents informal interactions between members outside the WTO framework. These contacts may continue in parallel to the next layers that are all located at the WTO. They are the fundamental obligation to notify measures that are not based on an international standard or where such a standard is lacking,Footnote 17 then STCs, and ultimately disputes as the (rock) bottom layer of escalation. In addition, a lower-key cross-body escalation may occur at Committee and Council level when, for example, an STC is first being raised at the TBT Committee then being put forward at the CTG to which the committee is a subsidiary body.Footnote 18
Together with notifications, STCs epitomize members’ transparency obligations. STCs – and notifications – have become ever more numerous over time, whether at the CTGFootnote 19 or at the TBT Committee. For the latter, by mid-June 2012, there were about 15.000 notifications and 350 STCs,Footnote 20 while in late 2025, the count stands at over 61.000 notifications and 886 STCs.Footnote 21 More particularly, WTO members have increased the frequency of voicing trade concerns since the AB’s incapacitation.Footnote 22 Of the 57 disputes involving the TBT Agreement, 11 have led to agreement-related findings.Footnote 23 Each of those 11 was the matter of an STC, with one being raised after the initiation of the dispute.
The connection between STCs and dispute initiation has been a key focus of research so far.Footnote 24 To the WTO, STCs ‘can help to defuse’ dispute-triggering tensions, for example about AI,Footnote 25 and, more generally, STCs raised at the TBT Committee ‘help address trade frictions without resorting to formal WTO disputes’.Footnote 26 Therefore, in principle, STCs can be connected to ‘dispute avoidance’.Footnote 27
The connection is not straightforward, though. In general, rough numbers would support the conclusion that STCs fulfil expectations of being dispute preventing in the case of the TBT Committee.Footnote 28 But not only is it an elusive endeavour to pinpoint non-escalation cases where an otherwise dispute-triggering situation has been resolved through STCs, more technically ‘it is difficult, due to lack of hard numbers, to claim outright that the Committee is effective in resolving trade concerns’.Footnote 29 The status of STCs raised at the TBT Committee remains a grey zone, with few exceptions where they have either been assigned a status as ‘resolved’ or ‘partially resolved’,Footnote 30 or to the contrary have escalated into a dispute. At the CTG, another body where such a grey zone existed, a recent decision engaged members to signal each resolution of a trade concern.Footnote 31 It resulted in returns indicating that close to half of the concerns were partially or completely resolved.Footnote 32 Whether a similar clarification will take place at the TBT Committee remains to be seen.
In practice and like other parts of committee and council work at the WTO, trade concerns are contested and as such susceptible to being a source of ‘frustration’.Footnote 33 STCs, more particularly, can both serve as – rather dispute-preventing – ‘substitutes’ and as – rather dispute-preparing – ‘complements’.Footnote 34 The resulting ambiguity is reflected in the finding that ‘there is some truth to the narrative of escalation (i.e., issues are first raised as trade concerns and then as disputes)’.Footnote 35
On the one hand, possibility for other WTO members to join discussions between the member who raised an STC and the respondent member would support the finding that ‘the committees have administered the STC proceedings akin to multilateral mediation’.Footnote 36 On the other hand, the configuration of trade concerns is that ‘WTO members act as “complainants” and “respondents”’,Footnote 37 as if they were involved in a dispute. As in dispute settlement cases, other members’ involvement is limited to intervention in support of the ‘complainant’. An escalation towards a dispute may thus be due to the member that raised the concern or result from a supporting member’s involvement.Footnote 38
3. Mapping ‘Digital’ STCs: Scope, Patterns of Member Involvement, and STC Clusters
How many trade concerns have connotations that involve digital products’ intangible characteristics and on what matters? The most thorough count of notifications and STCs ‘related to digital products’ at the TBT Committee published in mid-2024 found notifications of ‘around 500 measures’ and identified 51 STCs by using a combination of keywords.Footnote 39 With the last meeting before the summer break in 2025 as a cutoff point and a partially different approach, the database supporting this article’s observations found 47 such STCs raised at the TBT Committee. It operationalizes the very notion of a ‘digital’ STC in an artisanal and somewhat broad way – hence the quotation marks – instead of focusing on specific digital technologies such as AI or Internet of Things (IoT) and robotics.Footnote 40 The starting point of finding relevant STCs is the WTO’s Secretariat’s trade concerns databaseFootnote 41 in which some categories for TBT STCs are clearly digital: i.e. ‘cybersecurity’, ‘artificial intelligence’, and ‘Internet of Things’, encompassing 28 STCs.Footnote 42 The final count of 47 relevant STCs at the TBT Committee is arrived at by using the above-mentioned combination of keywords and applying two further criteria to the result.
First, the STC should address the relevant measure’s approach to the product itself, not only conformity assessment procedures (CAPs), such as the location of testing facilitiesFootnote 43 or transparency issues such as lack of notification. Applying that criterion does however not extend to distinguishing between product-related and non-product-related processes and production methods,Footnote 44 as discussions on ‘digital’ STCs’ make the distinction elusive.
