The International Law Association (ILA)-American Society of International Law (ASIL) Asia-Pacific Research Forum on “International Law and Post-Pandemic Asia: New Economic Challenges and Opportunities” was held on 5-6 August 2021. The forum was co-organised by the Centre for Commercial Law in Asia (CCLA) of the Singapore Management University (SMU) Yong Pung How School of Law, the ILA’s Taiwan Branch and the ASIL’s Asia-Pacific Interest Group. The Research Forum brought together distinguished academics, government officials and practitioners from around the world.

Due to the COVID-19 pandemic, the forum had to be conducted online. Nonetheless, it still managed to generate stirring and stimulating discussions on a plethora of issues, such as those relating to investor-state dispute settlement, sustainable development and global health laws. This note highlights some of the key insights raised during the forum.

 

Asia’s New Legal Order: The Roles of China and the United States

The first day of the forum began with opening remarks by distinguished guests including ASIL President Catherine Amirfar, ILA representatives Professors Torsten Stein and Chun-i Chen and CCLA Director Yip Man. The speakers noted the difficulties brought about by the COVID-19 pandemic, but expressed optimism about the opportunities that had surfaced over the past two years.

The session continued with a discussion on the roles of China and the United States in Asia’s new legal order. Moderated by Lau Kwan Ho, CCLA Deputy Director, the panel brought up several cross-border and global regulatory concerns. Trang (Mae) Nguyen, from Temple University, examined the rise of large transcontinental suppliers such as Foxconn and Li & Fung. These suppliers are at the top of the global supply base that has made possible the business empires of brands like Apple and Walmart. She noted that global supply chain governance is being increasingly managed by these multinational suppliers rather than corporate buyers, and that such an economic arrangement has impacted the way legal and business norms are implemented in global value chains.

Next, Charles Ho Wang Mak of the City University of Hong Kong analysed the existing international approach to sovereign debt restructuring (SDR) amidst the COVID-19 pandemic. In his view, the current approach resembled a patchwork of fragmented, inconsistent and insufficient regulations, because of the various measures put forth by the international community to deal with SDR and the interplay between these SDR measures and international investment agreements. Instead, he proposed that the International Monetary Fund’s (IMF) 2003 proposal for a unified SDR regime should be revisited. The original proposal failed because of fears of impartiality stemming from the IMF’s dual role as creditor and adjudicator. To counter this, Mak suggested that disputes should be heard by sovereign debt experts who have been nominated by countries to act as arbitrators.

Finally, Yueming Yan, Global Ph.D. Fellow of the SMU Yong Pung How School of Law observed that China is undergoing a paradigm shift with respect to core labour rights. Yan contended that the finalisation of negotiations between China and the European Union on the Comprehensive Agreement on Investment provided the former with an opportunity to strengthen its labour rights protection and its progress towards sustainable development.

 

Contemporary Asia-Pacific FTAs

The second session, moderated by Wendy Ho of Soochow University, opened with an evaluation of the international rules governing state-owned enterprises (SOEs) by Leonardo Borlini of Bocconi University. With negotiators of preferential trade agreements increasingly compelled to include rules targeted at SOEs, Borlini emphasised that it was key to understand the origin of such rules. The rules sought to achieve two goals: (a) to create the conditions for internationally contestable markets; and (b) to permit domestic constituencies to maintain sufficient policy space for using SOEs to contribute to important public goals.

The regulation of SOEs was also the focus of Kai-Chih Chang’s presentation. Hailing from Soochow University, Chang assessed the various international agreements governing SOEs and observed that each had its flaws. For example, under the WTO rules, SOEs should make business decisions based on commercial considerations, but this was difficult to determine. Under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, SOEs were defined as entities in which a government held more than 50% of the shares, but this did not account for cases where a government has de facto effective influence over an entity.

Siqi Zhao of Katholieke Universiteit Leuven then considered how FTAs could promote and protect cultural and creative industries, with a particular focus on the experiences of Korea and Japan. Based on her research, Zhao found that Korea took a more cautious attitude towards liberalising cultural trade and prioritised preserving sufficient policy space for domestic cultural policy measures. In contrast, Japan favoured a more offensive attitude towards liberalising cultural trade. She concluded that the divergent approaches adopted by the two countries stemmed from their differing domestic cultural policy models.

Lastly, Ching-wen Hsueh of National Chengchi University explained how the secrecy of trade negotiations diminishes the public’s perception of the legitimacy of the resulting FTAs (ie, popular legitimacy). In her view, while many FTAs contain transparency provisions, these generally only pertained to internal transparency, meaning the disclosure of information among members of the FTAs. External transparency, which refers to openness vis-à-vis the general public, was at best only a voluntary obligation under many FTAs.

 

Environment, Energy and Sustainability

The first day of the forum wrapped up with a discussion on issues concerning sustainable development chaired by Matthew Erie, co-chair of the ASIL’s Asia-Pacific Interest Group and Associate Professor at Oxford University. Pei-Lun Tsai of the National Taiwan Ocean University kicked off the session by highlighting the growing number of domestic lawsuits being filed on the basis of climate change considerations. While such a trend may increase the accountability of governments and corporations, Tsai opined that the decisions may be difficult to enforce. She also questioned whether there was a threat to the separation of powers if the judiciary appeared to be interfering with the discretion of the executive branch to determine the state’s climate commitments.

Denise Cheong of the National University of Singapore (NUS) then examined the normative basis for transboundary consultation on nuclear power development in Southeast Asia. She focused on two stages of nuclear power development: (a) the decision to embark on a nuclear power programme; and (b) the decision of where to site the nuclear plant. She found that, at the international level, there is more normative support for (b) compared to (a).

