INTEGRATION THROUGH LAW The Role of Law and the Rule of Law in ASEAN Integration General Editors: J. H. H. Weiler, Tan Hsien-Li and Michael Ewing-Chow

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1 INTEGRATION THROUGH LAW The Role of Law and the Rule of Law in ASEAN Integration General Editors: J. H. H. Weiler, Tan Hsien-Li and Michael Ewing-Chow FROM TREATY-MAKING TO TREATY-BREAKING Models for ASEAN External Trade Agreements PIETER JAN KUIJPER, JAMES H. MATHIS AND NATALIE Y. MORRIS-SHARMA R# CAMBRIDGE UNIVERSITY PRESS

2 General editors'preface pagexi List ofabbreviations xvii 1. Introduction Why this study? Background and context The two objectives of the study Summary of the external relations powers of ASEAN Observed and projected trends in ASEAN external relations powers Substantive content of ASEAN agreements Developing different models for ASEAN international agreements Rules on dispute settlement in agreements between ASEAN and third states Conclusions to be drawn from the study Substantive components of an ASEAN trade agreement from an external perspective Introduction A methodology for treating soft law in PTAs The subject areas and agreements identified for examination Introduction Subject areas considered Trade agreements chosen for analysis Regulatory subject areas in selected trade agreements Introduction General regulatory Cooperation provisions 39 vii

3 2.4.3 Intellectual property (IP rights) Competition law and policy Public procurement Services and Investment Product and food safety Standards (TBT- and SPS-type measures) Conclusion: regulatory subject areas Customs procedures and trade defence Instruments Anti-dumping provisions Safeguards (emergency measures) Conclusion: trade measures Chapter conclusion Moving forward: different institutional models for ASEAN's external trade agreements Introduction ASEAN member State agreements: ASEAN member states as parties without ASEAN Plurilateral ASEAN member State agreements: every party owes and is owed obligations Combined ASEAN member State agreements: rights and obligations between member states and dialogue partners Common ASEAN member State agreements: an exercise of collective competence by member states Demi-common ASEAN member State agreements Enabling the enforcement of ASEAN's role in ASEAN member State agreements Alternative approaches to the ASEAN minus X formula ASEAN alone agreements: ASEAN as party without its member states Parties to the agreement ASEAN's role Entry into force Who negotiates 125 viii

4 3.4 Mixed ASEAN agreements: ASEAN member states as parties together with ASEAN The concept of mixed agreements Plurilateral mixed ASEAN agreements: every party owes and is owed obligations Combined mixed ASEAN agreements: rights and obligations between ASEAN and its member states, of the one part, and dialogue partners, of the other part Common mixed ASEAN agreements: an exercise ofcollective competence by ASEAN and its member states Demi-common mixed ASEAN agreements Chapter conclusion The rules on dispute settlement in agreements between ASEAN member states and third states: a critical inventory Introduction Preliminary issues Who can be a party to a dispute settlement procedure? Which (parts of) agreements are covered? Causes of action Who or which entities can trigger State responsibility? Relation with other agreements and other dispute settlement organs Steps leading up to the arbitral procedures Liaison office Consultations and alternative dispute settlement The arbitral procedure itself Establishment and composition of panels/requirements for panel members Position of third parties Functions and proceedings of arbitral tribunals Interim and final reports Implementation and compliance Implementation of the final report Monitoring 187 ix

5 4.6 Conclusion From treaty-making to treaty-breaking Introduction Substantive regulatory and trade provisions Obligatory provisions for regulatory and trade subjects Cooperative Instruments for regulatory and trade subjects The dispute settlement provisions Introduction The three suggested solutions and the consequences of their application Who should be the parties to ASEAN's international trade agreements? 212 Executive summary 216 Appendices 224 Bibliography 22g Index 234 X