Second and most importantly, the measure at stake should not – or not only – cover the product’s tangible part. Counterexamples are measures about labelling of information and communication technology (ICT) devices that are essentially used in connection with digital technology,Footnote 45 or about ‘ecodesign’ of wireless chargers or charging pads.Footnote 46 Reversely, included in the count of ‘digital’ STCs is one raised about Indian ‘telegraph rules’ that have covered testing of ‘telecommunications-related equipment’ in relation to Internet Protocol Version, GPS, and other intangible functions of ICT equipment.Footnote 47 Even STCs about a measure with a focus on a product’s physical properties can be relevant after all, such as China’s and the Republic of Korea’s regarding an EU ecodesign measure’s implications for updates to operating systems.Footnote 48
Applying those criteria uncovers 19 other STCs categorized as ‘New vehicle technologies’, ‘ICT’, ‘telecommunications/radiocommunications’, ‘Intellectual Property Rights’, ‘Vehicles’, and even ‘Household’ in the case of an STC by China about requirements by the United States of America (USA) for transmission of digital television signals.Footnote 49
Beyond the 47 ‘digital’ STCs at the TBT Committee, 12 relevant trade concerns have been found in other WTO bodies – two at the CMA, four at the CTG, and six at the CTS. At this article’s cutoff point in summer 2025, one ongoing concern at the latter body about cybersecurity-related measures by China and Viet Nam had been voiced since 2017, overlapping with several STCs at the TBT Committee, of which one continues to be raised at the committee.Footnote 50 Two other ongoing concerns related to digital trade were so far only an agenda item at the CTS.Footnote 51 Other concerns have been discontinued. This is the case of an STC at the TBT Committee that connected to trade concerns at the CTG and the CTS.Footnote 52 Japan raised connected – now discontinued – STCs at the TBT Committee, the CMA, and at the CTG.Footnote 53 The remaining discontinued concerns were voiced by China: one cross-body at the CMA, the CTG, and as an item at the CTS,Footnote 54 and the other at the CTG only.Footnote 55 Not least because of the overlap in half of those cases with STCs raised at the TBT Committee, they add to, rather than alter, the picture emerging from those STCs as far as observations of ‘digital’ trade are concerned.
3.1 Database Criteria and Calibration of Findings
The database containing the ‘digital’ trade concerns builds – except for those raised at the CTS – upon the information provided by the WTO’s database, i.e. identification, involved members, timeline, and number of times that an STC has been raised at the time of extraction. Further information provided by the WTO is the thematic category, e.g. ‘cybersecurity’, the type of measure – Technical Regulation, Standard, or Conformity Assessment Procedures (CAPs) – and STC’s relation to other trade concerns. The author’s own contribution has been to find further connections among trade concerns at the TBT Committee and across bodies, to scrutinize the applicability and reliability of categories provided in studies of STCs in general, and to carry out a content-based analysis.
The limited number of trade concerns in the database supports a more qualitative approach than the partly quantitative thrust in studies of all STCs.Footnote 56 With this article studying much smaller numbers of trade concerns, there would be a distorting impact on quantification by cases such as that of three STCs about Chinese cybersecurity measures that were first discussed separately, then regrouped, and then addressed again separately until they ended at different points in time.Footnote 57
Better suited to this article’s purposes is to rely on a qualitative distinction of two types of issues in STCs at the TBT Committee, which are the concerns forming the core of the database: on the one hand, ‘procedural’ issues of ‘transparency’, such as lack of notification to the WTO, or translation, update, or clarification requests, or not enough time for other WTO members to comment on a notified measure; on the other hand, ‘substantial’ issues of ‘monitoring’ compliance with disciplines in the TBT Agreement’s Articles 2 and 5, which were about harmonization, non-discrimination, and restrictiveness, or were related to a measure’s rationale.Footnote 58 In other bodies, this distinction is much less relevant than at the TBT Committee, which, as a body that addresses specific technical issues, is the most likely entry point for concerns about digital trade and for procedural transparency issues. These may appear ‘simple’ and easier to resolve as they are typically ‘requests for clarification or additional information on particular regulations’.Footnote 59 Over the course of a STC, there might be a shift in prominence between transparency and monitoring issues.Footnote 60 Somewhat intuitively, ‘monitoring’ issues are more impactful and have been the key factor when STCs have escalated into disputes.Footnote 61 Indeed, why would a WTO member raise an STC about a lack of notification if the measure’s content itself was of no concern?
For the purposes of this article, the database’s classification of STCs provides observations about the occurrence of transparency or monitoring issues – or whether one issue has been more relevant than the other. The focus is on showing tendencies rather than on quantifiable results. Findings about ‘digital’ STCs mirror insights from a study of STCs in general: (1) in most cases, both monitoring and transparency are at stake; and (2) when only one type of issue is involved, monitoring is more frequent than transparency.Footnote 62
Two specific methodological reasons support the more impressionistic approach to the observations in the database. First, series of connected measures may result in one STC or in several.Footnote 63 Such occurrences impact the assessment of monitoring and transparency issues, as a single STC covering several measures is more likely to engender new transparency issues. Second, assessing the content of WTO members’ STCs stems from publicly available minutes of TBT Committee meetings. To start with, member statements are constrained by their official characteristics.Footnote 64 A more methodological quandary is that contrary to having been ‘in the room’, even the minutes’ verbatim characteristic leave questions open about whether a statement involves a monitoring issue or a transparency issue. For example, would questions about the responding member’s measure complying with WTO member obligations be a rhetorical disguise for claiming a breach of obligations – i.e. monitoring – rather than clarifications requests – i.e. transparency?Footnote 65 Lines are blurred as well when parts of a measure, such as definitions, are described as unclear and an obstacle to the STC-raising member’s businesses’ market access.Footnote 66 On the surface of it, such a description would imply a request for clarification, thus a transparency issue. However, when it is coupled with the statement that the lack of clarity affects foreign businesses negatively, it implies that the measure’s content is at issue, which would be a monitoring matter.Footnote 67
