Autonomous Vehicles and the Infrastructure of the World Trade Law

Abstract

The development of new technologies, particularly autonomous vehicles, poses significant challenges and opportunities for international trade law. Legal frameworks must adapt to technological shifts while facilitating cross-border commerce. This paper examines the relationship between emerging technologies and the existing infrastructure of world trade law, focusing specifically on how current WTO agreements address technological developments. The analysis employs a legal doctrinal approach, examining the applicability of key WTO agreements to new technologies through the lens of technology-neutral interpretation. Departing from ‘dialectical relationship theory’ (Cottier), the research investigates the influence of new technologies on the legal infrastructure of international trade and how the latter can respond to their use and development. Current WTO frameworks demonstrate technology-neutral applicability to emerging technologies, including autonomous vehicles and related services. However, the paper identifies significant practical limitations arising from the ‘mosaic’ nature of member state commitments and varying levels of liberalization across relevant technology-related sectors. The findings suggest that, while the existing WTO infrastructure theoretically has the capacity to accommodate technological advances, realizing the full benefits of global trade in new technologies may require either the harmonized extension of WTO member-state commitments or the adoption of specific legislation to address current regulatory fragmentation.

1. Introduction

“It’s been a criminal offence for—oh, at least a hundred years—to drive manually on a public highway. Though we still have occasional psychopaths who kill themselves, and other people.” [1]. In his novel Imperial Earth, Arthur C. Clarke transports readers to the 23rd century, a time when humanity has already established a foothold across much of the Solar System. The protagonist embarks on a voyage of discovery from a colony on Saturn’s moon Titan to Earth, which implies a high level of technological development in the area of autonomous mobility—one of the challenges of our time. The above quotation adequately illustrates this: we can presume that the technological basis for self-driving vehicles is stable by the time of the novel’s plot, and that the legal challenges posed by autonomous vehicles are not a concern for legislators. Moreover, the novel reveals even more. The ‘Empire’s’ trade relations do not raise complex legal issues either, as the Trade Department of the Titan Embassy has exclusive control over foreign trade between Earth and Titan. In modern terms, this could be interpreted as a monopoly on foreign trade.

However, given our current circumstances, Clarke’s vision seems very distant, even though the introduction of autonomous vehicles (AVs) is increasingly the subject of predictions. The technological basis for self-driving cars is already in place, with road tests being carried out in several countries; however, safe operation requires further development. Optimistic predictions estimate that AVs will be introduced to the mass market by 2040 [2], and it is anticipated that professional driving jobs will disappear by the end of the 2030s, alongside accidents, road signs, and private cars [3]. Nevertheless, a complete technological shift is not expected to occur immediately after the introduction of autonomous vehicles; rather, self-driving cars will coexist with vehicles at different levels of automation, just as cars with partial automation (advanced driver-assistance systems) coexist with conventional vehicles today.

The legal system must prepare for this technological shift and the coexistence of different technologies. In recent years, legal scholarship has become increasingly engaged in this field, with research on the legal challenges of autonomous vehicles becoming a popular topic. This research primarily focuses on fundamental issues of civil law [4,5,6,7,8,9], ethical and legal theory [10,11], criminal law [12,13], and traffic law [14]. The perspective of legal scholarship has also increasingly appeared in interdisciplinary research topics, where the main discipline is related to scientific areas far removed from law but takes legal problems as its starting point [15]. Furthermore, studies in non-legal scientific disciplines often rely on the legal framework [16,17].

Compared to classic areas of law, the problems of international trade law (world trade law) are less specific and can be understood as a more general technological challenge. This means that international trade law mostly considers technological achievements as subjects of international trade, such as products or services. Consequently, the innovations behind self-driving cars do not raise the same fundamental questions as those in criminal or civil law relating to responsibility, or the ethical issues elaborated in legal theory (e.g., how artificial intelligence should act in critical decision-making situations). Recent scholarship also highlights that digitalization is reshaping trade patterns and the operation of WTO rules, revealing gaps and demonstrating the adaptability of core principles to digital and data-driven commerce [18].

Taking this broader perspective into account, the paper discusses the challenges facing world trade law in the wake of a new technological revolution. The main question is whether the current infrastructure of this area of law can provide adequate responses to these challenges. The article maps the tools available in international trade law and then examines how the WTO could address novel problems arising from digitalization that did not exist when it was established 30 years ago.

2. Assumption and Consideration

The research combines non-empirical, doctrinal legal analysis with conceptual and comparative approaches. ‘Legal doctrinal analysis’ is defined as the systematic examination and interpretation of legal sources, such as international agreements, statutes, and the jurisprudence of relevant judicial bodies, in order to determine their meaning, scope, and applicability within the established legal system [19,20]. The term ‘doctrine’ refers to a synthesis of these concepts and sources, i.e., various rules, principles, norms, values, etc. that justify a segment of law as part of a larger legal system [20]. This process relies on established methods of statutory interpretation, historical and comparative analysis. In other words, doctrinal legal research aims to systematize, rectify, and clarify the law on a particular topic through a distinctive analysis of authoritative texts arising from a variety of legal sources [19]. This method, therefore, approaches legal problems predominantly through textuality and interpretation, which is why it is often referred to as the ‘black-letter method’ of legal scholarship [19].

To understand the role of international trade law in addressing the challenges posed by new technologies, the paper considers this area of law to be a ‘legal infrastructure’. The concept of legal infrastructure [21] refers to law itself as a form of infrastructure comprising interconnected legal norms, practices, and institutions, predominantly the legal framework of the WTO. The doctrinal research questions generally need to identify the relevant sources [22]. Therefore, the sources were selected based on the following two criteria: first, they are relevant to the core research problem introduced in the subsequent section; second, they are relevant to trade in technological products, such as autonomous vehicles. Logically, irrelevant sources were excluded from the scope of the investigation. The paper offers the doctrinal analysis of WTO sources, including GATT, GATS, TRIPS, TBT, TRIMs, SPS, and the ITA. Relevant agreements, interpretative notes, and other sources are contextualized alongside WTO dispute-settlement reports in order to test the technology-neutral principles of WTO law.

