Moore: The Struggle for Law in the Oceans: How an Isolationist Narrative Betrays America

John Norton Moore (Univ. of Virginia - Law) has published The Struggle for Law in the Oceans: How an Isolationist Narrative Betrays America (Oxford Univ. Press 2023). Here's the abstract:

During the 1970s and 1980s the United States led the world in negotiating one of the most important treaties in history, the United Nations Convention on the Law of the Sea (UNCLOS). Through these negotiations the United States secured the largest area of maritime jurisdiction in the world-an area larger than the continental United States itself-and protected navigational freedom, so critical for Naval mobility.

The United States was also recognized as having access to four deep seabed mine sites, each roughly the size of the State of Rhode Island, and each containing approximately a quarter trillion dollars in strategic minerals. Today UNCLOS is in force for 168 countries and the European Union. Isolationist arguments, however, have for a quarter-century prevented the Senate from voting on the Convention.

This book is about the potential damage to American national interests caused by this isolationist narrative. It discusses the robust reasons favoring the Convention, and offers a sharp critical examination of the arguments still being made against it. John Norton Moore posits that isolationist obstruction has cost the United States two deep seabed mine sites, "USA-2" and "USA-3," for a loss of a half trillion dollars in strategic minerals, and shows how a continuation of this narrative threatens the loss of "USA-1" and "USA-4" for another half trillion dollars-all while China has acquired four deep seabed sites and the Russian Federation three. In this ground-breaking, and vigorously argued new work, Moore asserts that it is time to accede to the Convention, as has been urged for decades by Presidents from both sides of the political divide.

Hsu: Dispute Settlement for ASEAN Businesses under the Belt and Road Initiative: New Possibilities and Directions

Locknie Hsu (Singapore Management Univ. - Law) has published Dispute Settlement for ASEAN Businesses under the Belt and Road Initiative: New Possibilities and Directions (Edward Elgar Publishing 2022). Here's the abstract:

This forward-looking book examines dispute resolution issues in the context of Belt and Road Initiative dealings between parties in ASEAN member States, China and other trade partners. It discusses a range of commercial dispute issues and economic agreements including free trade agreements and investment agreements, both bilateral and regional.

Locknie Hsu presents research on dispute settlement options and emerging issues for ASEAN businesses relating to projects and transactions undertaken in relation to the Belt and Road Initiative. She translates these options and issues into opportunities in economic treaty negotiations, utilization of national and regional dispute settlement institutions and better handling of emerging issues (such as environment-related claims and technology applications in dispute resolution) and in legal capacity-building in ASEAN. The book explores findings from academic research, empirical information, selected Case Studies (on environmental and other claims in ASEAN and beyond) and salient legal and technological developments, to provide insights and lessons that make this original book a rich and useful legal and research resource.

Cho & Kurtz: Investing the ASEAN Way: Theories and Practices of Economic Integration in Southeast Asia

Sungjoon Cho (Chicago-Kent College of Law) & Jürgen Kurtz (European Univ. Institute) have published Investing the ASEAN Way: Theories and Practices of Economic Integration in Southeast Asia (Cambridge Univ. Press 2022). Here's the abstract:

In recent decades, South East Asia has become one of the world's most popular destinations for foreign investment. The member states of the Association of Southeast Asian Nations (ASEAN) have employed varying modalities to pursue first security and then economic cooperation. This book explores regional law and governance in ASEAN through the lens of its regulation of foreign investment. It adopts a new framework to identify the unique ontological autonomy of the ASEAN Investment Regime beyond a simple aggregation of its individual member states. It deploys a sociology-led approach (especially constructivism) and emphasizes ideational factors (such as culture and norms) that guide state actions from within. The book explores the manner in which ASEAN's history and culture have fundamentally shaped its foreign investment policies, leading to outcomes that often depart fundamentally from the external structure and script of Global Investment Law.

Mahaseth & Subramaniam: Binding or Non-Binding: Analysing the Nature of the Asean Agreements

Harsh Mahaseth (Jindal Global Law School) & Karthik Subramaniam (NALSAR Univ. of Law) have published Binding or Non-Binding: Analysing the Nature of the Asean Agreements (International and Comparative Law Review, Vol. 21, no. 1, June 2021). Here's the abstract:

ASEAN has gradually attempted to assert itself as a diplomatic force to reckon with. However, over the recent past, it’s ability to deal with regional issues and situations has come under scrutiny. This paper argues that the reason behind such lack of clear decision making arises from the large presence of Soft Law nomenclature in ASEAN agreements, resulting in the lack of any Hard Law obligations on these nations. The paper attempts to highlight the lack of clarity in the nomenclature used in ASEAN agreements, the problems that arise from the same, and the possible reasoning behind the usage of such nomenclature. In conclusion, the paper provides a few solutions and recommendations that could be adopted by the ASEAN community of nations to estab-lish themselves as an economic community.