Studies of STCs in general have also proposed different quantifying proxies for assessing the status of an STC. Of those, the most reliable for the purposes of this article is the observation of ‘eternal’ STCs: those raised at each meeting for a period of at least five years, without either escalating into a dispute or showing signs of being resolved.Footnote 68 Two other proxies feature in the database for indicative purposes only but are less pertinent and reliable. These are, on the one hand, a proxy for an STC’s resolution when it has neither been raised again for 24 months, i.e. six TBT Committee meetings, nor escalated into dispute initiation; on the other hand, the proxy for a ‘serious’ STC was raised at least three times.Footnote 69 A recent CTG decision mirrors the former proxy through a two-year-threshold before asking WTO members whether an STC should be considered at least partially resolved.Footnote 70 But for an analytical disaggregation of the grey zone of STCs at the TBT Committee into white (unresolved) and black (resolved), a similar cutoff would, as the proxy’s proponents themselves caution, rely on ‘an arbitrary decision’.Footnote 71
Already empirically, an STC about Indian ICT rules exemplifies how trade concerns ‘may remain dormant and resurface later when a new issue arises’.Footnote 72 More fundamentally, a focus on content provides for other findings about resolution than applying the two-year-cutoff proxy. For example, WTO members can stop raising an STC but conclude discussions about it by expressing continuing strong divergences.Footnote 73 Reversely, a respondent can announce it has abandoned the measure at stake, as China did for one of the three STCs on cybersecurity measures that were temporarily regrouped at the TBT Committee.Footnote 74 In turn, the latest statements by members who have raised trade concerns that are neither officially nor by proxy resolved may reflect closure, e.g. that while they would watch further developments, their concerns would be significantly lessened.Footnote 75
This article’s content-oriented approach and cross-body perspective also accounts for members choosing to voice concerns on a related measure, which may question the applicability of the two proxies about resolution and seriousness. For example, the ongoing STC at the TBT Committee on China’s Cybersecurity Law now encompasses statements by the USA on the Encryption Law even though another ongoing STC addresses the latter law,Footnote 76 and by the EU on the Data Security Law after raising, on one occasion, a separate STC.Footnote 77 In addition, the Data Security law had already been – and continued to be – discussed by the EU and other members at the CTS.Footnote 78
3.2 ‘Digital’ STCs’ Increase over Time at the TBT Committee and Extend to Other Bodies
Digital trade is a matter that has moved to the forefront of the WTO’s agenda rather recently, notwithstanding the existence since 1998 of a Work Programme on electronic commerce. Voicing of concerns with digital trade connotations is mostly recent as well, even though the broader criteria applied in this article favour the inclusion of earlier observations.
Indeed, 25 ‘digital’ STCs out of the 47 in total at the TBT Committee have been raised since 2020. Simultaneously, four such concerns were newly voiced at the CTS, while ‘digital’ STCs also appeared in other WTO bodies related to goods, more specifically the CTG and CMA, in one case in parallel to a TBT STC. In turn, the first relevant STC at the TBT Committee was raised in 2000 and addressed the impact of the EU’s standard used in a directive on ITC products,Footnote 79 followed by 11 more by 2015. Between 2015 and 2020, 11 further STCs – most of them about Chinese cybersecurity measures – were raised. Simultaneously, China’s measures and those by Viet Nam became an item on the CTS’ agenda that is still ongoing.Footnote 80
In sum, the deployment of ‘digital’ STCs has become more frequent over time. The same evolution can be observed for such trade concerns being voiced outside of the TBT Committee, whether by a body where the practice of raising concerns has been rare and exceptional, such as in the CTS, or the CMA and the CTG where it has been occurring since the start of the bodies’ work.Footnote 81 Adopting a cross-body perspective lends further support to the salience of studying ‘digital’ trade concerns, with STCs raised at the TBT Committee as a starting point.
3.3 Patterns of Member Involvement and Clustering of STCs
All but one of ‘digital’ STCs raised at the TBT Committee so far have involved China, the EU, and the USA, either as respondents, STC-raising, or STC-supporting member. The same members have always been involved when digital trade concerns were raised at other bodies, i.e. the CMA, the CTG, and the CTS. Standing out as the exception is an STC at the TBT Committee raised by the Republic of Korea about a Russian measure involving ‘new vehicle technologies’.Footnote 82
By far the most frequent respondents to ‘digital’ STCs at the TBT Committee are China – 19 times – and the EU – 16 times including an STC about a member state’s measure.Footnote 83 So far, the USA has been a respondent three times. Other respondent members have been India (three times), the Republic of Korea and Russia (two times), and post-Brexit United Kingdom (UK) and Viet Nam (one time). Even more important, however, is the side that has raised a ‘digital’ STC. So far, China has done so 21 times, the EU 18 times, and the USA 25 times. The only WTO member with similar activity in raising ‘digital’ STCs is Japan (17 times). It is worth noting that smaller developing WTO members, even though they have raised STCs on other trade issues,Footnote 84 have hardly become involved so far in ‘digital’ trade concerns.Footnote 85 The ‘digital’ trade concerns voiced at other WTO bodies show a similar pattern of involvement, even in cases where the concerns are not identical in issues and member constellation with those at the TBT Committee.
