Henry Gao DS in ASEAN External Agreements Dispute Settlement Provisions in ASEAN’s External Agreements with
China, Japan and Korea
Henry Gao
I.
Introduction
Since its inception in 1967, ASEAN has helped to enhance not only the political
cooperation of its member countries, but also the economic integration among the
members. In addition to promoting internal collaboration, another important task of
the ASEAN is to strengthen its ties with countries outside of the region. Over the
years, ASEAN has signed many agreements with other countries. Among them, the
agreements with its three big neighbors up north, i.e., China, Japan and Korea
(hereafter “CJK”) are especially noteworthy for the following reasons:
First, ASEAN countries had a troubled history with their northern neighbors,
especially Japan and china. This started with the Japanese invasion during the Second
World War, followed by the Chinese efforts to export revolution in the 1950s and
1960s by supporting communist parties and training soldiers for guerilla wars, as well
as the Sino–Vietnamese War in 1979. With such unpleasant experiences, it was no
surprise that ASEAN countries viewed the big powers from north with suspicion.
Indeed, one of the primary objectives for the founding of ASEAN in 1969 was to fend
off the threat from other powers and “ensure their stability and security from external
interference in any form or manifestation”.1 Given such historical background, the
fact that ASEAN is willing to conclude agreements with CJK countries provides

LLM, London; JD, Vanderbilt. Associate Professor of Law, Singapore Management University, Singapore; Dongfang Scholar Chair Professor, Shanghai Institute of Foreign Trade, Shanghai, China. The author can be reached at [email protected]. 1
1967 ASEAN Declaration, Adopted by the Foreign Ministers at the 1st ASEAN Ministerial Meeting in Bangkok, Thailand on 8 August 1967 , available at http://www.aseansec.org/1212.htm. 1 Henry Gao DS in ASEAN External Agreements strong testimony to ASEAN’s commitment of “integration through law”.
Second, in recent years, CJK has emerged as the largest trade partners of ASEAN
countries. For example, as of 2010, China is the largest trade partner of ASEAN,
while Japan and Korea are the third and fifth largest.2 Taken together, their total trade
accounts for more than one-fourth of ASEAN’s external trade. With such strong and
increasingly-close economic ties, it is very important for ASEAN to maintain good
relationship with CJK. In this regard, the international agreements provide the
necessary platform for ASEAN to manage their trade relations with CJK. Moreover,
as CJK are the biggest trade partners of ASEAN, their trade agreements with ASEAN
also provide good indications on how ASEAN manages the relationship with its trade
partners.
Thus, this study will focus on ASEAN’s external agreements with CJK countries. In
particular, we will concentrate on the dispute settlement mechanisms in these
agreements. Compared with the dispute settlement mechanisms within ASEAN’s
internal agreements, the dispute settlement mechanisms of ASEAN’s external
agreements provide the real litmus test in assessing the success of ASEAN’s in
building a rule-based regime for the following reasons:
First, the external agreements provide a way to test the ability of ASEAN to respond
to the pressures of larger, more powerful partners. The internal agreements are
negotiated among ASEAN members, thus are less susceptible to power politics as the
disparities among the members are relatively small. In contrast, the partners in
ASEAN’s external agreements are mostly big regional players or even global players,
thus highly likely to apply strong pressures against ASEAN countries in the
negotiations for the external agreements. Unless the ASEAN countries are able to
stand together and resist such demands, the external agreements will be subject to
2
Table 20: Top ten ASEAN trade partner countries/regions, available at http://www.asean.org/images/2012/resources/external_trade/Table20_27.xls. 2 Henry Gao DS in ASEAN External Agreements heavy influences by the external partners. Thus, studying the structure and design of
the external agreements can tell us a lot about whether ASEAN countries can
withstand external pressures.
Second, as these agreements are negotiated by ASEAN as a whole, they are also quite
different from the external agreements negotiated by individual ASEAN members.
Negotiating the individual agreements is much easier as the particular ASEAN
member can decide on its own. In comparison, when ASEAN countries negotiate
agreements with external partners on a collective basis, they have to first negotiate
among themselves to form a common position, then negotiate with the external parties
to shape the agreements. On issues that are particularly difficult, they might have to
go back and forth between external partners and ASEAN internal members before
they can finalize their position. Thus, these external agreements also provide valuable
insights on how well ASEAN can work as a whole and speak with a unified voice.