To highlight the relationship between legal infrastructure and technology, the paper first traces how earlier technological revolutions triggered legal adjustments and how law itself reacted to technological development. In this context, the analysis is conceptually informed by the dialectical relationship theory elaborated by Cottier [23]. The paper then conducts a legal mapping of the current infrastructure of international trade law, constructing a typology of regulatory methods which could help to address the technological challenges of today (technical cooperation, minimum harmonization, maximum requirements, mutual recognition or equivalence, and unification). The paper concludes with de lege ferenda proposals.

It is important, however, to highlight the limitations of this paper. While the article focuses on the substantive rules of WTO law, it does not explicitly address the current institutional challenges facing the WTO, including the paralysis of its dispute settlement mechanism [24,25]. While it is difficult to deny that this crisis has implications for the practical enforceability of WTO norms, this legal order nevertheless remains valid and binding for the organization’s 166 members. Member states are continuing to negotiate a resolution to the dispute settlement crisis, and certain members—actually 57, including Australia, Canada, China and the EU—have found a temporary solution to restore dispute settlement in the form of a specific arbitration that is currently capable of fully replacing the function of the Appellate Body (Multi-Party Interim Appeal Arbitration Arrangement) [26]. Furthermore, new member states have recently joined the WTO, and a further 22 countries are currently seeking to accede. Although the WTO is facing a crisis, it still exists and operates; therefore, it would be premature to say that it has lost its significance. Of course, it cannot be ruled out that we are currently witnessing a paradigmatic shift in the international trading system that will impact the rules-based approach and influence the reform of WTO law. What is almost certain, however, is that this reformed, future legal order must address the trade implications of new technological challenges. Nevertheless, this is a matter for the future and is therefore beyond the scope of this analysis. As explained above, the aim of this paper is to assess whether the current legal infrastructure of the WTO provides an adequate legal infrastructure for governing trade in products and services based on new technologies. The crisis itself and its institutional dimension are acknowledged as important but should be addressed in separate research.

3. Analytical Results

3.1. The Dialectical Relationship Between Technological Progress and International Trade Law

The interplay between international trade law and technological developments has been significant for a long time, even before the current digital industrial revolution. Technological change has been a major driver of international trade in the context of changing societal circumstances, and legal regulation has necessarily had to respond to this [27]. These changes have mostly been indirect; technology has primarily affected trade flows, consequently posing new challenges for international trade regulation. We need only consider the impact of steamships and railways on cross-border trade relations. These technological advances led to new transactions in international trade and gave rise to new legal problems that international trade law had to address [28]. From the advent of railways and steam engines to the telegraph, the internet, and the latest technological achievements, technological progress has primarily reduced the costs of trade, thereby indirectly influencing production and consumption structures. However, technological progress does not automatically guarantee these benefits; for example, greater and more predictable trade chains. Rather, recent centuries have shown that the most beneficial trade effects can be achieved when technological progress is controlled by legal infrastructures, including international trade law regulations. Specifically, new technologies, such as developments in transportation, have helped to channel products from local and national markets into international trade much more efficiently, thus expanding the scope of international trade. This context remains relevant today in an era of globalizing trade relations and global value chains.

Moreover, we are currently witnessing an equally intense period of technological development. In this context, international trade law is being confronted with challenges in a massively changing economy. The challenges stem not only from technological change itself, but also from the fact that the pace of technological revolutions has accelerated significantly in recent centuries. Early technological changes took generations to become widespread in everyday practice, whereas the transition from analogue to digital technologies took only a few decades [29]. Nowadays, ‘disruptive technologies’ have the power to transform our lives overnight.

However, new technologies are not only making trade flows more effective but also increasing the volume of international trade. Digitalization, artificial intelligence, and automation are leading to the creation of new products and services. They are also shedding light on some of the core issues of international trade regulation, such as intellectual property rights, the application of standards, and technical regulation [2,10,28]. Some of these challenges stem from the fact that, while the framework for the application of emerging technologies is primarily set by national legal norms—or regional integration frameworks, such as EU law—these norms, technical rules, and standards still differ significantly at present. Consequently, heterogeneous national regulations also constitute a barrier to international trade, hindering the spread of products and services based on new technologies. Therefore, the main task of international trade law is to harmonize or unify the rules on new technologies where appropriate. On the other hand, the specific impact of certain disruptive technologies cannot be neglected; for example, they subvert classical forms of international trade and require intervention in completely new channels, instruments, and transactions, and, in some cases, even the creation of new, revolutionary legal infrastructures. Digitization is blurring the traditional distinction between goods and services [30], and the development of digital technologies is drastically changing the way trade is conducted. Today, not only the internet and various platforms, but also more specific applications such as the Internet of Things (IoT) are having an impact on trade. The IoT can make it possible to trace products from the beginning of the production process to delivery to the consumer, thus simplifying the application of trade barriers, customs borders, and safety and technical standards. Moreover, this technology is also completely transforming the financial environment of international trade by relying on progressive payment methods or cryptocurrencies [31]. There is also growing potential for artificial intelligence to be applied to optimize trade processes and for blockchain technology to streamline the contractual framework for international trade transactions. Most importantly, these technological changes may reduce the cost of international trade itself [23,32,33,34].