A noteworthy observation is that of STCs forming a cluster where members cross-refer to other trade concerns raised against the same respondent. The most important cluster articulates around measures related to China’s Multi-Level Protection Scheme (MLPS). Most prominent are the ongoing and eternal STCs at the TBT Committee about China’s Cybersecurity Law and Encryption Law raised since 2017,Footnote 86 in parallel to the voicing of concerns about these and related measures by the USA, the EU, Japan, and others at the CTS.Footnote 87 What is more, over the past ten years, the members raising or supporting these two STCs have connected them with several others, whether directly by referring to those other measures in their statements or indirectly by three STCs’ – temporary – regrouping.Footnote 88 Lastly, those measures derive from initial proposals that already were the matter of an STC repeatedly between 2008 and 2010.Footnote 89
Exemplifying an STC cluster is that in the case of concerns about Chinese cybersecurity measures, there is a pattern of involved WTO members: foremost the EU, the USA, and Japan, joined repeatedly by Australia, Canada, and the Republic of Korea.Footnote 90 This group of members was also active in raising STCs in relation to series of draft and implemented measures notably by Viet Nam and India,Footnote 91 which suggests like-mindedness. The connection between a thematic cluster and member involvement pattern is also found at the CTS, where the USA and Japan took the lead in raising concerns about China’s Cybersecurity Law and other cybersecurity measures, as well as about Viet Nam’s cybersecurity measures.
Another pattern is that the same member raises an STC about unconnected measures by the same respondent. Notably, 14 out of 16 ‘digital’ STCs at the TBT Committee, where the EU has been the respondent, have been raised by China,Footnote 92 the other two being voiced by the USA.Footnote 93 Another observation is that of one member raising trade concerns against several other members on the same topic. The key example is China’s concerns about measures affecting Chinese telecommunication providers such as Huawei, notably in relation to the 5G technology, at the TBT Committee and other bodies.Footnote 94 Lastly, different members may raise STCs with a thematic connection against the same respondent, as is the case with those related to India’s ‘telegraph rules’.Footnote 95
The observation of clusters, as well as of the other configurations, reflects one default logic and one more specific to the case of ‘digital’ trade concerns. The default logic is that over the course of time, there is an increasing probability of an STC on a measure being followed by another one on a related measure, which can eventually lead to the formation of a cluster. More specifically, as the previous subsection’s disaggregation of the occurrence of ‘digital’ STCs at the TBT Committee shows, the voicing of concern about these issues has become ever more frequent over time. This tendency adds to the default likelihood of possible clustering through follow-up trade concerns.
Lastly, there are outliers from patterns of involvement. Even though China and the above-mentioned ‘like-minded’ group – spearheaded by the USA, the EU, and Japan – are normally opposed to each other when discussing concerns about digital trade, there are examples to the contrary. Chinese concerns have overlapped with those voiced by the USA and ‘like-minded’ members about two measures by India.Footnote 96 China and the USA have also coincided in raising STCs about a measure by the EU.Footnote 97
4. Challenges against STCs and Non-Dialogue as Scratches on the ‘Real Jewel in the Crown’Footnote 98
So far, the analysis of ‘digital’ STCs has consisted mostly of ‘metadata’-like observations, but what about the ‘information’, i.e. the discussions’ content? One finding from the perspective of the distinction between transparency and monitoring issues is that while most of the STCs raised before 2015 addressed transparency issues, there has since been a shift towards monitoring issues. Sometimes, concerns voiced about those issues translate into a fundamental criticism of respondents’ measures. Indeed, members voicing concerns have tasked the respondent with changing a substantial part of envisioned legislation or, exceptionally, even called for an entire measure’s non-implementation.Footnote 99 The analysis of the content of ‘digital’ STCs at the TBT Committee – and the few similar trade concerns raised in other bodies – thus provides noteworthy observations. For one, reminiscent of preliminary objections in adjudicatory dispute settlement, in some cases the respondent WTO member has questioned that the STC’s matter falls within the scope of the TBT Agreement and discussions at the TBT Committee. More frequent, however, are occurrences of eternal STCs where the involved members repeat their statements.
4.1 Questions of Scope: Is the Measure of Concern?
Along with other committee practices by members, STCs have been characterized as vehicles of a ‘visible, yet focused confrontation on the interpretation of the WTO rules’.Footnote 100 Such a confrontation appears most clearly when the WTO member responding to an STC questions the adequacy of the concern being raised in relation to the scope of the TBT Agreement.
Of the three ways of such questioning observed among ‘digital’ STCs, two are not specific to digital matters. First, responding members have disputed that the relevant measure had the characteristics required of those covered by the TBT Agreement, i.e. mandatory technical regulations, non-mandatory standards by ‘a recognized body’, or related CAPs.Footnote 101 Second, respondents to an STC have invoked that the measure at stake would have a scope of application that would exempt it from scrutiny under the agreement. The third way, conversely, is more specific to the digital element of STCs, stating that the product or elements thereof covered by the measure triggering the STC are not within the scope of the TBT Agreement.