Webinar: The Roadmap to the ASEAN-EU FTA in the Post-Pandemic Era

On December 3-4, 2020, the Singapore Management University School of Law will hold a webinar on "The Roadmap to the ASEAN-EU FTA in the Post-Pandemic Era." Program and registration information are here.

Neo, Sauvé, & Streho: Services Trade in ASEAN: The Road Taken and the Journey Ahead

Dora Neo (National Univ. of Singapore - Law), Pierre Sauvé (World Bank Group), & Imola Streho (Sciences Po - Law) have published Services Trade in ASEAN: The Road Taken and the Journey Ahead (Cambridge Univ. Press 2019). Here's the abstract:

The member states of the Association of Southeast Asian Nations (ASEAN) set themselves the ambitious aim of establishing a region-wide economic community by 2015, and to deepen it in the context of the ASEAN Economic Community (AEC) Blueprint 2025. To achieve these goals, service sector reforms will occupy a central place in ASEAN's policy pantheon. This can be attributed to both ASEAN's integration process and its deepening ties within a dense layer of external economic partners. This book takes stock of the experience of ASEAN member states in pursuing trade and investment liberalization in services. It identifies key challenges that the regional grouping can be expected to encounter in realizing its AEC Blueprint 2025 aims. Using a law and economics lens, the book assesses where ASEAN is and is headed in services trade, situating it alongside efforts at crafting a European single market for services.

Hsieh: Rethinking Non-Recognition: Taiwan’s New Pivot to ASEAN and the One-China Policy

Pasha L. Hsieh (Singapore Management Univ. - Law) has posted Rethinking Non-Recognition: Taiwan’s New Pivot to ASEAN and the One-China Policy (Cambridge Review of International Affairs, forthcoming). Here's the abstract:

The article examines the evolution of Taiwan’s engagement in Southeast Asia since the 1990s as a unique case study in international law and international relations (IR). Under the one-China policy, the evolution of bilateral relations with Taiwan highlights the theoretical concept of recognition premised on identity and status in interstate affairs. The article argues that the states of the Association of Southeast Asian Nations (ASEAN) have established diverse forms of recognition of Taiwan in line with a policy of non-recognition. While such recognition has not amounted to recognition of statehood in international law, it demonstrates the IR concept of recognition as a gradual process in state practice. To substantiate the contention, the article examines the diplomatic privileges and immunities that ASEAN countries have accorded to Taiwan. The conclusion of bilateral trade and investment agreements has also galvanized various modes of recognizing Taiwan’s treaty-making capacity and the legitimacy of official cooperation. Hence, the findings not only enrich the study of IR, but also contribute to a broader understanding of the role of China and contemporary Asia-Pacific politics.

Duxbury & Tan: Can ASEAN Take Human Rights Seriously?

Alison Duxbury (Univ. of Melbourne - Law) & Tan Hsien-Li (National Univ. of Singapore - Law) have published Can ASEAN Take Human Rights Seriously? (Cambridge Univ. Press 2019). Here's the abstract:

The adoption of the ASEAN Charter in 2007 represented a watershed moment in the organisation's history - for the first time the member states explicitly included principles of human rights and democracy in a binding regional agreement. Since then, developments in the region have included the creation of the ASEAN Intergovernmental Commission on Human Rights in 2009 and the adoption of the ASEAN Human Rights Declaration in 2012. Despite these advances, many commentators ask whether ASEAN can take human rights seriously. The authors explore this question by comprehensively examining the new ASEAN human rights mechanisms in the context of existing national and international human rights institutions. This book places these regional mechanisms and commitments to human rights within the framework of the political and legal development of ASEAN and its member states and considers the way in which ASEAN could strengthen its new institutions to better promote and protect human rights.