At a more abstract level, Cottier convincingly describes the relationship between technology and international trade law as dialectical [23]. Put simply, this dialectic is ensured by the interaction between technological development and law within the framework of international trade law. This framework is influenced not only by technological improvements and modernization of external trade conditions (e.g., transportation and communication), but also by the regulation of the objects of international trade (e.g., technology-dependent transactions). This relationship is easy to understand when we consider that a significant proportion of goods traded internationally are technology-based products (‘physical’ products such as devices and parts). Furthermore, international trade in services depends not only on the framework provided by technological achievements, but also on the services themselves being technological achievements (e.g., international telecommunications services and cloud computing services). Clearly, the technological revolution has also led to the emergence of services that are already the subject of international trade.

In other words, the relationship between international trade law and technology is influenced by two different factors. Firstly, the infrastructure of this area of law must reflect technological development, as this shapes the space in which international trade takes place. Secondly, the law must respond to changes affecting the subject matter of international trade, specifically technology that creates new products and services or transforms previous products, presenting them at a higher level of modernization. By responding to these changes, the law mitigates the risks posed by new technologies and establishes a framework for their application by introducing technical regulations, standards, and other sector-specific norms. However, this change is usually first reflected in national laws. Differences in regulatory approaches applied in national laws can negatively impact international trade flows because diverging national regulations can constitute barriers to cross-border trade. Therefore, international trade law plays an important role in this respect because it ultimately promotes the expansion of international trade by harmonizing national standards—including mutual recognition where appropriate—and by removing regulatory barriers in the form of non-tariff measures.

Moreover, another essential feature of this dialectical relationship is that legal regulation itself has repercussions for technological development. National laws also play a significant role in shaping the legal environment for the application and development of technologies. Examples include domestic commercial laws, competition laws, tax laws, administrative trade rules (e.g., licensing systems), or industrial property rights. International trade law is also relevant in this respect, setting the framework for these national rules and influencing their application to prevent states from discriminating against other states through their domestic trade law infrastructures. Thus, international trade law encourages growth in trade associated with technological development by establishing a legal framework for the use of technology at a global level. At the same time, it removes trade barriers, such as national rules that restrict the use of technology, but it also leaves countries with the leeway to address the negative social, health, or environmental impacts of technologies (e.g., they can rely on exemptions in order to restrict the trade in technological products that harm the environment) [28].

The foregoing analysis suggests that technological development is an important factor influencing legal regulation, and that the latter can respond directly to the use and development of technologies. The following subchapters examine this dialectical relationship in the context of the current legal infrastructure of the World Trade Organization.

3.2. The Technological Challenge of WTO Law: The Available Methods

The main question this analysis addresses is how the current infrastructure of international trade law can respond to the challenges posed by technological developments. A relevant approach would be to consider the fundamental role of international trade law, which aims to ensure consistency between different national legal systems and to prevent national technology provisions from leading to trade restrictions. To achieve these objectives, international trade law employs various tools, ranging from technical cooperation between states to the harmonization of norms and the development of uniform international rules.

Table 1. Regulatory toolbox of the WTO law.

Regulatory Methods	Opportunities	Weaknesses	WTO Legal Framework	Current Status, AV Related Examples
Technical cooperation	Preserves national regulatory autonomy	Creates fragmented markets and divergent standards	Information and notification obligations in TBT Agreement (Art 2.9, 2.6)	As this tool requires voluntary convergence, diverging national provisions remain. Standard-setting organizations and bodies (UNECE WP.29/GRVA, etc.) can facilitate cooperation, e.g., AV testing and validation protocols
Minimum harmonization	Establishes floor standards, creating convergence at a baseline while preserving regulatory flexibility above this level	Countries can still restrict international trade by imposing stricter standards, which might undermine its efficiency	Baseline substantive and enforcement standards for all main IP rights, TRIPS Agreement (Art 1.1, 7–8, Parts II–III)	Providing protection of patents on AV hardware and sensing (LiDAR, camera systems, V2X communication, energy-efficient drivetrains, etc.); copyright for AV software and algorithms (AV perception, planning, and control software, e.g., neural-network-based lane detection, object recognition, routing, eco-driving algorithms, etc.)
Maximum harmonization	Maximum requirements prevent member states from imposing overly restrictive measures	Restricts effective policy instruments for developing domestic sectors	GATS Reference Paper on telecommunication services (1996, binding only for those member states, which have committed to it); SCM Agreement (Prohibited subsidies, Art 3); GATT and TRIMs (prohibition of local-content and trade-balancing requirements);	Key AV jurisdictions such as the EU, US, and Japan have scheduled basic commitments and incorporated the GATS Reference Paper as additional obligations; thus, e.g., 5G-based connected mobility can rely on competitive 5G telecom markets with non-discriminatory interconnection and open network access. In addition, rules form a hard ceiling on how states can design AV industrial support schemes.
Mutual recognition	States retain their own standards but agree on mutual trust in procedures and authorities, which is politically less demanding than adopting identical rules	Dependence on mutual trust and administrative capacity; bilateralism/regionalism can sideline non-participants and deepen fragmentation	TBT Agreement Art 6.3 enables mutual recognition agreements (MRAs), which constitute MFN exceptions	E.g., US-EU Mutual Recognition Agreement on Conformity Assessment (1998) covers automotive products, including vehicle components and safety systems. Extended discussions on sensor and AV system approvals where US NHTSA type-approvals are recognized in the EU, and vice versa. Mutual recognition may also have a ‘spill-over’ effect at the multilateral level, see mutual recognition of AV type-approval, sensor testing, cybersecurity audits (UNECE Reg. 155/156 certification from one country accepted in another, or the discussions on the draft UN regulation on ADS).
Acceptance of Equivalence	Stronger reassurance to companies and consumers, as the importing country explicitly accepts that foreign standards deliver the same protection level. Eliminates duplicative regulation entirely, no re-testing or re-certification needed.	It demands substantive policy alignment, making equivalence a method suitable mainly for very close regulatory partners; it works well bilaterally or regionally, but is nearly impossible with many partners due to trust and capacity differences.	Only a recommended tool in WTO law (‘assurance of conformity’, TBT Art 6.1), more common in deep integration (e.g., EU, EEA, CETA).	E.g., EU internal market law may provide full AV equivalence (AVs or ADAS precursors type-approved under UNECE WP.29 regulations in one EU Member State would be automatically accepted across all 27 EU states without further testing or certification). In the EEA, non-EU EEA members fully accept EU UNECE vehicle type-approvals; thus, e.g., an AV certified in Sweden would operate seamlessly in Norway under complete equivalence.
Unification	Maximizes market integration and removes regulatory divergence	Politically difficult to achieve (166 WTO member states), and the WTO law itself provides general exceptions	It remained a rare and exceptional tool in WTO law, with a reference to the uniform application of international food safety standards in the SPS Agreement, but Members retain the right to apply stricter standards.	AV standardization through standard-setting bodies faces significant obstacles to true unification, e.g., due to the technical complexity, rapid evolution of technologies, and divergent regulatory philosophies of countries.