Regarding the first of the two general lines of questioning a ‘digital’ STC’s adequacy, a respondent member can contend that its measure is not a technical regulation. Russia, when faced with an STC on requirements to pre-install Russian software in ‘technically complex goods’, stated that the amendments to the law at issue were neither ‘technical regulations’, laying down product characteristics and productions methods or similar requirements,Footnote 102 nor CAPs. The USA, who had raised the concern, disagreed with this challenge by stating that the mandatory pre-installation corresponded to ‘product characteristics’.Footnote 103
More frequent are respondents contesting STCs about member-specific standards. In this case, the contention of the member(s) voicing the concern is that these standards do not conform with international ones and impact other WTO members by no longer remaining voluntary for those interested in trade with the respondent member. Indeed, it is debated whether the classification of a measure as supposedly voluntary standard under the TBT Agreement does align with realities, especially if member authorities were involved.Footnote 104 In an STC raised about a draft standard in China on cybersecurity for vehicles, the USA addressed it as reflective of, and leading to, the de facto establishment of requirements by Chinese authorities, notwithstanding the on the surface non-governmental origin of the standard at issue.Footnote 105 In turn, the EU, when responding to a Chinese STC about a cybersecurity-related measure, challenged whether there was any concern to be raised regarding the framework of the TBT Agreement at all, as the standard in question would be voluntary, and non-certification would not have significant implications for businesses.Footnote 106
The second type of challenge arises when the respondent alleges that a specific adjustment removed the measure from the TBT Agreement’s scope, or refers to exceptions to the agreement. Namely, China stated that amendments to proposed regulations limited their impact to the area of government procurement, so that these regulations no longer were within the TBT Agreement’s scope, i.e. the STC no longer had a foundation.Footnote 107 In another case, India’s involvement as a respondent in what was to become an eternal STC started with contesting the very applicability of the agreement and thereby the existence of a legal base for raising an STC. Attempting to avail itself of an exception, the Indian statement pretended that the measures at stake would fall outside of the scope of the TBT Agreement because their objective was national security.Footnote 108 However, the USA, in support of the STC, pointed out that national security figures among the ‘legitimate objectives’ that may be pursued by technical regulations in the agreement.Footnote 109 The relevant provision stipulates in fact that ‘technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create. Such legitimate objectives are, inter alia: national security requirements’.Footnote 110
The third more specific contestation of a ‘digital’ STC being raised at the TBT Committee consists of a respondent arguing that the very issue discussed is not covered by the TBT Agreement. On one occasion, China stated that voicing concerns about data residency and cross-border data transfers ‘went beyond the scope of the TBT Agreement’, while notification of the Chinese regulation at issue had happened ‘to show good will’, not because it was an obligation under the agreement.Footnote 111 Earlier, the Republic of Korea responded to another STC by stating that the standard for the Wireless Internet Platform for Interoperability ‘was not a product standard, but a technical interface standard’ and would belong under the GATS.Footnote 112
The background to such challenges to ‘digital’ STCs is that the TBT Agreement relates to the General Agreement on Tariffs and Trade, where the topical scope is tangible goods, triggering questions about the limits of what is addressed, or not, by the agreement, for example AI.Footnote 113 However, the development of these STCs has been that they not only address measures’ impact on products’ tangible characteristics, contrary to, for example, labelling or ecodesign requirements. Not only have such challenges been few, but they also have not occurred recently. Instead, more recent STCs, such as that raised by China about the EU’s AI Act,Footnote 114 point towards respondent WTO members no longer resorting to this kind of objection.
What is more, beyond this tendency in relation to STCs, which can be qualified as implicit, the TBT Committee has explicitly involved itself in digital trade matters through Thematic Sessions. In 2023, these sessions focused on regulatory cooperation about digital matters, including about intangible digital products and AI, and in November 2025, a session took place about standards for ‘critical and emerging technologies’ such as AI.Footnote 115 These observations would support that TBT Committee activities have ‘lent dynamism to the treaty texts’,Footnote 116 even if it is through ‘an activity which remains well below the threshold of formally adopting any views in the committee’.Footnote 117 To the least, they would be reflective of a development through which the impact of the ‘Goods/Services Dichotomy’, underlying the WTO’s framework on, for example, AI, becomes more malleable.Footnote 118 Those conclusions however come with the caveat of the limited number of WTO members that so far have become involved in ‘digital’ STCs, and especially as respondents that would have an incentive to state that an STC’s topic is outside of the TBT Agreement’s scope.
4.2 The Significance of ‘Digital’ STCs With or Without Limited Dialogue
STCs may be presented as a contribution to dispute prevention and a lessening of trade tensions by the WTO and studies focusing on the escalation into dispute settlement cases. However, in the context of committee work practices, they have been described by members – for example the EU, a frequent respondent – as susceptible to be ‘inefficient’, with cases where a trade concern would be voiced over and over again on the same terms.Footnote 119 Respondent WTO members’ replies then would become similarly repetitive. The pattern of members continuing to raise an STC and replying to it without engaging in dialogue resembles that of ‘inert and superficial’ discussions observed when STCs have escalated into disputes.Footnote 120
‘Digital’ STCs provide several such examples where dialogue stalls or even wanes. At the TBT Committee’s meeting in June 2018, discussions of three different STCs from the cluster about China’s cybersecurity measures consisted essentially in referring to what had been stated at the previous meeting, whether in the statements by the members raising or supporting these STCs, or in the Chinese response.Footnote 121 Especially in the cluster related to Chinese cybersecurity measures, examples of eternal STCs without the involved members engaging in dialogue abound: the ongoing STCs about China’s Cybersecurity Law and Encryption Law have been raised 26 and 27 times between 2017 and the end of November 2025,Footnote 122 a related STC about implementing measures 18 times between 2017 and 2023,Footnote 123 and another one no less than 37 times from 2011 to 2023.Footnote 124
Contrary to other eternal STCs that have not addressed digital trade,Footnote 125 these concerns show no dialogue or signs of willingness by the respondent member to adapt measures.Footnote 126 Raising an STC repeatedly under the same terms might however reflect the interest in continuing to keep the responding member accountable ‘short of escalating the concern to a complex and costly formal dispute’.Footnote 127 To the drawbacks of such a dispute, one can now add the possibility for a respondent to appeal into the void to the non-functioning AB and thereby leave the matter pending. A further dimension is that WTO members’ transparency activities related to TBT and SPS matters are characterized by the private sector’s strong commitment as a stakeholder.Footnote 128 In such a constellation, continuing to raise an STC even though there is no dialogue among the involved WTO members ‘might allow governments to appease domestic interests’.Footnote 129
The cluster of trade concerns about Chinese cybersecurity measures also shows a spillover between some specific STCs that may no longer be raised and others that are ongoing, with the EU and the USA announcing that they would voice their concerns about the Data Security Law or the Encryption Law when addressing China’s Cybersecurity Law. By implication, as long as the latter measure is an agenda item at the TBT Committee or at the CTS, and the trade concern materializes through a repetition of statements, caution should be exerted in considering related concerns resolved, even if no longer on the agenda.