Nasu, McLaughlin, Rothwell, & Tan: The Legal Authority of ASEAN as a Security Institution

Hitoshi Nasu (Univ. of Exeter), Rob McLaughlin (Univ. of New South Wales), Donald R. Rothwell (Australian National Univ.), & See Seng Tan (Nanyang Technological Univ.) have published The Legal Authority of ASEAN as a Security Institution (Cambridge Univ. Press 2019). Here's the abstract:

The Association of Southeast Asian Nations (ASEAN) has achieved deeper regional market integration to lay a socio-economic foundation for the development of a regional community, yet inter-state trust is by no means assured as Southeast Asian nations remain steadfast in maintaining their political regime stability against external interference. However, through its institutional practices, ASEAN has emerged as a distinct model of security institution, while the region's contemporary security landscape has diversified with various non-traditional security issues. By looking beyond the veneer of diplomacy and prevailing political circumstances, this book examines the legal nature and form of ASEAN's authority to address diverse regional security issues. It provides a fresh perspective on ASEAN's role as a security institution. With an interdisciplinary analysis, this book reveals the normative role that ASEAN plays in facilitating the processes of norm development, localisation and internalisation as it deals with contemporary security challenges confronting Southeast Asia.

Hsieh & Mercurio: ASEAN Law in the New Regional Economic Order: Global Trends and Shifting Paradigms

Pasha L. Hsieh (Singapore Management Univ. - Law) & Bryan Mercurio (Chinese Univ. of Hong Kong - Law) have published ASEAN Law in the New Regional Economic Order: Global Trends and Shifting Paradigms (Cambridge Univ. Press 2019). The table of contents is here. Here's the abstract:

The fast-growing last decade of strong economic growth of the Association of Southeast Asian Nations (ASEAN) has played a critical role in Asia-Pacific regionalism and global trade. This book explores the concept of ASEAN law under the normative framework of the new regional economic order. It examines the roadmap of the new ASEAN Economic Community Blueprint 2025 by evaluating the impact of ASEAN trade agreements on domestic legislation on professional services, financial integration, investment disputes and digital trade. More importantly, it sheds light on the legal implications of ASEAN's agreements with China and India and the potential developments of mega-regional trade agreements such as the CPTPP and the RCEP. Hence, the legal analysis and case studies in the book offer a fresh view of Asia-Pacific integration and bridge the gap between academia and practice.

Gao: Dispute Settlement Provisions in Asean's External Economic Agreements with China, Japan and Korea

Henry S. Gao (Singapore Management Univ. - Law) has posted Dispute Settlement Provisions in Asean's External Economic Agreements with China, Japan and Korea (in ASEAN Law in the New Regional Economic Order, Pasha L Hsieh & Bryan Mercurio eds., forthcoming). Here's the abstract:

This paper conducts a detailed critical analysis of the dispute settlement mechanisms in ASEAN’s external economic agreements with China, Japan and Korea by reviewing the main procedural rules of these mechanisms. The paper also discusses the difference among these agreements, and compares them with the World Trade Organization (WTO) dispute settlement mechanisms. The paper concludes with thoughts on how these dispute settlement mechanisms might evolve in the future, especially in view of the ongoing negotiations for the Regional Comprehensive Economic Partnership Agreement (RCEP).

Hsieh: Against Populist Isolationism: New Asian Regionalism and Global South Powers in International Economic Law

Pasha L. Hsieh (Singapore Management Univ. - Law) has posted Against Populist Isolationism: New Asian Regionalism and Global South Powers in International Economic Law (Cornell International Law Journal, forthcoming). Here's the abstract:

This article provides the most up-to-date examination of the Regional Comprehensive Economic Partnership (RCEP), which is poised to become the world’s largest free trade agreement (FTA). It argues that the 16-country mega-FTA will galvanize the paradigm shift in Asian regionalism and build a normative foundation for the Global South in international economic law. Based on intertwined theoretical and substantive claims, this article opens an inquiry into the assertive legalism of developing nations in the new regional economic order. It further manifests the pivotal force of emerging economies against populist isolationism in the Trump era that undermines the neoliberal foundation of global trade liberalization.

By analyzing the converging policies of the Association of Southeast Asian Nations (ASEAN), China and India, the article first demonstrates the status of the RCEP in Asian powers’ contemporary FTA practice. In light of the ASEAN Economic Community, the new 11-member Trans-Pacific Partnership and EU FTAs with Singapore and Vietnam, caution should be given to the utilization of tariff preferences, services liberalization and investor-state dispute settlement. Finally, the article assesses the RCEP’s systemic impact on the legal fragmentation due to jurisdictional conflicts under trade and investment agreements. The consolidation of divergent trade rules and the pro-development operative mechanism will fortify the RCEP as a pathway to the Free Trade Area of the Asia-Pacific and reinvigorate the multilateral trading system.