below outlines this toolbox and compares the different regulatory methods.

The most basic form of aligning different regulations is technical cooperation. While this cooperation does not affect national autonomy in decision-making and regulation, it allows for informal and formal exchanges of views, as well as the coordination of tasks related to research, education, and technology deployment (e.g., testing and licensing). Reciprocal cooperation may involve mutual information and coordination between research institutions and agencies in two or more countries, including discussions about proposals for technical specifications and standards. At the multilateral level, the WTO TBT Agreement imposes information and notification obligations on WTO Member States when creating any standard that may constitute a technical barrier to trade. The results of these discussions must be taken into account by member states when creating rules or standards (see TBT, Article 2.9). In WTO practice, the concept of technical regulation is interpreted broadly. In the US–Tuna II case (DS381), the DSB clarified the definition of technical regulations under the TBT Agreement, ruling that mandatory compliance with labeling provisions, for example, constitutes a technical regulation [35]. This argument was supported again in the US–COOL cases (DS384 and DS386) [36,37]. Subsequently, in the Clove Cigarettes case (DS406), it was determined how non-discrimination obligations apply to technical regulations. These domestic norms must be applied equally to similar products, regardless of their origin. It was therefore found that the differential treatment of imported products violates the national treatment principle. These provisions should be applied regardless of the products involved [38]. Even today, standards, certifications, and labeling requirements for AVs may give rise to similar practical questions. Even in the absence of specific WTO rules governing autonomous systems, existing TBT standards and conformity assessment schemes would apply to new technologies [39]. In practice, this means that WTO members have limited regulatory leeway, even though technical cooperation is a flexible method. Member states should establish their national standards in accordance with WTO legal principles. Furthermore, cooperation can only be successful if the relevant states are able to converge their regulatory priorities, which can easily lead to convergence. Without this mutual understanding, cooperation alone cannot produce results [23,33].

However, it should be noted that while the TBT Agreement establishes the legal framework for managing technical barriers by referring to international standards, the development and coordination of technical specifications for complex technologies such as AVs actually occurs through a multi-layered system of standard-setting organizations. The United Nations Economic Commission for Europe (UNECE), through its World Forum for the Harmonization of Vehicle Regulations (WP.29), develops UN and Global Technical Regulations that form the technical basis for AV standards. Complementary standards for vehicle connectivity and cybersecurity are produced by the International Telecommunication Union (ITU-T) and the non-governmental organization, the Institute of Electrical and Electronics Engineers (IEEE). These UNECE, ITU-T, and IEEE standards do not operate in isolation from WTO law. Rather, these standard-setting bodies are referenced in TBT Article 2.6 as ‘appropriate international standardizing bodies’, and their standards are ‘international standards’ under TBT Article 2.4. In other words, the WTO TBT Agreement provides a global ‘umbrella’ to ensure that WTO Members’ standards do not create unnecessary obstacles to trade. The TBT itself does not constitute technical rules; however, it incorporates these multi-source standards and mitigates their adverse trade effects. This interrelation between the WTO and the standard-setting bodies is not only enshrined in the TBT but also taken into account by the independent standard-setting bodies. A striking example of this is the IEEE, which explicitly adhered to WTO TBT principles for international standardization in 2020 [40].

Compared to technical cooperation, a higher level of cooperation involves setting minimum requirements. In this case, international trade law establishes an obligation in the form of a specification, standard, technical rule, or other technical norm that must be accepted by all the relevant countries. However, this international rule-making does not entirely restrict countries’ ability to define additional rules on technologies at the domestic level. WTO rules on intellectual property rights follow a similar logic. The TRIPS Agreement establishes a minimum level of protection and requires WTO Member States to comply with it, while also allowing them to provide more stringent protection. For example, TRIPS provides for a minimum of twenty years of patent protection, but Member States may apply stricter rules in the pharmaceutical sector. It is also notable that some preferential trade agreements extend the minimum TRIPS rules comprehensively with so-called ‘TRIPS plus’ provisions. This regulatory approach effectively results in minimum harmonization of technology requirements, but the level and content of these requirements can vary considerably from one country to another.

Trade legislation that sets maximum requirements for technology standards operates according to a different logic than previous regulatory methods [28]. The rationale behind maximum requirements stems from the shortcomings of minimum requirements. Setting a minimum level of requirements does not eliminate the potential for trade barriers, since countries can restrict international trade by imposing stricter requirements on technologies. Therefore, introducing regulatory ceilings and maximum standards can prevent barriers to trade, promote international competition, and reduce the risk of monopolies. In WTO law, this approach is considered exceptional; a notable example is the plurilateral obligation in the GATS on telecommunications services. Nearly half of WTO members have adopted the principles set out in the Reference Paper [41], which includes limits on technology regulation in this sector as a good practice. Additionally, all WTO provisions that establish the framework for technology-related trade rules (e.g., subsidies) can be considered maximum requirements [42].