Including when the interaction between involved WTO members does not consist of merely referring to previous statements or repeating them, questions remain about ‘digital’ STCs defusing tensions through dialogue. A crucial example is China’s STC at the TBT Committee about the proposal for the EU’s AI Act. The eight points initially raised included suggestions such as that the definition of AI systems in the proposal should be changed because it was too broad.Footnote 130 The range of the issues addressed by China became more succinct by, for example, no longer requesting a change of definition.Footnote 131
This development should however not be seen as evidence attesting to a dialogue through STCs. For example, the EU representative’s response to China addressing the definition of AI systems in the proposed AI Act was that this definition overlaps with the Organisation for Economic Co-operation and Development’s.Footnote 132 The changes to the definition between the proposed and the adopted AI Act have instead been considered as maintaining its broad characteristics,Footnote 133 thus hardly responsive to China’s suggestion. Even the replies by the EU to the more specific remarks that China made each time it raised the STC limited the dialogue to clarification to others, but not to input from others. Eventually, the example confirms the observation about another prominent EU piece of legislation that became a matter of an STC: that raising a trade concern at most contributes to amendments ‘limited primarily to secondary and technical issues’, ‘with internal regulatory processes playing the most prominent role’.Footnote 134
5. Tipping from Technical to Political Statements in ‘Digital’ Trade Concerns
Since non-dialogical patterns such as repetition of previous statements have become significant among ‘digital’ trade concerns, the perspective of the logics that have been observed to escalate STCs into disputes is relevant. This discussion then leads to highlight the political implications of such concerns.
5.1 Pattern Similarity with Escalation into a Dispute
The observation of non-dialogue’s frequent occurrence among ‘digital’ STCs makes it pertinent to analyse them in light of the patterns of TBT STCs escalating into disputes: (1) the respondent member’s unwillingness to change thoroughly prepared ‘radical measures’; (2) spillover of political tensions between members; (3) lack of engagement towards a solution by addressing the matters at stake in the STC, resulting in inertia and superficiality; and (4) ‘insurmountable’ divergences even though all involved parties engaged thoroughly in dialogue about the STC.Footnote 135 In the case of ‘digital’ STCs, the first three patterns are not mutually exclusive, while they are with the fourth, i.e. unsuccessful engagement in thorough dialogue. A case of the latter, without escalation into a dispute, may be the eternal trade concern about Viet Nam’s cybersecurity measures, discontinued at the TBT Committee since November 2023 but ongoing as an agenda item at the CTS, which has featured repeated acknowledgements of constructive responses and reactions by Viet Nam.Footnote 136 However, more frequent is a combination consisting of a background of political tensions between members (pattern 2), the respondent member’s commitment to a measure as politically significant (pattern 2), with inertia and superficiality as a result (pattern 3).
The pertinence of envisioning ‘digital’ STCs as reflecting spillover from political disagreements is suggested through the patterns of a grouping of members consisting of the USA, the EU, and others raising STCs about Chinese measures, while China in turn has done so regarding EU measures. This general background is however not the entire picture, as exemplified by two concerns addressed at China by the USA in a recent meeting. On the one hand, STCs raised by the USA and other members about Chinese cybersecurity measures repeated a long-standing pattern of inertia.Footnote 137 On the other hand, regarding another STC about a Chinese ICT-related measure, while the USA noted that ‘some of our concerns’ about the regulation had remained ‘unresolved’ and requested notification of ‘any new mandatory implementing requirements’, it expressed appreciation for a clarification by China.Footnote 138
The general background of political tensions between WTO members is then latent rather than salient for STCs where members do not engage in meaningful dialogue. That salience, instead, originates from another of the factors for the escalation of STCs into disputes: that the measure at stake, from the respondent member’s view, reflects a strong political commitment after a long process of elaboration. These characteristics can be attributed to the EU’s AI Act, or the cybersecurity measures of Viet Nam and China, which in the Chinese case are an outcome of proposals stemming already from – and addressed by an STC in – the 2000s.Footnote 139 Those measures, like those specifically targeting or held by China to specifically target Chinese 5G providers,Footnote 140 all address highly politically sensitive security-related issues. In those cases, ‘national security requirements’, beyond being ‘legitimate objectives’ of technical regulations,Footnote 141 have traits of informally having become a quasi-exception. One result is a lesser, if any, engagement in dialogue. The increased manifestation of such a national security focus and political tensions is not limited to ‘digital’ STCs at the TBT Committee. Rather, it is a ‘broader trend’ whose prominence has been observed also in the case of the – with one exception – ‘non-digital’ trade concerns at the CTG.Footnote 142
In some cases, envisioned or implemented measures targeted by trade concerns involve the self-projection of the responding WTO member. Such an implication is contrary to the typical view of STCs as technical and thereby apt to address divergences outside of the strong impact of politics. For example, China’s STC regarding the proposal for the EU’s AI Act addressed a measure aimed at regulating AI systems. Those systems – and not least their regulation – are a status symbol for WTO members projecting themselves as global powers. The AI Act does not feature clear military and national security connotations, unlike Russia’s or the USA’s concerns with competition about AI.Footnote 143 However, it is a crucial part of a political narrative about a European approach to digital matters based on values that the EU would project on to itself and the world, such as privacy, security through ‘Trustworthy AI’, and sustainability.Footnote 144
The result of the latent overall political tensions between involved WTO members and the salience of respondent commitment to a flagship measure is then corresponding to the traits of inertia and superficiality. In such a situation, members lack engaging in dialogue to resolve divergences about the STC topic. Thus, factors having triggered, in other circumstances, the passage from STC to dispute initiation are present. At the WTO, this could lead to three different courses of action: to confine the divergence to the TBT Committee, to extend the voicing of concerns to other bodies, including the General Council, or escalation of the trade concern into a dispute. So far, no concern about digital trade has escalated into a dispute, but the two other scenarios have materialized. The first – i.e. non-dialogue at the TBT Committee – has become ever more present the more recent ‘digital’ STCs are. The second – a lower-key form of escalation by raising the concern in other bodies, especially the CTG to which the TBT Committee is a subsidiary body, or in parallel the CTS – is still a new occurrence and rare as of the end of 2025. It has not yet extended either to the even more limited cases of trade concerns voiced at the General Council.Footnote 145