Among their agreements with ASEAN, China has a total of 15 agreements with
dispute settlement provisions; Japan has 3 such agreements while Korea has 5. In
addition, China and Korea each has one stand-alone agreement on dispute settlement.
A list of the individual agreements and the relevant provisions is provided in the
annex.
Depending on their scope and content, these agreements can be divided into two
categories: economic agreements, and non-economic agreements. The former covers
mainly trade issues, while the latter covers cooperation on a wide range of issues
ranging from security, territory, to transportation.
II.
Dispute Settlement Provisions in Non-economic Agreements
1. Typical Dispute Settlement Provision
3 Henry Gao DS in ASEAN External Agreements The non-economic agreements tend to favor dispute settlement provisions that are
weak and informal. The language typically used is “the disputes shall be settled
amicably through consultation or negotiations between the Parties without reference
to any third party”.3 There are several interesting points in such language:
First is the scope of “disputes” covered by the dispute settlement provisions. Does the
dispute settlement provisions apply only to the substantive provisions of the
agreements, or do they cover disputes on the other incidental matters as well? Some
agreements take a narrower approach. For example, under the 2002 Declaration on the
Conduct of Parties in the South China Sea by ASEAN and China, only territorial and
jurisdictional disputes are covered.4 In contrast, most agreements take a broader
approach, by noting that “any dispute or differences arising out of the interpretation or
implementation or application of the provisions of (the agreement)” are covered.5 In
the view of the author, the latter approach is better. Otherwise, the parties could avoid
being subject to the dispute settlement procedure by simply insisting on different
interpretations with the other disputing parties.
Second, only “the Parties” are eligible to participate in a dispute. As defined in these
agreements, “the Parties” refers to the contracting parties of the agreements. As such,
they mean the governments of the countries which are signatories to the agreements,
3
See e.g., 2004 Memorandum of Understanding between the Governments of the Member Countries of the ASEAN and the Government of the People’s Republic of China on Cooperation in the Field of Non‐traditional Security Issues, signed by ASEAN and Chinese Representatives in Bangkok, Thailand on 10 January 2004, available at http://www.aseansec.org/15647.htm, Art. 8; 2007 Memorandum of Understanding on Establishing the ASEAN‐Korea Centre between the Member Countries of the Association of Southeast Asian Nations and the Republic of Korea, signed by ASEAN and Korean Representatives in Singapore, Thailand on 20 November 2007, Art. 20. 4
2002 Declaration on the Conduct of Parties in the South China Sea, adopted by the Foreign Ministers of ASEAN and the People’s Republic of China at the 8th ASEAN Summit in Phnom Penh, Cambodia on 4 November 2002, available at http://www.aseansec.org/13163.htm, Art. 4. 5
See e.g., 2004 Memorandum of Understanding between the Governments of the Member Countries of the ASEAN and the Government of the People’s Republic of China on Cooperation in the Field of Non‐traditional Security Issues, signed by ASEAN and Chinese Representatives in Bangkok, Thailand on 10 January 2004, available at http://www.aseansec.org/15647.htm, Art. 8; 2004 Memorandum of Understanding between the Governments of the Member Countries of the Association of Southeast Asian Nations and the Government of the People’s Republic of China on Transport Cooperation, Signed in Vientiane, Laos on 27 November 2004, available at http://www.aseansec.org/16874.htm, Art. VII; 2007 Memorandum of Understanding on Establishing the ASEAN‐Korea Centre between the Member Countries of the Association of Southeast Asian Nations and the Republic of Korea, signed by ASEAN and Korean Representatives in Singapore, Thailand on 20 November 2007, Art. 20. 4 Henry Gao DS in ASEAN External Agreements and do not include private firms or individuals in these countries. This is
understandable as the political agreements typically do not create obligations for
private parties, thus they can claim no rights either.