The mechanism for the mutual recognition of technology standards should be mentioned in particular among the methods of international trade law. Mutual recognition involves accepting the technical norms and standards established by other countries [28]. This can occur without explicit coordination on the basis of reciprocity, but is most often achieved through bilateral mutual recognition agreements [43]. The recognition rules in these agreements can be considered as preferences granted to the parties involved, and therefore constitute an exception to the most-favored-nation principle (see Article 6(3) of the Technical Barriers to Trade (TBT) Agreement). Mutual recognition agreements essentially rely on the acceptance of the reliability of the certification and approval authorities recognized by the parties involved, as well as the mutual trust this implies. Based on this, products approved by the exporting country’s authorities are accepted in the importing country as if they had been approved by the importing country’s own authorities. Mutual recognition can therefore significantly facilitate the dissemination of certain technologies in countries covered by these agreements.

Acceptance of the equivalence of standards differs from mutual recognition and goes further in certain respects. Equivalence of technical specifications means that the product or production process requirements imposed by another state are considered to be of equal value, despite existing differences. In other words, once a product has been lawfully placed on a country’s market, the importing state recognizes the lawfulness of trading this product on the basis that foreign regulations provide a similar level of protection, even if they are not defined in the same way. Equivalence presupposes a high level of mutual trust between countries and, crucially, concerns trade between countries in general rather than being product-specific. Examples of equivalence can be found in regional integration (for instance, the EU’s internal market rules or trade in goods covered by the European Economic Area Agreement), but the WTO does not require equivalence of standards. The TBT Agreement only recommends that parties apply equivalence; it does not oblige them to do so under WTO law. The principle of equivalence may also be reflected in free trade agreements alongside regulatory cooperation between the parties. A striking example of this is the CETA [28].

Finally, the introduction of uniform regulation (unification) is worth mentioning among the various methods of regulation. Unification would result in a single standard applying to all participating countries. Since the applicable rules will be identical, this will effectively remove barriers to trade and establish a level playing field. In terms of technology, unification can also mean uniformity of norms relating to the production and sale of goods or services. However, this method has so far remained the exception in international trade law. For example, the WTO TBT Agreement refers to harmonized standards, while the WTO SPS Agreement refers to uniform food safety standards, providing for their application where WTO Members concerned are specifically bound by these uniform rules. However, under WTO law, Member States must retain the option of applying stricter standards instead of uniform standards, as stricter rules could lead to trade restrictions and significantly undermine the efficiency of uniform standards. The Appellate Body report EC—Hormones (US) (DS26) on hormone-treated meat explicitly reinforced this leeway of WTO Member States [44].

However, there is no doubt that greater harmonization of standards could have an impact not only on the countries concerned. When markets with high trade volumes cooperate on standards, this can also have a spill-over effect, with other third countries often voluntarily adopting the standards or technical norms. This process is particularly important for new technologies that are about to be introduced. Spillover effects arising from cooperation between key players such as the US and the EU determine the basic technical standards that will be applied to a given technology over a long period of time. Consequently, even bilateral cooperation can have a global impact: technical regulations and standards that link large markets can be adopted by other non-member states, resulting in new voluntary global standards, which can eventually be formally adopted at the multilateral level by international standard-setting organizations. This also plays a key role in the further development of technology. The standards disseminated globally in this way will, of course, also influence production and further development. It is therefore no coincidence that a kind of ‘competition between standards’ emerges as new technologies are introduced. The logic behind international trade law can therefore provide a lesson for the introduction of AVs, given that the development of the technology thus far has produced several cases in which the competition has not been won by the most efficient or consumer-friendly standard [45]. This means that a standard that is less technically sophisticated and less efficient can become globally accepted due to the intervention of other external factors. An example of this is the competition between VHS and Beta in the 1970s, which shaped video formats and eventually led to VHS becoming the dominant standard, despite its inferior quality compared to Beta.

3.3. New Technologies: The Response of the World Trade Law

Following the mapping of regulatory approaches, we can ask how the current WTO legal infrastructure can respond to today’s technological challenges. Although the core of WTO law was created 30 years ago, this infrastructure remains relevant in the context of digitalization and new technologies. It would therefore be an exaggeration to suggest that the present technological revolution is taking place in a vacuum [46]. Nevertheless, it is clear that these challenges may necessitate adjustments to the current rules or the establishment of new ones in certain areas.

WTO law governs the process of international trade in new technologies through a number of instruments. In this respect, the WTO’s key principles of non-discrimination, most-favored-nation treatment, and national treatment are crucial in sectors affected by new technologies. In addition to its general rules, the WTO has specific agreements on trade in goods and services, the protection of intellectual property rights, and other provisions relating to subsidies, technical rules, public procurement, and trade facilitation. These agreements contain norms that may affect specific issues related to digital technologies [47].