Conference: ASEAN Law in the New Regional Economic Order

On December 7-8, 2017, Singapore Management University School of Law will hold a conference on "ASEAN Law in the New Regional Economic Order: Global Trends and Shifting Paradigms." The program is here. Here's the idea:

The fast-growing Association of Southeast Asian Nations (ASEAN) has been attracting the attention of governments and business. ASEAN trade agreements are also critical to the prospect of the Regional Comprehensive Economic Partnership and the Trans-Pacific Partnership. The legalization of the ASEAN Economic Community (AEC) and ASEAN’s external agreements with major Asia-Pacific economic powers (China, Japan, Korea, India, Australia and New Zealand) provide a valuable case study of the New Regional Economic Order.

A comprehensive legal analysis of the concept of ASEAN law in national, regional and global contexts is urgent and necessary. The objective of the ASEAN Law Conference is to produce a detailed publication on ASEAN law under the new AEC Blueprint 2025 and its impact on conventional theory of regional integration. In particular, the conference focuses on the impact of regional agreements on the business and commercial aspect of laws. From a comparative law perspective, case studies on the laws of Indonesia, Myanmar and Vietnam will add to the existing literature. Moreover, the conference will examine the implications of mega-regionals and EU agreements for ASEAN law. Hence, this conference will offer a fresh view of the legal perspective of Asia-Pacific regionalism and bridge the gap between academia and practice.

Deinla: The Development of the Rule of Law in ASEAN

Imelda Deinla (Australian National Univ. - School of Regulation and Global Governance) has published The Development of the Rule of Law in ASEAN: The State and Regional Integration (Cambridge Univ. Press 2017). Here's the abstract:

An interdisciplinary work that comparatively studies rule of law practices and the relationship between the rule of law and regional integration, a topic largely explored in European integration. By looking at the function of the rule of law in ASEAN rather than what it 'means' measured on normative conception, the book situates the rule of law in broader institutional and political processes in the member states and in regional relations to show the motivations of member states in adopting a peculiar type of regional architecture. It asks whether forging the rule of law in the region can help build it internally for member states. The book revisits discourses on the 'spill-over' of economic integration, the impact of globalization in reshaping the state and generating new tools of the rule of law. It makes a comprehensive comparison - the European Union, Africa Union and MERCOSUR - showing the uneven pathways to rule of law in various contexts.

Cho & Kurtz: Legalizing the ASEAN Way: Adapting and Reimagining the ASEAN Investment Regime

Sungjoon Cho (Chicago Kent College of Law) & Jürgen Kurtz (Univ. of Melbourne - Law) have posted Legalizing the ASEAN Way: Adapting and Reimagining the ASEAN Investment Regime (American Journal of Comparative Law, forthcoming). Here's the abstract:

This article explores the legalization characteristics of the investment rules of the Association of South-East Asian Nations (ASEAN). Measured against orthodox and external benchmarks, ASEAN’s investment regime is relatively limited. We make the following two arguments in this article. First, we argue that while ASEAN members have subscribed to global norms in their own collective investment rules, they have done so in an intentionally selective manner shaped fundamentally by key contextual dynamics. These encompass a complex combination of ASEAN members’ unique deliberation modality (the “ASEAN Way”) informed by their shared historical experience coupled with negative social learning. Using those insights, we suggest that is both possible and desirable to understand the ASEAN approach as an independent and legitimate form of legalization, rather than as a failed or flawed model. Second and relatedly, we argue that the idiographic nature of legalization in ASEAN compels us to rethink the conventional universal (nomothetic) approach to legalization and embrace a more nuanced conception.

Chaisse & Jusoh: The ASEAN Comprehensive Investment Agreement: The Regionalisation of Laws and Policy on Foreign Investment

Julien Chaisse (Chinese Univ. of Hong Kong - Law) & Sufian Jusoh (Universiti Kebangsaan - Institute of Malaysian and International Studies) have published The ASEAN Comprehensive Investment Agreement: The Regionalisation of Laws and Policy on Foreign Investment (Edward Elgar Publishing 2016). Here's the abstract:

The international law of foreign investment is one of the fastest growing areas of international economic law and policy which increasingly rely on large membership investment treaties such as the ASEAN Comprehensive Investment Agreement (ACIA). This book comprehensively examines the role of this specific international treaty on investment and situates it in the wider global trend towards the regionalisation of laws and policy on foreign investment.

Considering the state of the ASEAN Economic Community in 2015 and its transformation until 2025, Julien Chaisse and Sufian Jusoh illustrate the pivotal role ACIA has to play in future international investment law negotiations and the benefits to ASEAN and third country investors and their investments. Collective commitment to a common standard contributes to depoliticise any potential conflict between individual investors and host states, making the agreement particularly crucial to discussions involving ASEAN Member States and between ASEAN and Dialogue Partners as well as to investment decisions including investment liberalisation and investment facilitation.