5.2 From Members’ Common Understanding about Addressing Issues to Non-Dialogue?
The view of WTO committees and similar bodies as fostering expertise-infused engagement towards a common understanding has faced the criticism that it fails to account for WTO members’ ‘relative power’ as ‘principals’ and their ‘power politics’.Footnote 146 The observations about ‘digital’ STCs raised at the TBT Committee lend support to each of those views. For instance, a sign of a common understanding among involved WTO members can be found in the engagement in STCs – and Thematic Sessions – about measures related to a product such as AI, notwithstanding the TBT Agreement being anchored in the WTO’s framework on goods.
However, while respondents no longer have contested STCs on the grounds of treaty interpretation, increasingly over time the statements of powerful members, such as China, the EU, the USA or – as respondent – India, have tended towards repeating themselves. As a result, ‘digital’ STCs at the TBT Committee have become more frequently characterized by inertia. One observation about China’s STC about the EU’s AI Act may be relevant for many other ‘digital’ STCs: ‘discussions tackle important questions, however there are no deep discussions on the merits or proposal of technical solutions’.Footnote 147 The emergence of clusters and other connections due to theme or member involvement between those STCs has implied that, if one trade concern becomes inert, this situation reverberates on other such concerns, whether across bodies or within one body.
Addressing the inertia and apparent ineffectiveness of non-dialogical STCs has been on the agenda of reform proposals by WTO members for committee work.Footnote 148 However, no matter how appealing the previous observations of a substantive part of ‘digital’ STCs becoming inert might make the prospect of a streamlining seem, two perspectives are relevant. First, the sample size of observations is limited. So far, studies of STCs in general have rather supported their effectiveness in defusing trade tensions,Footnote 149 even though inertia has been sufficiently problematic to trigger calls for their streamlining. Second, more relevantly, while burdensome for frequent respondents such as the EU or China in the case of ‘digital’ STCs, repeated voicing of concerns, especially by more than one member, questions the respondent’s approach to its obligations as a WTO member and maintains ‘justification pressure’ instead of unintentionally suggesting acceptance of that approach.Footnote 150
Keeping trade concerns on the agenda then still is of interest to WTO members. Their leverage is reflected in the CTG’s recent decision about reporting resolved STCs. It leaves members at liberty not only to confirm partial or complete resolution but also to raise a concern again even after it has been confirmed to be resolved.Footnote 151
Questions about the involved WTO members’ commitment to defusing trade tensions or tendency to repeat those in another setting also surround other options. Since STCs affected by inertia more often than not reflect the respondent’s political commitment to a measure, there is reason for scepticism about the involved WTO members sorting out their differences bilaterally – beyond that it would be hardly traceable.Footnote 152 It is difficult to see how bilateral meetings could lead to more dialogue and responsiveness than what has characterized the STCs raised by China about EU measures or those about Chinese cybersecurity measures by the EU, the USA, and a group of other WTO members. Similar doubts may be relevant regarding proposals to resort to mediation-like ‘informal resolution of trade concerns’,Footnote 153 whose pertinence has been evoked for addressing digital trade within the WTO.Footnote 154
5.3 A Reflection of an ‘Imperial’ Pattern in Digital Trade?
All but one of the ‘digital’ trade concerns so far have involved the three so-called ‘digital empires’Footnote 155 – China, the EU, and the USA – either as respondents or a member raising the concern or member supporting it. Reading the observations about these STCs along the lines of a confrontation opposing these three WTO members is suggestive. However, there are important qualifiers beyond the caution required when relying on a snapshot of a small-sized sample – 47 STCs at the TBT Committee, two at the CMA, four at the CTG, six trade concerns voiced at the CTS, with overlap with TBT STCs for half of the trade concerns were raised at other bodies.
A caveat specific to trade concerns with digital connotations raised at the TBT Committee or other WTO committees or councils is that while there are clear patterns of opposition between China on one side and the EU and the USA on the other side, there is no such pattern (yet) between the two latter WTO members.Footnote 156 Another observation is that the USA has been a respondent in much fewer cases than the other supposed digital empires, China and the EU. This situation can be connected to its approach being foremost market-driven and thus much less inclined towards comprehensive rules. Common to the most relevant trade concerns to which the USA has had to respond is that they were raised by China about measures with a strong national security narrative and directed against Chinese providers.
