04:16 PM Kent Chen Sixue (SMU School of Law)

    ASEAN Law Conference 2017


    The ASEAN Law Conference, which took place from 7 to 8 December 2017 ,was organised by the Centre for Cross-Border Commercial Law in Asia of Singapore Management University (SMU) School of Law. The Conference convened by Associate Professor Pasha Hsieh of SMU and Professor Bryan Mercurio of the Chinese University of Hong Kong brought together distinguished academics, government officials and practitioners from around the Asia-Pacific region. Speakers addressed issues involving the impact of ASEAN law under the new ASEAN Economic Community Blueprint 2025 (the AEC Blueprint 2025) on cutting-edge areas such as banking integration, aviation services, e-commerce, investment disputes and consumer protection. This note provides an overview of the insights discussed at the conference.

    ASEAN Law in the Global Context

    The first day of the Conference began with a discussion of ASEAN Law in the context of global regionalism. Moderated by Mr Tan Tai Hiong, Assistant Director of the ASEAN Secretariat, many interesting points were raised with regards to the negotiations and the possible impact of the Regional Comprehensive Economic Partnership (RCEP), a proposed Free Trade Agreement (FTA) that includes ASEAN 10 countries and the 7 Asia-Pacific economies (Australia, China, Hong Kong, India, Japan, South Korea and New Zealand) with which the ASEAN member states currently have FTAs.

    Minh Hue Nguyen of the Asian Trade Centre pointed out that the ASEAN bloc faces significant barriers to the establishment of a framework to facilitate with free-trade in goods. These barriers include tariffs, non-tariff measures and the complexities involved in the negotiation surrounding the 4 types of goods categories. The four types of goods categories are: Inclusion List, Temporary Sensitive List, Sensitive List and General List. Each category requires different commitments from different nations and various logistic factors are in play.

    Associate Professor Heng Wang of the University of New South Wales opined that ASEAN member states can learn from the Australia-China FTA (ACFTA). The approach under the ACFTA is different from many of the FTAs concluded by China: the ACFTA adopted a more flexible and cooperation-based approach as evidenced in its specific rules. While it is pertinent to learn from China’s approach, Wang cautioned that the ACFTA may not represent a coherent approach to regional economic cooperation which is of significance to the RCEP. It is crucial for ASEAN member states to observe the interaction of ACFTA with other FTAs to derive further lessons from it.

    Against the background of ASEAN economic integration, the direction of the conference was geared towards the impact that RCEP and other ASEAN law developments may have on many service and technology sectors. In the ensuing discussions, issues facing many specific areas of laws were raised and debated.

    Intellectual Property and Information Technology Law

    Kicking off the discussion on Day 1 of the conference is a focused study on the impact of the development of ASEAN Law on the Intellectual Property (IP) and Information Technology (IT) laws. E-commerce has been on the rise worldwide recently and the AEC Blueprint 2025 has focused its attention on the development of consumer payment system and privacy protection mechanism. However, there are obstacles along the way towards developing a sustainable and functioning e-commerce system across the ASEAN region.

    Assistant Professor Eliza Mik of SMU pointed out that there is an issue with the enforceability of electronic contract across different states in ASEAN which hinges partly on the mutual recognition between States of digital and/or electronic signatures. Yet, achieving the mutual recognition of digital and/or electronic signatures across the ASEAN member States remains a significant challenge. Mik also pointed out that there is an uneven development of consumer protection law across different countries in ASEAN which is the result of an absence of a standard model or template of laws for countries to follow. This poses a critical barrier to formulating a uniform e-commerce framework.

    Further to the discussion of e-commerce, Assistant Professor Han-Wei Liu of Taiwan’s National Tsing Hua University touches on data localisation and its impact on digital trade. He is of the view that cross-border data flow across the ASEAN countries is currently subject to various restrictions, thus impeding the achievement of the goal of “enhanced connectivity” stated in the AEC Blueprint 2025. The most common reason cited for data localisation is security. Hence, the tough question to be asked is how to achieve a smooth flow of data across the borders while ensuring data protection. 

    On the issue of promoting trade in goods between the ASEAN countries, Visiting Professor Irene Calboli of SMU examined the subject of harmonisation of IP rules which is essential to trade in goods. For products to circulate after the first sale, the IP owners shall not be able to exert any form post-sale control or restraint. Currently, many countries in ASEAN do not have rules on IP exhaustion with regard to different forms of IP rights. It is important to have uniform IP exhaustion rules in order to promote cross-border trade in goods in ASEAN.