In contrast, another issue is not so clear: do “the Parties” refer to the individual
member countries of the ASEAN, or ASEAN countries as a whole, or ASEAN as a
legal entity separate from its members either in collective or individual forms? The
last option seems to be the least plausible, as many of the agreements explicitly refers
to an agreement between CJK and “Governments of the Member Countries of the
ASEAN”.6 But it is more difficult to choose from the first two. On the one hand, one
may argue that because the agreements were negotiated by ASEAN members as a
whole, they shall also be interpreted the same way. Thus, all disputes require the
involvement of all ASEAN members. However, such an approach will create two
problems. Let us use an example of maritime transport to illustrate them. Assuming
that China has a problem in maritime transport with the Philippines, which doesn’t
affect the interests of any other ASEAN members. Shall all other ASEAN members be
dragged into the dispute along with the Philippines? The Philippines probably doesn’t
wish other countries to get involved as it perceives this to be a bilateral problem with
China, and the involvement of other countries might complicate the issue and making
it difficult to settle the problem. The other countries might also be reluctant to get
involved either as this doesn’t bring them tangible benefits and thus doesn’t justify the
additional costs for being involved in the case. Another scenario is a maritime
transport problem between China and Vietnam. As part of the solution to their
problems, China agreed that its ships will avoid the territorial waters of Vietnam
unless it is their ultimate destination. This means that ships from China have to travel
longer to reach Thailand and increases the freight costs. In such a case, shall Thailand
6
See e.g., 2004 Memorandum of Understanding between the Governments of the Member Countries of the ASEAN and the Government of the People’s Republic of China on Cooperation in the Field of Non‐traditional Security Issues, signed by ASEAN and Chinese Representatives in Bangkok, Thailand on 10 January 2004, available at http://www.aseansec.org/15647.htm; 2004 Memorandum of Understanding between the Governments of the Member Countries of the Association of Southeast Asian Nations and the Government of the People’s Republic of China on Transport Cooperation, Signed in Vientiane, Laos on 27 November 2004, available at http://www.aseansec.org/16874.htm. 5 Henry Gao DS in ASEAN External Agreements be entitled to participate in the original dispute between China and Vietnam? What if
Thailand’s involvement makes it more difficult or impossible for Vietnam to reach a
settlement with China?
On the other hand, if we only allow countries with interests in the case to participate,
there would be problems as well. First, as the Vietnam-Thailand example above has
illustrated, whether a country has an interest in a case is not an issue as clear-cut as we
might have thought. Due to their geographical proximity, countries in this region often
found their interests intricately linked together. Sometimes, even if they don’t have an
interest in the original dispute, they might have their interest affected, either favorably
or adversely, by different possible solutions to the original dispute. In such cases, it
doesn’t seem reasonable to draw the definition of the interests of countries too
narrowly. Second, as the Southeast Asian countries are much smaller than their
Northeast Asian neighbors, limiting the participation in disputes only to countries
which are involved in the dispute makes ASEAN countries more vulnerable to
possible bullying from CJK. Thus, to create a more level-playing field, it is probably
better to have the whole ASEAN brotherhood behind every case to reinforce solidarity
among ASEAN members.
Given these difficulties, it would be preferable if the ASEAN members could clarify
this issue in their agreements.
Third, in terms of mode of dispute settlement, only consultation or negotiation is
allowed. As a diplomatic means of dispute settlement, consultation/negotiation offer
important advantages over legal or juridical approach such as greater flexibility,
privacy and control by the parties over the outcome, reduced cost, balance of political
with legal considerations, etc.7 At the same time, however, the approach is also
7
See Ernst‐Ulrich Petersmann, Proliferation and Fragmentation of Dispute Settlement in International Trade: WTO Dispute Settlement Procedures and Alternative Dispute Resolution Mechanisms, in Julio Lacarte and Jaime Granados eds., Inter‐Governmental Trade Dispute Settlement: Multilateral and Regional Approaches, Cameron May, 2004, at 429, 6 Henry Gao DS in ASEAN External Agreements criticized for being too “power-oriented”, not sufficiently focusing on the legal merits
of each party’s case, and weakening the rule-based system. In particular, for smaller
countries, the diplomatic approach seems to be better in dealing with disputes with
countries of similar sizes, while not very suitable for handling problems with much
larger countries.