In addition to the core WTO standards for trade in goods, Member States have made new commitments in some areas over the last two decades. The Information Technology Agreement (ITA), which supplements the rules on trade in goods, is relevant to the present topic. The original agreement was concluded by WTO members at the Ministerial Conference in Singapore in December 1996, entering into force the following year [48]. It provides for the elimination of tariffs on all IT products covered by the agreement on a most-favored-nation basis. The ITA covers around 200 tariff lines, including computers, telephones, and parts and machinery for producing information technology equipment. The zero-level tariff approach granted by the ITA has played a significant role in the rapid development and expansion of trade in IT products. While trade was drastically increased, technological developments have significantly transformed the IT sector, but the range of products covered by the ITA has remained unchanged. Consequently, in 2012, the EU, the US, Japan, South Korea, Taiwan, and Costa Rica began negotiations to expand the agreement’s product coverage. These negotiations were subsequently extended to 21 additional member states and resulted in an agreement on 24 July 2015 to include an additional 201 IT products in the list [49]. The original list covered products that form the basis of IT for AVs, and the new list includes other essential equipment such as next-generation semiconductors, GPS navigation systems, telecommunications satellites, touchscreens, optical lenses for cameras, and ultrasonic sensors. Under the extended agreement, participants were required to submit schedules for all products, with transition periods of up to seven years [28]. The agreement is now being implemented, which will result in most of the previously applied tariffs being eliminated after the transition period. Alongside the long-term commitments achieved, the ITA will strengthen global value chains for IT trade and facilitate the diffusion of technological progress and the transition to digital technologies. This will undoubtedly contribute to creating more favorable conditions for developing the technologies required for autonomous driving. Regarding the legal framework for trade in goods, multilateral talks on electronic commerce have been ongoing since 1998, in addition to the ITA. Although negotiations entered a more intensive phase twenty years later, no agreement has yet been reached between the parties [50,51,52].

The level of liberalization in other areas of international trade, beyond trade in goods, is relatively less impressive. Since 1995, Member States have been negotiating the application of the WTO’s rules on services (GATS). The sudden increase in international trade in services at the time of the WTO’s establishment made it necessary to regulate this sector, resulting in the GATS agreement. A key question regarding new technologies and digitalization is whether GATS can be applied to digital trade and traditional service provision in view of the application of new technologies. As mentioned above, today, hardly any service sector can be considered unrelated to trade in digital services, making GATS indispensable to the system of international trade law applicable to new technologies. Nevertheless, it is important to note that prioritizing services over goods, or ‘servicification’, is also relevant from a WTO perspective [53]. In the automotive industry, for example, services will become increasingly relevant for traditional products. Today, when we buy a new car, we often purchase additional services from the manufacturer, but this will be even more so for autonomous mobility.

However, the fundamental question is whether the GATS can cover the new results of digitalization that have emerged since its creation due to technological developments. To answer this, we must first examine the scope of the GATS (Article I.3). This shows that the application of the GATS is not dependent on the channel or technological background of the service. It is therefore significant that the GATS takes a technology-neutral approach, [54] which has also been confirmed by WTO dispute settlement case law. The US–Gambling (DS285) [55] case was crucial in establishing technology neutrality, confirming that the GATS applies to internet services such as online betting and treats electronic supply similarly to physical delivery [56]. This decision clarified that WTO market access commitments also cover new technological innovations. Consequently, cross-border online gambling services cannot be restricted without considering the constraints set out in WTO law. The GATS applies to trade restrictions in these sectors, as well as to national regulations affecting digital trade in services. This applies even if the digital services in question did not exist when the GATS was formulated. Consequently, if legislation of a WTO member impacts international trade in services, it could potentially be subject to the GATS. In this case, the general obligations and concessions provided by the member states in question would apply.

These obligations cover a wide range of measures taken by WTO member states. Even in the hypothetical case of self-driving vehicles, which require interoperability and continuous network connectivity—presumably via 5G—it is evident that domestic measures could interact with issues addressed by the GATS across a variety of sectors. For instance, government measures relating to network access, relevant standards, authentication, encryption, and data protection could directly impact the applicability of the GATS. However, national regulations relating to the introduction of self-driving vehicles that are indirectly linked to the services sector could also come into focus, such as those relating to consumer protection, cybercrime, and cybersecurity. From a practical point of view, however, the varying degree of liberalization in sectors relevant to new technologies, such as telecommunications, computers, audiovisual services, and financial services, remains problematic. Examples range from broad liberalization commitments to restricted sectors such as content-related services. Trade conditions for new technologies and self-driving vehicles are significantly affected by the fact that Member States face broader liberalization requirements in computer and related services among the services covered by the GATS. For example, the European Union has extended its concessions to encompass all computer services sectors identified in the GATS, including consultancy services related to computer hardware installation, software development, and data processing. Although relevant WTO dispute settlement practice is not yet well established, these commitments presumably leave Member States with only a very limited margin of maneuver to impose restrictions. Given the complexity of self-driving vehicles, which are both a commodity and a service, the EU’s commitment in this area could be crucial for the development, production, trade, and operation of these vehicles.

A closer look at WTO law makes the relevance of TRIPS even clearer. Alongside its substantive rules, it essentially attempts to establish the basis for international protection of intellectual property. In this sense, the TRIPS Agreement is a stepping stone towards the international IP rights system (e.g., WIPO). Alongside these rules, it establishes a fundamental procedural framework to ensure the effective enforcement of IP rights. Importantly, TRIPS can be applied in a technology-neutral way, as was the case with GATS. This principle was confirmed by the panel in the case of China—Intellectual Property Rights (DS362) [57]. The dispute addressed domestic legislation on copyright protection for technological works (software, digital publications, and audiovisual products), revealing how national IP enforcement regimes can hinder technology transfer and digital trade (e.g., by denying copyright protection for software or allowing confiscated pirated goods to be re-entered into commerce via auctions or donations). Most significantly, the panel’s findings introduced minimum TRIPS enforcement standards for technology products, requiring members to comprehensively protect intellectual property rights. Therefore, TRIPS appears applicable to technology products as well. The minimum IP protection and enforcement standards, including industrial design and software copyright, patents, and industrial designs, as well as procedural obligations binding WTO member states with regard to counterfeited goods, are essential to the industry of self-driving vehicles.