Moreover, focusing on the prominence of the three so-called digital empires might overlook the importance of other WTO members and their approaches, such as the ‘digital sovereignty’ stance of India,Footnote 157 which has repeatedly been a respondent to ‘digital’ STCs related to ICT and telecommunications. Moving even further to the overall picture of how WTO members address digital trade through agreements, including outside of the WTO, the prominence of the so-called digital empires among ‘digital’ STCs is not fully reflective of the role played by others in concluding preferential trade agreements with relevant scope or most recently digital economy agreements (DEAs). Taking the example of the most topical DEA, the Digital Economy Partnership Agreement, among the three founding parties – Singapore, Chile, and New Zealand – only the latter has become involved in ‘digital’ trade concerns.Footnote 158
What is significant about the snapshot of China, the EU, and the USA’s ubiquitousness is rather that it questions the TBT Committee’s and similar bodies’ supposed contribution to address differences through shared information and dialogue among all members ‘in the spirit of pluralism’.Footnote 159
While there are significant nuances to the imagery of three digital empires with each approach being incompatible with the others,Footnote 160 the inertia affecting many of the more recent STCs involving China, the EU, and the USA, highlights a confrontational logic between respondent and ‘concerned members’. This confrontation’s observation suggests that beyond a substitute, these trade concerns may be considered a proxy for the adjudicatory dispute settlement not resorted to by WTO members about certain measures involving strong political commitments by the respondent.Footnote 161 This non-resort can be, on the one hand, related to the AB’s incapacitation. However, on the other hand, WTO members may be reluctant to establish an incompatibility with obligations, as the impugned measures may contain policy options of interest to the complainant. Exemplifying ‘disputable’ matters are trade concerns about:
• cybersecurity measures as an outcome of national security interests, especially China’s MLPS-related measures and Viet Nam’s legislative and implementing measures;
• measures also related to national security affecting Chinese ICT equipment related to the 5G technology as well as applications provided by Chinese companies;
• EU measures, epitomized by the AI Act, with China raising STCs at the TBT Committee.
WTO members’ political stance in trade concerns about these measures are resembling those found at the tip of the iceberg, i.e. other politically permeated areas such as dispute settlement and its reform or negotiating agreements. Among concerns about digital trade, inertia involving political issues has expanded more than technical dialogue, which suggests that the cracks found at the tip of the iceberg are also found in the submerged part’s core, i.e. the more technical and case-related work in sectoral Committees and Councils. That scenario’s materialization would imply that Committees’ and Councils’ practices could end up being shaped by current, rather confrontational, political patterns, similar in that to negotiations about, notably, an e-commerce agreement or to the initiation of a dispute. One element putting the disquieting imagery into perspective is however that neither the so-called digital empires nor other WTO members have abandoned the instrument of voicing concerns on digital trade. As well, their use of this instrument is not limited to repetitive ‘performances’ and ‘theatrics’ with the purpose of shaming other members or appeasing domestic interests.Footnote 162
6. An Incremental and Multifaceted Approach to the WTO’s Role
The observations of ‘digital’ trade concerns, especially the STCs raised at the TBT Committee, leave a somewhat muddled picture about the prospects of defusing tensions about digital trade, not only formally through absence of escalation into a dispute but materially through resolving these tensions. A qualifier to findings about STCs in general providing for such resolution is that digital trade issues have at least in part moved so much to the forefront that they are in political focus. Under such circumstances, ‘it is difficult for committees or diplomats to come together and resolve issues informally or at the committee level’.Footnote 163 By implication, as suggested in relation to the interest of WTO members to repeat the same statements about trade concerns, efforts to streamline the voicing of concerns may not be the most adequate prioritization.
Less clearly directed at members and incremental is the question whether the task of ‘defusing by committee’ can be performed within a specific committee’s framework and through the means of STCs only. In 2024, the TBT Committee’s chairperson referred to the then ongoing Triennial Review process of the committee as an avenue to address the ‘need for cross-cutting discussions’, replying to remarks – exceptional for a ‘digital’ STC – about a less-siloed approach’s desirability by the representative of China in response to an STC.Footnote 164 The process has resulted in an agreement ‘to hold joint thematic sessions with other WTO bodies on topics of relevance to the TBT Agreement’, including non-tariff measures related to the ITA,Footnote 165 which connects to digital trade. Not within the envisioned steps is how to address that WTO members raise the same trade concern or even bring up the same issues simultaneously across WTO bodies, resulting in inert ‘digital’ trade concerns sprawling across Committees, the CTG, and the CTS. Neither does the present development clearly relate to embattled issues such as AI or cybersecurity measures.
Yet, the move towards more crosscutting engagement among WTO committees and councils has the potential for stealthily strengthening the WTO’s relevance in digital trade. Indeed, the TBT Committee is exemplifying how to map measures of concern, best practices, and standards, and thereby providing ‘a helpful starting point’.Footnote 166 What is more, the committee’s practices provide a unique interface of multi-stakeholder discussions that include input from standard-setting bodies and businesses in Thematic Sessions,Footnote 167 STCs as ways to assess compliance with treaty-based obligations, and addressing technological, political, and economic factors through interaction at an expert technical level. Moving further down these avenues might make the WTO’s role in digital trade more reliant on a ‘flexible, soft approach’ resembling other organizations’ ‘focus on the incremental development of norms and best practices for highly dynamic digital sectors’.Footnote 168 As for now, notwithstanding ‘digital’ trade concerns that have become a vehicle of political interests instead of technical dialogue, the WTO’s contribution to digital trade ‘by Committees and Councils’ still does not suggest a tipping point, or even a meltdown, in this submerged part of the iceberg.
Supplementary material
The supplementary material for this article can be found at https://doi.org/10.1017/S1474745625101377.
Acknowledgements
This article has much benefited from dialogue with Milena de Fonseca Azevedo. I also wish to thank Bugge Thorbjørn Daniel for encouragement and comments on previous drafts, Graham Butler, two anonymous reviewers, Triplicane Damodaran Satish, several WTO officials, Sophie Bro Mikkelsen and Wafaa Saadeh. Errors and appreciations remain my own.
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