Of course, one may also argue that, as neither ASEAN countries nor CJK have been
very fond of the legal means of dispute settlement, negotiation/consultation might be
a more suitable approach to solve the disputes in this region. Moreover, due to their
geographical proximity and complicated historical relationship, it might be more
important to preserve the harmony in the region rather than trying to spell out the
detailed winning/losing points of parties in each dispute.
Such thinking is reflected in the language used in the dispute settlement provisions,
which explicitly states that the negotiation/consultation shall be conducted in a
“friendly/amicable” manner. In addition, some agreements also explicitly state that
such friendly consultation shall not be undermined by “resorting to the threat or use of
force”.8 Thus, it seems that the parties are more concerned with maintaining the
friendly atmosphere with solutions that are acceptable to all parties rather than making
any party losing face by losing a legal dispute.
Consultations are usually conducted on a confidential basis between the parties
involved. Third parties which are unrelated to the case are typically excluded from the
consultation process. Without the interference of third parties, the dispute parties tend
to be more frank in their exchange of views, thus making it easier to reach
agreements.
As consultation is conducted on a bilateral basis, its success depends to a large extent
8
2002 Declaration on the Conduct of Parties in the South China Sea, adopted by the Foreign Ministers of ASEAN and the People’s Republic of China at the 8th ASEAN Summit in Phnom Penh, Cambodia on 4 November 2002, available at http://www.aseansec.org/13163.htm, Art. 4. 7 Henry Gao DS in ASEAN External Agreements on the active engagement and cooperation of both parties. Thus, one obvious
weakness of this approach is that one party (usually against whom the consultation is
requested) could take a passive or even uncooperative approach, making things
difficult for the other party. To solve the problem, many international agreements also
explicitly state that each party shall “shall accord sympathetic consideration to, and
shall afford adequate opportunity for consultation”. 9 However, none of the
ASEAN-CJK agreements surveyed here contain such explicit language. It might be
better for the parties to include such language in the agreements.
In cases where direct communication between the disputing parties proves to be
difficult, the negotiation/consultation could be facilitated through the involvement of
third parties.10 However, the mere facilitation of consultation by third parties could be
confused with other means of dispute settlement through third parties. To prevent such
misunderstanding, certain ASEAN-CJK agreements explicitly state that the
consultation/negotiation shall be conducted “without reference to any third party”.11
However, as discussed above, it is unclear whether such language excludes the
involvement of other ASEAN countries which are not directly involved in the dispute
or the ASEAN as a whole as they themselves might participate in the dispute as
“parties”.
Another related issue is whether negotiation/consultation would preclude recourse to
another dispute settlement procedure, especially international judicial procedure. One
may argue that as international tribunals are considered third party dispute settlement,
they are covered by the clause against the reference to third parties mentioned above.
It would be better to explicitly state this. On the other hand, it could also be argued
that the preclusion of the involvement of third parties only apply to the consultation
9
Office of Legal Affairs – Codification Division, Handbook on the Peaceful Settlement of Disputes Between States, United Nations, New York, 1992, at 16‐18. 10
Id., at 11‐12, 18‐19. 11
2009 Memorandum of Understanding between the Association of Southeast Asian Nations (ASEAN) and the Government of the People’s Republic of China on Cooperation in the Field of Non‐traditional Security Issues, Art. 8; 2007 Memorandum of Understanding on Establishing the ASEAN‐Korea Centre between the Member Countries of the Association of Southeast Asian Nations and the Republic of Korea, Art. 20. 8 Henry Gao DS in ASEAN External Agreements stage and doesn’t apply to instances where one or both party seek recourse to another
means of dispute settlement. There seems to be no consistent practice among
ASEAN’s agreements. For example, the 1976 Treaty of Amity and Cooperation, to
which CJK also acceded as a signatory, explicitly states in that “nothing in this Treaty
shall preclude recourse to the modes of peaceful settlement contained in Article 33(l)
of the Charter of the United Nations”.12 The contrary examples can be found in two
agreements signed between China and ASEAN, which prohibits the reference not only
to third parties but also to “any international tribunal”.13 It’s interesting to note,
however, that as these two agreements cover agriculture and intellectual property
rights respectively, disputes arising under them could potentially be subject to the
WTO dispute settlement procedure, which has compulsory jurisdiction. In such cases,
the preclusion to recourse to international tribunal might be declared illegal.
