Untitled Page

Author	Ms Yining YANG
Organisation/Institution	Peking University Law School
Country	CHINA
Panel	International Regulation of Trade
Title	Pre-Consultation Clauses and the Fragmentation of Asian Regionalism: The Treaty-Making Autonomy Dilemma in Digital Trade Agreements
Abstract	In contemporary digital trade governance—particularly within Indo-Pacific–centered treaty networks—pre-consultation clauses have emerged as a distinctive and increasingly consequential legal device. While formally framed as procedural obligations, this article argues that such clauses have evolved into substantive constraints on treaty-making autonomy, operating with particular force against Asian states and, most prominently, ASEAN members. The digital domain amplifies this effect: rather than targeting conventional tariff policy, these clauses intervene at the core of digital sovereignty, shaping states’ choices in data governance models, artificial intelligence (AI) regulatory paradigms, and the standards governing critical digital infrastructure. Their regulatory force derives not from explicit prohibitions but from subtle legal engineering—most notably the deliberate indeterminacy of triggers such as “serious injury to essential interests,” the resulting chilling effect on negotiations with third parties, and the implicit threat of digital isolation. These dynamics generate a profound conflict of obligations for Asian states, whose commitments under bilateral Digital Trade Agreements increasingly collide with collective undertakings embedded in regional architectures such as RCEP and ASEAN centrality. Conceptually, pre-consultation clauses function as tools of soft control, rendering operational a broader geopolitical strategy that seeks to fragment Asia’s networked regionalism and entrench a more exclusive hub-and-spoke order in the digital economy. The article concludes by examining the narrow legal space still available to affected states—including interpretive strategies, the invocation of multilateral obligations, and regional collective action—while exposing a significant lacuna in contemporary public international law: the Vienna Convention on the Law of Treaties (VCLT) lacks the doctrinal resources to discipline forms of procedural coercion that fall short of overt force but nonetheless exert structural pressure on states’ regulatory autonomy. This reveals a deeper limitation of the VCLT framework when confronted with the emergent modalities of governance in the digital age.
Biography	Yining Yang is a Ph.D. candidate in International Economic Law at Peking University whose research examines the evolving architecture of global economic governance through the lenses of legal design, institutional adaptation, and the political economy of international trade regulation. Her work focuses on how compliance regimes, digital trade disciplines, and preventive dispute resolution mechanisms reshape state–market relations and recalibrate the distribution of regulatory authority in cross-border transactions. Drawing on training at the University of Montreal, Georgetown University, and The Hague Academy of International Law, she develops an interdisciplinary approach that integrates doctrinal analysis with empirical and practice-oriented inquiry. Yining currently serves as a project consultant to China’s first IMI-certified mediation training program, where she designs and implements an action-research framework assessing the transnational applicability of negotiation architecture and deal-design theories. Her research further considers how WTO reform debates—particularly those concerning the paralysis of the Appellate Body, the constraints of the consensus rule, and the governance of data flows—reflect deeper tensions between sovereignty, security, and developmental objectives in the contemporary trading system. She has published and presented on WTO adjudication, digital trade exceptions, and regional economic integration, receiving several academic awards for her contributions. In her broader scholarly agenda, Yining seeks to illuminate how technical legal instruments operate as vehicles of power, normalization, and adaptation within the global economy, and how alternative institutional designs might better mediate inequality and structural risk.