Venzke & Thio: The Internal Effects of ASEAN External Relations

Ingo Venzke (Universiteit van Amsterdam - Law) & Li-ann Thio (National Univ. of Singapore - Law) have published The Internal Effects of ASEAN External Relations (Cambridge Univ. Press 2016). Here's the abstract:

Starting with a typology of ASEAN external agreements, the authors go on to provide an original reading of plurilateral agreements as 'joint' agreements. The book then offers both a clarification of the effects - direct or indirect - of external agreements within the legal orders of ASEAN Member States, and an explanation of the effects of external agreements within the legal regime of ASEAN. The authors conclude with a discussion of the role of ASEAN centrality and the role of the secretariat in shaping it.

Cho & Kurtz: The Limits of Isomorphism: Global Investment Law and the ASEAN Investment Regime

Sungjoon Cho (Chicago-Kent College of Law) & Jürgen Kurtz (Univ. of Melbourne - Law) have posted The Limits of Isomorphism: Global Investment Law and the ASEAN Investment Regime (Chicago Journal of International Law, forthcoming). Here's the abstract:

This article probes the unique ontogenetic path of ASEAN’s regulation of foreign investment by juxtaposing global investment law and the ASEAN context. While the former delivers a powerful heuristic on isomorphism that ASEAN exhibits in its strong reflection of global investment norms, the latter sheds critical light on ideological and analytical blind spots by exploring distinct heterogeneities in ASEAN’s investment regulation. Those heterogeneities are not simply outliers but reflect important historical and cultural values inherent to ASEAN and its members. The insights uncovered in this article invite scholars and policymakers to define a new form of global investment law that is more inclusive and flexible than the strict and conventional paradigm.

Cho & Kurtz: International Cooperation and Organizational Identities: The Evolution of the ASEAN Investment Regime

Sungjoon Cho (Chicago-Kent College of Law) & Jürgen Kurtz (Univ. of Melbourne - Law) have posted International Cooperation and Organizational Identities: The Evolution of the ASEAN Investment Regime (Northwestern Journal of International Law & Business, forthcoming). Here's the abstract:

This article first conceptualizes the ASEAN Investment Regime (AIR) as an Interstate Cooperative Regime (ICR), defined as a stable interstate cooperative nexus on a particular regulative subject, comprising the regulation of foreign investment in this particular case. It then seeks to explain the evolution of AIR in terms of its identity formation. In doing so, this article employs three ideal types of cultural logic - Hobbesian, Lockean and Kantian - across each stage of AIR’s evolution, largely overlapping with the three main IR theories of neorealism, neoliberal institutionalism and constructivism, respectively. Using those models, we find a clear evolutionary pathway with the AIR following this sequential trajectory as it has transitioned towards a closer, regional investment community. This article nonetheless concludes that AIR’s organizational development has not always been linear and that one can detect sovereigntist regressionism in certain areas.

Beckman, Bernard, Phan, Tan, & Yusran: Promoting Compliance: The Role of Dispute Settlement and Monitoring Mechanisms in ASEAN Instruments

Robert Beckman (National Univ. of Singapore) Leonardo Bernard (National Univ. of Singapore) Hao Duy Phan (National Univ. of Singapore) Hsien-Li Tan (National Univ. of Singapore), & Ranyta Yusran (National Univ. of Singapore) have published Promoting Compliance: The Role of Dispute Settlement and Monitoring Mechanisms in ASEAN Instruments (Cambridge Univ. Press 2016). Here's the abstract:

The reputation and achievement of the ASEAN Community hinges on compliance. This seminal book discusses whether ASEAN's faith in dispute settlement and monitoring mechanisms as a means to better compliance is justified and delves into the extent to which they can facilitate ASEAN Community building. It provides the first comprehensive and systematic analysis of ASEAN's compliance with its instruments, and enables readers to see ASEAN as an organisation increasingly based on law and institutions. Readers will also learn how ASEAN balances a thin line between law and institutions on the one hand and diplomacy and realism on the other. Scholars of adjudicatory mechanisms will find this book a fascinating addition to the literature available, and it will serve as a 'go-to' reference for ASEAN state agencies. The book will also interest academics and practitioners working on comparative and cross-disciplinary studies of dispute settlement, monitoring mechanisms, compliance, and international and regional organisations.