Suppose that the parties go through extensive consultation process, but still can’t
solve their differences, what shall they do then? Most ASEAN-CJK agreements are
silent on this issue. Practically speaking, there are three possibilities: a. try other
political/diplomatic means of dispute settlement, such as good offices, mediation or
conciliation; b. make use of legal/juridical approach, such as the various international
tribunals; and c. abandon peaceful means of dispute settlement and resort to the use of
force. The last option is probably beyond the scope of this paper. Moreover, as most
agreements require parties to settle the disputes “amicably” or “by peaceful means,
without resorting to the threat or use of force”14, they are not very likely to be used.
The second option will be discussed in detail in the section below, but it is suffice to
note here that other than in the WTO, it seems unlikely for the CJK countries to
subject their disputes to international tribunals. In contrast, the first option seems to be
12
Art. 17 2007 Memorandum of Understanding between the Association of Southeast Asian Nations (ASEAN) Secretariat and the Ministry of Agriculture of the People’s Republic of China on Agricultural Cooperation; 2009 Memorandum of Understanding between the Governments of the Member States of the Association of Southeast Asian Nations and the Government of the People’s Republic of China on Cooperation in the Field of Intellectual Property. 14
2002 Declaration on the Conduct of Parties in the South China Sea, adopted by the Foreign Ministers of ASEAN and the People’s Republic of China at the 8th ASEAN Summit in Phnom Penh, Cambodia on 4 November 2002, available at http://www.aseansec.org/13163.htm. 9 13
Henry Gao DS in ASEAN External Agreements the most realistic choice. Probably in view of this, the 2010 Air Transport Agreement
between ASEAN and China states in Art. 21 that “In the event that no agreement is
reached [through consultation], it shall be settled through diplomatic channels.” If
the ASEAN-CJK countries really prefer diplomatic means of dispute settlement, it
would be better if they could copy the provision into all other agreements as well.
2. Treaty of Amity and Cooperation
In addition to the dispute settlement procedures in these subject-specific agreements,
another possible mechanism to deal with the disputes between ASEAN and CJK is the
dispute settlement procedure in the Treaty of Amity and Cooperation (TAC). Initially
concluded by the original five ASEAN members, i.e., Indonesia, Malaysia,
Philippines, Singapore and Thailand, the TAC includes an open accession clause for
other countries in Southeast Asia.15 In 1987, this clause was amended by a protocol
adopted at the Manila Summit (Manila Protocol) to provide for the possibility of
accession by the states outside of Southeast Asia.16 Pursuant to this provision, China,
Japan and Korea acceded to the TAC in October 2003, July and November 2004
respectively.17
The TAC devotes one entire chapter, i.e., Ch. IV, to dispute settlement. The first
article in the chapter, Article 13, starts by exhorting the contracting parties to “have
the determination and good faith to prevent disputes from arising”. In case disputes do
arise, the same article calls for contracting parties to “refrain from the threat or use of
force” and settle such disputes through peaceful means instead.
According to the Chapter, there are three possible means of dispute resolution:
15
Article 18. 1987 Protocol Amending the Treaty of Amity and Cooperation in Southeast Asia, Adopted by the Foreign Ministers at the 3rd ASEAN Summit in Manila, the Philippines on 15 December 1987, available at http://www.aseansec.org/3632.htm, Art. 1. 17
Table of ASEAN Treaties/Agreements and Ratification, available at http://www.asean.org/images/2012/resources/TABLE%20OF%20AGREEMENT%20%20RATIFICATION‐SORT%20BY
%20DATE‐Web‐October2012.pdf. See also http://cil.nus.edu.sg/treaty‐status‐database/. 10 16
Henry Gao DS in ASEAN External Agreements The first is bilateral negotiations between the disputing parties. According to Article
13, such negotiations shall be conducted in a “friendly” manner and shall not involve
the use or the threat of force.