Helen Hai-ning Huang, a senior associate at Taiwan’s Lee and Li, Attorneys-at-Law, concluded the first day of the forum proceedings by analysing Taiwan’s localisation of its offshore wind industry. She argued that, while such localisation may not fully adhere to the provisions of certain WTO agreements, it may nonetheless be justified by Article XX(d) of the General Agreement on Tariffs and Trade (GATT). This exception allows states to use measures which are necessary to protect human, animal or plant life or health. However, Huang contended that Article XX(b) should be interpreted in a way that integrates the key elements of a climate articulation for local content requirements adopted for energy transition, including the urgency of transforming the energy system.

 

Investment Agreements and Investor-State Disputes

The first session of the second day of the forum was moderated by Richard Chen of the University of Hawai'i at Mānoa. SMU Global Visiting Assistant Professor Mark McLaughlin opened the session with an evaluation of the role of international investment law in the protection of digital infrastructure and data flows along the Digital Silk Road. Having first explained how data qualifies as protected investments under international investment law, McLaughlin set out four grounds on which investors could challenge data restrictions imposed by states: non-discrimination, fair and equitable treatment, indirect expropriation and prohibitions on performance requirements. He ended by proposing two reforms to international investment agreements to adapt to a data-driven future: (a) treaty standards should be drafted with more precision to reinforce their anti-protectionist purpose; and (b) privacy should be included as a matter of course with general exceptions clauses.

Chen Yu (incoming NUS Law Post-Doctoral Fellow) then touched on the advantages and risks of different types of dispute prevention mechanisms (DPMs) to host states in the context of investment disputes. She explained that, among other benefits, DPMs help to reduce the cost and duration of investment dispute settlement and may provide countries with a less expensive avenue to develop their understanding of the rules and principles in investment law, thus mitigating the inequality in legal capacity between states.

Jeffrey (Chieh) Lo of the Chinese Arbitration Association in Taipei next considered the significance of two recent investment arbitration claims against Taiwan. Known as the Surfeit and SOGO cases, both disputes had arisen out of the Singapore-Taiwan FTA. Lo opined that while the claims in both cases were relatively weak, they represented a valuable opportunity for the Taiwanese government to sharpen its understanding of investment arbitration procedures and so prepare itself for future claims.

Finally, Alexandr Svetlicinii of the University of Macau shared his insights on the extent to which the EU-China CAI addresses existing competition law-related concerns. Two issues were especially pertinent: (a) whether there was sufficient protection for EU investors from the possible arbitrary competition law enforcement in China; and (b) whether there was any additional obligation for the EU to enhance the enforcement of competition laws against SOEs. Assessing the EU-China CAI against these two issues, Svetlicinii concluded that the treaty might only have limited added value to the current state of affairs.

 

Response to COVID-19: Global Health Law and Other Legal Techniques

The last topic of the forum centred on the legal implications of the COVID-19 pandemic, with Ching-Fu Lin of National Tsing Hua University chairing the session. Fernando Dias Simões of the Chinese University of Hong Kong began the session by highlighting how the COVID-19 pandemic had exposed the fragilities of the international health regime. He focused his attention on the provision of the International Health Regulations which allows States Parties to implement their own health measures in response to specific public health risks subject to several qualifications. This provision had taken centre-stage in the early days of the pandemic, when some State Parties had imposed travel restrictions against the World Health Organization’s (WHO) express recommendations. According to Dias Simões, the root cause of State Parties’ disregard of this provision was the uncertainty surrounding its scope and interpretation, and therefore the WHO ought to consider rephrasing it to improve the provision’s normative “compliance pull”.

Ngan Vu of Vietnam’s Foreign Trade University then discussed the principle of common concern of humankind as the basis for cooperation on vaccine trade during the pandemic. According to this principle, there are certain issues which individual states are unable to resolve by themselves, and which instead necessitate global collective action. Ngan opined that vaccine equity is one such issue, as it would enable global herd immunity against the coronavirus to be achieved, which would in turn end the pandemic. Once recognised as an issue of common concern of humankind, states would have a duty to cooperate in three areas: (a) the development of safe and effective vaccines; (b) the inter-state supply and distribution of vaccines; and (c) the intra-state deployment and use of vaccines.

Concluding the forum, Makoto Seta of the Yokohama City University examined the legal issues arising from situations when infectious diseases occur onboard cruise vessels. This had emerged as a pressing concern when several cruise ships were denied entry into international ports amidst COVID-19 fears. Seta argued that the existing legal framework was unsatisfactory given that there were multiple sources of law that could plausibly govern the issue of port access, with the relationship between the sources of law being unclear. Rather, he suggested that a new framework should be introduced where coastal states are granted broad discretion to decide whether to grant access of foreign cruise vessels into their ports, but which also imposes a duty on those states to allow entry in certain circumstances.

The forum closed with remarks by ILA Australian Branch president Natalie Klein and Associate Dean (Faculty Matters & Research) Pasha Hsieh of the SMU Yong Pung How School of Law. They expressed their appreciation towards all panellists for accepting the invitation to speak at the forum, and for the robust discussions generated by the presentations. Finally, the organisers expressed their heartfelt gratitude to ILA, CCLA and ASIL colleagues who were involved in putting together and facilitating this intellectually stimulating event.

 

Research Publication

Selected papers presented at the forum will be published in the Chinese (Taiwan) Yearbook of International Law and Affairs (Brill | Nijhoff).

* The writer would like to thank Professor Pasha Hsieh for the opportunity to attend and cover the event.

** This blog entry may be cited as Name, “2021 ILA-ASIL Asia-Pacific Research Forum”  (12 August 2021) (http://www.singaporelawblog.sg/blog/article/271)