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    01:47 PM Victoria Liu Xin Er (Singapore Management University)

    ASEAN Law Conference 2020

        

    The ASEAN Law Conference on “The Roadmap to the ASEAN-EU FTA in the Post-Pandemic Era”, which took place from 3 to 4 December 2020, was organised by the Centre for Cross-Border Commercial Law in Asia of Singapore Management University (SMU) School of Law. The conference convened by Assoc. Prof. Pasha Hsieh of SMU and Assist. Prof. Dorcas Quek Anderson brought together distinguished academics, government officials and practitioners from around the world.

    In light of the COVID-19 pandemic, this conference had to be conducted online. Nevertheless, the discussions generated were just as, if not even more insightful in contributing to the understanding of Asian and European perspectives on cutting-edge issues including innovative rules of origin, e-commerce, sustainable development, and investor-state arbitration and mediation

    Challenges to ASEAN Countries: Indonesia, Singapore and Vietnam

    The first day of the conference began with opening remarks made by Prof. Goh Yihan (Dean of SMU School of Law), H.E. Igor Driesmans (Ambassador of the EU to ASEAN) and Mary Elizabeth Chelliah (Principal Trade Specialist, Singapore Ministry of Trade and Industry). The speakers examined ASEAN-EU relations in recent years and considered the potential impact of the COVID-19 pandemic. Finally, the speakers offered their analysis of the likely ASEAN-EU relations in the future.

    The conference continued with a discussion on challenges to ASEAN Countries, particularly Indonesia, Singapore and Vietnam. Moderated by Dorcas Quek, the discussion raised many interesting points regarding the trade agreements signed between the EU with Singapore and Vietnam respectively, as well as the ongoing negotiations for a trade agreement between the EU and Indonesia.

    Michelle Engel Limenta of Indonesia’s Universitas Pelita Harapan pointed out that the types and enforceability of trade and sustainable development (TSD) provisions vary across different trade agreements. Comparing the TSD chapters in the EU-Singapore Free Trade Agreement (FTA) with the EU-Vietnam FTA, she posited that the types of TSD provisions in the upcoming Comprehensive Economic Partnership Agreement (CEPA) between the EU and Indonesia will more closely resemble that of the EU-Vietnam FTA than the EU-Singapore FTA. She opined that the environmental sustainability criteria and standards should be worded and implemented in a way that does not create trade barriers and remains consistent with WTO law, thus paving the way for the inclusion of similar commitments in an EU-ASEAN FTA.

    Pasha Hsieh noted that the EU is adopting a building-block approach to reach an EU-ASEAN FTA. There are three types of interregionalism, namely: pure interregionalism, transregionalism and hybrid and quasi-interregionalism. These three types of interregionalism are intertwined and the EU’s building block approach means that quasi-interregionalism will provide a foundation for pure interregionalism. Prof. Hsieh also conducted a comprehensive comparison of the differences between the EU-Singapore and EU-Vietnam FTAs, Investment Protection Agreements (IPAs) and Partnership and Cooperation Agreements (PCAs). For instance, one crucial difference would be regarding the rules of origin where ASEAN cumulation under the EU-Singapore FTA is more extensive, and where the EU-Vietnam FTA is more liberal than the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) as it allows for the importation of fabrics from Korea.

    Finally, Trinh Hai Yen of the Diplomatic Academy of Vietnam and Nguyen Thi Nhung of Vietnam’s Ministry of Justice rounded up the discussion for the first session by examining Vietnam’s sustainable development commitments in relation to the CPTPP and the EU-Vietnam FTA. They observed that Vietnam has a national interest in sustainable development as seen in its socio-economic development strategy, constitution and domestic laws. As the EU also focuses heavily on sustainable development, the EU-Vietnam FTA demonstrates a common meeting point between the EU and Vietnam on sustainable development issues.