Second, if direct negotiations fail to solve the dispute, then the parties could make use
of one of several “regional processes”. The first two regional processes involve the
High Council, which is a standing body established by the contracting parties
comprising ministerial-level representatives from each of the contracting parties.18
The High Council may either recommend to the parties “appropriate means of
settlement such as good offices, mediation, inquiry or conciliation” through other
institutions, or offer its own good offices or “constitute itself into a committee of
mediation, inquiry or conciliation” if the disputing parties so agree.
While the High Council seems to be a powerful mechanism for dispute settlement, its
utility is restrained by Article 16, which states that “the foregoing provision of this
Chapter” (including Articles 14 and 15, which set out the constitution and function of
the High Council) shall not apply to a dispute “unless all the parties to the dispute
agree to their application to that dispute”. This is commonly understood to mean that
the High Council process is voluntary and could only be invoked if all parties to the
dispute agree to its use.19 However, there is also a more extreme view (albeit minority)
that Articles 14 and 15 would not apply to a dispute at all unless the parties to the
dispute specifically agree to the “application” of the articles to their dispute.20
In addition to the High Council as an institutionalized mechanism, Article 16 also
18
Art. 14. Walter Woon, Dispute Settlement in ASEAN, (Conference paper presented at the Korean Society of International Law Conference, 21 October 2011, Daegu, South Korea.), at 5, available at http://cil.nus.edu.sg/wp/wp‐content/uploads/2010/08/DISPUTE‐SETTLEMENT‐IN‐ASEAN‐KSIL‐ProfWalterWoon.p
df ; UNCTAD, Dispute Settlement: Regional Approaches, 6.3 ASEAN, United Nations, 2003, at 7; 20
Ramses Amer, The Association of Southeast Asian Nations’ (ASEAN) Conflict Management Approach Revisited: Will the Charter Reinforce ASEAN’s Role?, ASEAS: Österreichische Zeitschrift für Südostasienwissenschaften (2009), Vol. 2 Issue 2, at 11. 11 19
Henry Gao DS in ASEAN External Agreements provides an ad hoc mechanism, i.e., the offer by other contracting parties not involved
in the dispute to provide assistance in settling the dispute. Interestingly, even though
such mechanism is much less formal than the High Council process, it is subject to
much less restraints as the disputing parties are urged to be “well disposed towards
such offers of assistance”. While this seems to imply that the agreements of the
disputants are not required, the author doubts this to be the case in reality as any
well-intentioned third party would not be able to function well without the good will
of the disputing parties.
The third option is the multilateral mechanism. According to Article 17, in addition to
the mechanisms discussed above, the parties may also have recourse to “the modes of
peaceful settlement contained in Article 33(1) of the Charter of the United Nations”.
The means listed in Article 33(1) include “negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice.” Among them, negotiation,
enquiry, mediation, conciliation, and resort to regional agencies or arrangements are
also mentioned in Articles 14-16, which were discussed above. This leaves us with
arbitration and judicial settlement, which are not provided at the regional level in
ASEAN. In practice, such mechanisms mainly refer to the International Court of
Justice (ICJ) and the various UN specialized tribunals, such as the International
Tribunal for the Law of the Sea (ITLOS). Among the ASEAN countries, Cambodia,21
Indonesia,22 Malaysia,23 Thailand and Singapore have all litigated cases before the
ICJ, while Malaysia,24 Myanmar25 and Singapore26 have been involved in cases
before the ITLOS. In contrast, among the CJK countries, only Japan has litigated
21
Request for interpretation of the Judgment of 15 June 1962 in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), 2011; Temple of Preah Vihear (Cambodia v. Thailand), 1959. 22
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), 1998. 23
Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), 2003; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), 1998. 24
Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures. 25
Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar). 26
Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures. 12 Henry Gao DS in ASEAN External Agreements cases before the ICJ27 or the ITLOS.28 If history is of any guidance, the only dispute
we might see before these international tribunals would be those between the ASEAN
countries and Japan, while it is highly unlikely to see China and Korea submit
themselves to the jurisdiction of such international tribunals in their disputes with
ASEAN countries.