    Trade in Service

    On the discussion revolving trade in services, Yoshifumi Fukunaga (Principal Deputy Director, Research Institute of Economy, Trade and Industry, Japan) noted that there are currently 11 Mutual Recognition Agreements signed between ASEAN countries for professional services. However, the lack of uniformity in national regulations on the recognition of professional qualifications hinders the movement of people and the trade in services. Therefore, regulatory convergence is required to further encourage trade in these areas. The first step to achieving that is to identify the best practice regulations. Professor Bryan Mercurio is of the opinion that ASEAN has achieved some degree of success in the liberalisation of services, but more needs to be done. He proposed that ASEAN countries should set ambitious targets for service liberalisation. The commitments that they made should not be below the existing standards and practices.

    On the topic of legal services, Associate Professor Pasha Hsieh of SMU is of the view that national legislations have often curtailed the liberalisation of legal services and the critical steps that should be taken towards achieving liberalisation and integration of legal services among the ASEAN countries are the harmonisation of national legislations and progressive domestic measures.

    To end off the discussion on services, Assistant Professor Jae Won Lee of CUHK shared his insights on the liberalisation of aviation services in ASEAN. Currently, 56% of the global market share for low-cost carriers are in the region. Being cognizant of the potential in the area of aviation services, ASEAN countries have made progress in its liberalisation. However, the challenges remain in relation to the insufficient infrastructure within some ASEAN countries and the lack of shared vision towards strengthening the ASEAN Single Aviation Market.

    Commercial Disputes

    In terms of consumer protection, Associate Professor Jeannie Paterson of Melbourne Law School, presenting her co-authored paper with Professor Luke Nottage (University of Sydney Law School), noted that all ASEAN members States, except Cambodia, had enacted some form of consumer protection laws in their countries. However, substantive gaps in these legislations and enforcement problems persist. While AEC Blueprint 2025 has recognised the key role played by consumer protection in encouraging trade and market access, more needs to be done to address the loopholes in the law and the problems with enforcement. With the increase in cross-border transactions, transnational disputes are bound to rise.


    Associate Professor Yip Man of SMU explained the developments in dispute resolution mechanisms under the ASEAN Comprehensive Investment Agreement and countries such as Indonesia, Vietnam and Singapore. She stressed the need for ASEAN countries to recognise the global and regional trends in dispute resolution and adopt key international practices and norms in their effort to develop dispute resolution mechanisms that will encourage cross-border trade in ASEAN.

    Financial Integration

    The second day of the Conference started with the discussion of regulatory reforms of financial regulations in CLMV (Cambodia, Laos, Myanmar and Vietnam) with a particular focus on Myanmar. Professor Nimnual Piewthongngam of Khonkaen University, Thailand was of the view that there is a significant development gap between different countries in ASEAN as well as CLMV.  Vietnam has since developed into an attractive country for foreign investment while Myanmar is lagging behind the other countries in CLMV. Dr. Federico Lupo-Pasini of Queen’s University, Belfast analysed banking integration in ASEAN where he is of the view that it is too early to evaluate the regional financial integration in ASEAN in the future. However, he belived that such integration will not be similar to that in the EU as the regulators of the EU member States are always more in favour of integration as compared to their ASEAN counterparts.

    Investment Liberalisation

    The last topic of the Conference is investment liberalisation in ASEAN. Associate Professor Trinh Hai Yen of the Diplomatic Academy of Vietnam noted the fragmented approach to Investor-State Dispute Settlement in ASEAN’s investor treaties which is a result of parallel negotiations that took place between ASEAN member States and external countries. The potential for fragmentation will further increase with EU’s initiative of having an international commercial court taking over the function of traditional international arbitration in its treaties with Singapore and Vietnam.

    Associate Professor Sufian Jusoh of the National University of Malaysia ended the conference with a stimulating discussion on investment liberalisation in Laos and Myanmar. While both countries have taken steps to attract more foreign investments, much needs to be done to ensure that both countries stay on course for further liberalisation. Specifically, in relation to Myanmar, Associate Professor Sufian Jusoh recommended Myanmar to reduce the number of items on the negative list in Myanmar Investment Law to attract more investment. 


    The papers presented at the Conference will be published as a collection entitled “ASEAN Law in the New Regional Economic Order: Global Trends and Shifting Paradigms” by the Cambridge University Press.


    * The writer would like to thank SMU Centre for Cross-Border Commercial Law in Asia and Associate Professor Pasha Hsieh for putting together this intellectually stimulating conference as well as for giving me the opportunity to attend and cover the event.

    ** This blog entry may be cited as Chen Sixue, “ASEAN Law Conference 2017” (5 January 2018) (

    *** A PDF version of this entry may be downloaded here

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