    Digital Trade and E-Commerce

    Kicking off the second session on day 1 of the conference was Mira Burri of the University of Lucerne. Burri pointed out that there has been a rise of digital protectionism and the surge for data sovereignty has led to new digital trade barriers. There are also more rules on digital trade and on data, with FTAs serving as a digital trade rule-making venue. Burri noted the trend of an emergence of a specific trade regime tailored to digital products and services. She also opined that the landscape of rules on digital trade is not so much about market access but more about interfacing domestic regimes to provide interoperability and certainty.

    Machiko Kanetake of Utrecht University touched on data protection in EU-Japan relations. An analysis of the gaps on data protection between Japan and EU was performed by examining the 2017 Japan Supreme Court case on the right to be forgotten with the EU Google-Spain case in 2014. Kanetake concluded that while the concept of equivalence in data protection is probably flexible enough to accommodate differences in data protection, it may be difficult for the European Commission to acknowledge that data protection as a fundamental right may be compromised to accommodate some other interests

    Kang Sung Jin focused on the Digital Economic Partnership Agreement (DEPA) and whether the framework can serve as a future framework for other countries. He observed that the DEPA can function as a standalone agreement and a framework to provide for new rule-making opportunities, or can be used as MOUs for further cooperation like in the Australia-Singapore Digital Economy Agreement. Kang opined that the UK could play an interesting role to accede to the DEPA first, before the EU may sign the DEPA or DEPA-like agreement with ASEAN. The DEPA, in conjunction with related MOUs, sets an interesting benchmark for future digital trade chapters of future FTAs.

    Dispute Settlement and Regulatory Cooperation

    The second day of the Conference started with an analysis of the dispute settlement mechanisms within the EU-Singapore and EU-Vietnam IPAs. Dorcas Quek noted that there was an increasing appetite for mediation. Using the lens of behavioural dispute design, Prof. Quek analysed the EU-Singapore and EU-Vietnam IPAs, before sharing her insights on how the recent IPAs can be improved and refined. Noting the possibility of cognitive biases within the investor-state dispute settlement (ISDS) system, dispute settlement mechanisms should ideally deal with these biases.

    Ching-Fu Lin of National Tsing Hua University shared his insights on sanitary and phytosanitary (SPS) cooperation and how it can be reimagined in the region-to-region context. Assoc. Prof. Lin discussed the issues in trade negotiations between the EU and ASEAN and the tension between trade liberalisation and public health protection. SMEs in the ASEAN region can influence the ongoing negotiations. For instance, as SMEs have been facing difficulties in implementing SPS measures and dealing with SPS standards in importing countries, the EU-Vietnam FTA contains a note to stick to international standards which are agreed to, and less stringent.

    Markus Wagner of the University of Wollongong concluded the conference with a discussion on the evolving landscape of international governance models. He noted a move towards greater regional integration in several aspects: subject matter coverage, regulatory coherence, institutional arrangements for regulatory cooperation, standards and dispute settlement. While the degree of integration is dependent on the negotiating parties, Assoc. Prof. Markus Wagner also analysed the role of China in several agreements.

    Conclusion

    The selected papers presented at the conference will be published in the Journal of World Investment and Trade. The suggestions raised by the presenters will be useful for the EU and ASEAN to construct a roadmap to the region-to-region FTA.

    The organisers would like to express their heartfelt gratitude to H.E. Igor Driesmans (Ambassador of the EU to ASEAN), Mary Elizabeth Chelliah (Principal Trade Specialist, MTI), fellow colleagues and the presenters. Without their support and the support from the EU Delegation to Singapore, the conference would not have concluded as successfully as it did.

    * The writer would like to thank SMU Centre for Cross-Border Commercial Law in Asia and Professors Pasha Hsieh and Dorcas Quek for putting together this intellectually stimulating conference, especially during these trying times of a pandemic. The writer would also like to thank Professor Hsieh for the opportunity to attend and cover the event.

    ** This blog entry may be cited as Victoria Liu Xin Er, “ASEAN Law Conference 2020”  (22 December 2020) (http://www.singaporelawblog.sg/blog/article/253)

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

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