Among the three mechanisms, the High Council is the most interesting as it is the
only regional mechanism native to ASEAN. However, the sparse language in Chapter
IV of the TAC fails to provide sufficient details on the mechanism. While some
commentator praises the flexibility of the procedure to be “ASEAN’s biggest plus” as
it allows countries the “freedom to choose which course of action to take”,29 many
scholars criticized the mechanism as being too weak.30
In an effort to overhaul the mechanism, the ASEAN countries adopted the Rules of
Procedure of the High Council of the TAC in Hanoi in July 2001. Comprising 25 rules,
the Rules of Procedure fine-tuned many of the operational issues of the High Council.
First, the Rules specify how the High Council shall be composed. According to Rule 3,
the High Council shall comprise two categories of members: one ministerial-level
representative from each of the 10 ASEAN member state, and one ministerial-level
representative from contracting parties which are not ASEAN members. While
according to Article 14 of the TAC, the High Council shall be constituted as “a
continuing body”, this doesn’t necessarily mean that all representatives on the Council
shall be permanent members. Instead, according to Rule 3, the Council shall only
include those non-ASEAN contracting parties that “are directly involved in the
27
Whaling in the Antarctic (Australia v. Japan), 2010. Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures; The "Hoshinmaru" Case (Japan v. Russian Federation), Prompt Release; The "Tomimaru" Case (Japan v. Russian Federation), Prompt Release. 29
Mely Caballero‐Anthony, Mechanisms of Dispute Settlement: The ASEAN Experience, Contemporary Southeast Asia, Vol. 20, No. 1 (April 1998), pp. 38‐66, at 50. 30
Vitit Muntarbhorn, The Challenge of Law: Legal Cooperation among ASEAN Countries (Bangkok: Institute of Security and International Studies, 1986), at 19. Walter woon, dispute settlement in ASEAN, at 5. 13 28
Henry Gao DS in ASEAN External Agreements dispute which the High Council takes cognisance of pursuant to the TAC”. Put it
another way, the non-ASEAN contracting parties do not have permanent
representation on the High Council. Instead, they can only appoint representatives on
an ad hoc basis when they have a dispute that the High Council takes cognisance of
pursuant to the TAC. If we put this together with our earlier discussion on the
requirement for both disputing parties to agree to submit their disputes to the High
Council before it can take cognisance of the dispute, this Rule effectively means that
ASEAN member states can prevent the non-ASEAN contracting parties to the TAC
from having recourse to the High Council by simply refusing to submit the dispute to
the Council. On the other hand, however, the non-ASEAN contracting parties do not
enjoy such unilateral veto power. While such one-sided provision might seem unfair
to independent observers, it might be a necessary compromise to help alleviate
concerns by certain ASEAN members (especially Indonesia) which feared that the
Manila Protocol would allow external powers to interfere in regional problems or
abuse the treaty’s provision on the pacific settlement of disputes.31 As aptly put by
Walter Woon, “[w]ashing of dirty linen in public is bad enough; washing it in full
view of people outside the family is worse. There is a view among some ASEAN
members, ventilated during the negotiations on the ASEAN Charter, that ‘outsiders’
should not be part of any dispute settlement mechanism. Regional solutions for
regional problems was the mantra. This view did not command the unanimous
agreement of all the ASEAN members, but it remains strongly held in some
quarters”.32 Such attitude also explains why the Manila Protocol, at the same time of
providing for the possibility for non-ASEAN members to accede to the TAC, also
amended Article 14 of the TAC by stating that the article applies to non-ASEAN
contracting parties “only in cases where that state is directly involved in the dispute to
be settled through the regional processes”. In line with the same approach, Rule 5 also
provides that only a representative from an ASEAN member may be the Chairperson
of the High Council.