The TRIMs Agreement, which is concerned with the regulation of trade-related investment measures, might also be relevant for technology-related issues that are addressed by the instruments of member states. Consequently, TRIMs can also be integrated into the regulatory framework that provides the international trade law framework for digitalization. The technological relevance of the TRIMs is substantiated by the dispute settlement practice of the WTO. The degree of leeway afforded to WTO member states in this context is illustrated by the India—Solar Cells case (DS456) [58]. The central issue of the dispute concerned India’s implementation of domestic content requirements, which stipulated that solar power developers were obligated to apply solar cells and modules of domestic origin for the purpose of qualifying for government electricity purchase agreements. The case under consideration specifically pertained to the matter of trade regulations that were applicable to critical components of renewable energy technology. Solar cells and modules constitute the essential generating equipment in photovoltaic systems, thus representing the technological foundation of solar power infrastructure. The panel found that domestic content requirements violated TRIMs (and also the GATT national treatment principle), because of their discriminatory nature, favoring domestic equipment over imported goods. The Appellate Body upheld the Panel’s finding that these domestic requirements violated TRIMs and GATT, as they constituted less favorable treatment of imported technology components. Moreover, this case also clearly demonstrates that Member States’ regulatory discretion is not only determined by the main obligations under WTO law but can also rely on exceptions, which seem to be applicable in technology-related matters as well. In this particular case, the exceptions concerned Article XX of the GATT, and India’s rationale for these requirements reflected technology development policy goals. It was argued that the domestic solar manufacturing sector lacked competitive capability against cheaper, internationally subsidized imports; therefore, the requirements were intended to protect nascent indigenous technology producers while achieving renewable energy targets. However, the Appellate Body rejected the defenses under GATT Article XX, found that solar cells and modules were not in “short supply”, and domestic content requirements did not directly enforce sustainable development obligations. This decision established that WTO members cannot condition procurement preferences on local content when purchasing equipment—even for renewable energy objectives—demonstrating how trade disciplines constrain technology-specific industrial support measures.

Consequently, WTO member states must consider these constraints when implementing any investment measure that restricts the movement of products, including finished automotive products and AV components, as previously mentioned. However, it should be noted that the significance of the TRIMs Agreement is reduced by the fact that it only covers trade in goods. Consequently, its impact on the relationship between investors and recipient states is indirect. Nevertheless, TRIMs is not the only WTO agreement that addresses foreign investment issues. One of the four types of services set out in the GATS agreement governing the services sector is explicitly applicable to foreign investment; therefore, GATS may also be relevant for investments in digital service sectors.

Finally, it should be noted that specific WTO agreements may also be relevant to the present topic. Due to its particular importance, the WTO Subsidies and Countervailing Measures (SCM) deserves special mention, as it is of paramount significance in terms of the scope of action available to member states in supporting the automotive industry, including high-technology sectors, without unduly distorting trade. It defines a “subsidy” as a financial contribution by a government or public body (grants, loans, equity, tax incentives, provision of goods/services, or purchase of goods) that confers a benefit and is “specific” to certain enterprises or industries. Specific subsidies are then classified as prohibited (e.g., export-contingent or local-content-contingent) or “actionable” if they cause adverse effects to other members, such as injury to a domestic industry or serious prejudice to competitors [59]. Also, the SCM Agreement is applied in a largely technology-neutral way. Its core concepts (financial contribution, benefit, specificity) are defined without reference to any particular sector or technology, so the same legal tests apply whether the subsidy concerns, e.g., steel, semiconductors, electric vehicles, or autonomous-driving software. The Appellate Body decision in EC and certain member States—Large Civil Aircraft (DS316) demonstrated how government support for technology development (R&D, infrastructure, financing) must comply with WTO rules. The decision put down that government support, loans, and R&D assistance for technology development constitute actionable subsidies under the SCM Agreement. Thus, government support for technology products is subject to WTO discipline even when provided through favorable financing or infrastructure support. However, this does not give Member States unlimited discretion. This is particularly true for subsidies directly linked to export transactions, as it was made clear already in the early practice of the WTO DSB. The Appellate Body in Brazil—Aircraft and Canada—Aircraft cases (DS46 and DS70) [60,61] established that providing export subsidies for technology products is strictly regulated. It was held that export financing programs and government-backed credit programs directed towards domestic aircraft industries constituted a form of export subsidies. Following the prohibition of direct export subsidies for goods, it was determined that both countries had contravened their obligations as stipulated within the legal framework of the WTO. The same strict approach is pertinent and applies generally to other technological products and depicts well the WTO limits on government support for the export of technology.

Consequently, the WTO law has a significant structural capacity to address trade in technologies vital for the automotive industry, particularly for the development of autonomous vehicles. In other words, WTO law, when interpreted in a technology-neutral way, is capable of regulating new and innovative products and services that did not even exist when the WTO was established in 1995. This legal infrastructure can create favorable conditions for global value chains in autonomous driving components (e.g., semiconductors, sensors, and connectivity systems) and provide a framework for related services (e.g., digital connectivity services, cloud-based diagnostics, and remote vehicle management). Furthermore, it establishes minimum intellectual property standards that are essential for protecting software, algorithms, and industrial designs embedded in autonomous systems, and it sets out strict rules on how governments can support and contribute to the development of the industry.

4. Conclusions

The aim of this analysis was to answer the key question of whether the current infrastructure of world trade law can provide adequate responses to technological challenges. While WTO law appears applicable when its original rules are interpreted dynamically in light of new technologies, the infrastructure as a whole is outdated in many respects. In particular, the conceptual framework and uncertainties in the definition of basic categories, such as goods and services, require review, despite the straightforward technology-neutral approach of the agreements. In practice, this means that WTO law maintains a separation between goods (GATT), services (GATS), and intellectual property (TRIPS), with each area governed by different rules and commitment structures. This framework struggles to accommodate fully integrated autonomous systems, in which goods, services, and IP are inseparable components. AVs are therefore complex products incorporating characteristics of physical goods (e.g., vehicle chassis, wheels, sensors, and computing hardware); services (e.g., remote diagnostics, cloud-based software updates, and real-time connectivity services); and intellectual property (e.g., embedded software code, machine learning algorithms trained on driving data, and algorithmic decision-making systems). Currently, WTO law handles these characteristics separately: some fall within the scope of GATT, GATS encompasses rules for service trade, and TRIPS lays down rules for IP protection. A more holistic approach is needed because the current separation creates gaps where the interactions between the goods, services, and IP dimensions are not explicitly addressed.

Moreover, risks also arise from the current legal framework relating to technical barriers, such as standards and regulations (TBT). Over the past two decades, the impasse in multilateral trade negotiations has prompted WTO member states to increasingly turn to regional cooperation and bilateralism. These approaches enable national technical regulations to be coordinated within much narrower geographical areas than the global market covered by the WTO. It remains to be seen what impact this ‘fragmentation’ of the global market will have on technological development, but it is clear that this process is taking place at a time when new, disruptive technologies are being introduced. The resulting uncertainty makes it difficult to develop technical regulations that guarantee an optimal regulatory environment in terms of safety, health, and other economic and societal concerns in fragmented markets. This is partly because we are still in the early stages of the ‘competition’ of standards. Only the broadest possible cooperation between states could ensure that technical regulations prioritize efficiency and environmental and social welfare over the partial strategic interests of individual states—or, in some cases, the narrower interests of specific industries or companies. Even if WTO rules, including TBT, were capable of accommodating such a ‘global standardisation process’, it is unlikely that all 166 member states would participate.

However, this fragmentation should not distract from the fact that results have been achieved in certain areas. As the above analysis showed, the amended WTO ITA of 2015 is particularly important as it covers products largely related to the production of self-driving vehicles. This agreement is therefore expected to reduce the cost of trading in essential self-driving vehicle technologies and products further, ultimately making the vehicles themselves cheaper. Nevertheless, given the technological complexity of self-driving vehicles, further refinements may be necessary. The areas covered by the GATS and their practical implications should be considered separately. Although a wide range of measures by WTO member states could, in theory, be covered by the GATS, its limitations and ‘mosaic’ nature substantially restrict its potential. As mentioned above, state measures—including certain investment-related rules—may interact with issues covered by the GATS. However, different liberalization requirements could cause problems, and different market access conditions could hinder the diffusion of new technologies. While the EU’s progressive commitment has been referenced as a model, its overall commitment currently seems rather unique. In order to reap the benefits of global trade, the commitments of WTO member states would either need to be unified or specific legislation would need to be adopted in GATS negotiations.

Discussions on e-commerce (digital commerce), which began decades ago and were reactivated in recent years, also address the technical and industrial basis for new technologies and self-driving vehicles. While these negotiations are currently taking place separately from the WTO’s basic sectoral rules, they are linked to the GATT, GATS, and TRIPS agreements in several areas (e.g., non-discrimination). In this context, efforts to ‘bilateralize’ may present challenges, so it would be preferable for WTO member states to reach a satisfactory agreement on the substantive issues at the WTO level.

While the WTO is currently facing a number of structural issues, once the most pressing problems have been resolved, a number of changes could be considered as part of a well-considered reform process to make the WTO’s response to new technologies more effective. Taking the above issues into account, the following amendments could be considered:

(a)

As can be seen above, WTO law is fragmented in that it independently regulates issues relating to products, services, and intellectual property rights. Rather than separating the different aspects of technological products, WTO law should address these products as integrated technological systems and apply coherent rules to them. This could be achieved by amending the original agreements or within the framework of a new plurilateral agreement. Incorporating ‘hybrid products’ based on new technologies, such as AVs, in this way may necessitate coordination with the ITA and the ongoing e-commerce negotiations.

(b)

WTO law references international standard-setting organizations (e.g., UNECE, IEEE, ITU-T) in the TBT agreement but lacks formal mechanisms to coordinate with them or guide their standard development toward trade-facilitating outcomes. The WTO TBT Committee is already able to monitor how members adopt or deviate from international standards, and the Committee formulated the fundamental principles of standardization in 2000, but these are not binding and serve only as “good practice” guidelines for member states. A clear shortcoming is that there is currently no direct coordination mechanism open to international organizations involved in standardization. The creation of such a mechanism, possibly under the auspices of the WTO TBT Committee, would allow for direct dialogue between the WTO and international standardization bodies, as well as mutual cooperation, so that trade-related aspects can be incorporated into the standard-setting process. Such active coordination could also ensure the consistency of standards developed by different bodies that are competing and overlapping with each other.

(c)

As part of the WTO reform process, consideration should be given to ensuring that its organizational system is able to address the policy and legal issues raised by disruptive technologies more effectively. A specific, dedicated working group could provide a suitable forum for discussing issues related to new technologies, AI, and AVs, as well as their impact on trade. This could be achieved by establishing a new body or by reforming and broadening the focus of the Working Group on Trade and Transfer of Technology. Moving from reactive to proactive governance, a specific WTO body would be able not only to monitor and reflect on potentially trade-distorting practices but could also develop best practices (e.g., for MRAs) and provide technical assistance to Member States as well.

(d)

Although the above analysis did not address the issues facing emerging economies profoundly, a number of aspects, particularly in relation to specific dispute settlement cases and the technological context of investments, justify the integration of this issue into the WTO law framework. Therefore, it would be worthwhile considering the creation of specific rules on differential treatment for developing countries relating to the commercial aspects of new technologies (e.g., local-content exemptions), which would take the special interests of these economies into account more effectively.