31
Mely Caballero‐Anthony, Mechanisms of Dispute Settlement: The ASEAN Experience, Contemporary Southeast Asia, Vol. 20, No. 1 (April 1998), pp. 38‐66, at 51. 32
Walter Woon, Dispute Settlement in ASEAN, at 5. 14 Henry Gao DS in ASEAN External Agreements Second, the Rules also provide detailed guidelines on the dispute settlement
procedures of the High Council. According to Rule 6, the procedure may only be
invoked by a party directly involved in a dispute. To initiate the procedure, the party
shall submit to the Chairperson and the other contracting parties a written
communication that includes the following: a. the nature of the dispute or situation
referred to the High Council; b. the parties to the dispute and their respective claims;
and c. the basis upon which the High Council shall take cognisance of the dispute or
situation pursuant to the Treaty. 33 Upon receiving the communication, the
Chairperson shall seek written confirmation from all parties to the dispute to confirm
their agreement to the application of the High Council procedure.34 In addition, the
other disputing parties shall provide detailed statements similar to the ones provided
in the original written communication. In the view of the author, these statements
provide details on the facts, claims and legal arguments and are similar to the written
submissions in other international tribunals, such as the WTO dispute settlement
panel.
Upon receiving the written confirmations from all the disputing parties, the
Chairperson shall convene a meeting of the High Council within 6 weeks.35 The
quorum for meetings of the High Council shall consist of all the Representatives of
the High Council.36 The meeting shall be conducted in English,37 and all decisions
shall be made by consensus.38 If necessary, the High Council may adopt rules of
procedure for its meetings.39 It may also establish working groups on an ad hoc basis
to assist it in discharging its functions.40
33
Rule 7. Rule 8 35
Rule 10. 36
Rule 12. 37
Rule 17. 38
Rule 19. 39
Rule 23. 40
Rule 24. 34
15 Henry Gao DS in ASEAN External Agreements While the Rules of Procedure is a big improvement over the cryptic language in the
TAC, it still falls far short of making the High Council a useful dispute settlement
mechanism. The biggest weakness of the Rules of Procedure is that it provides little
guidance on how the proceedings of the meetings of the High Council shall be
conducted. While Part VI is supposed to address meeting proceedings and includes
seven clauses, they are mostly about the administrative issues of the proceedings and
hardly provide details on the substantive process. In addition, the utility of the Rules
of Procedure is further restrained by the following defects:
The first problem is the voluntary nature of the whole process. As the process is not
compulsory, the agreement of all disputing parties is needed to move every step of the
process. Thus, an unwilling respondent has plenty of opportunities to stalk the
proceedings at every key step of the dispute settlement process: first is defeating the
initiation of the procedure by simply refusing to provide written confirmation after it
receives the written communication from the complainant;41 second is the breaking of
the required quorum by simply refusing to attend the meetings of the High Council;42
and third is blocking the High Council from reaching decisions by refusing to join the
consensus at the relevant meetings.43
The second problem relates to the identities of the Representatives. According to Rule
3, the Representatives of the contracting parties shall be at ministerial level. This
means that first, they must be government officials rather than non-governmental
experts; and second, they are high-level officials. There are no requirement that they
must be lawyers or legally-qualified. Even if they were trained as lawyers before
being appointed as ministers, with their high political position, they probably will give
more weight to political rather than legal considerations. It could be argued that
lawyers could be brought in through Rule 13, which allows Representatives to be
represented either by proxies or accompanied by alternates and advisers. Furthermore,
41
Rules 8‐9. Rule 12. 43
Rule 19. 42
16 Henry Gao DS in ASEAN External Agreements lawyers could well assist the High Council as part of the ad hoc working groups
established according to Rule 24. However, as these provisions do not specifically
require the presence of lawyers, there is no guarantee that there will be sufficient legal
expertise in the dispute settlement process.
Third, even if the Representatives in the High Council wish to give more weight to the
legal rules, they do not have sufficient substantive legal rules to work with. As it is
repeatedly emphasized44 in the Rules of Procedure, the only legal basis the parties
may invoke are the terms of the TAC. However, the TAC does not include many
substantive rules and the closest to legal obligations one can find in the TAC are the
following fundamental principles in Article 2:
a. Mutual respect for the independence, sovereignty, equality, territorial integrity
and national identity of all nations;
b. The right of every State to lead its national existence free from external
interference, subversion or coercion;
c. Non-interference in the internal affairs of one another;
d. Settlement of differences or disputes by peaceful means;
e. Renunciation of the threat or use of force;
f. Effective cooperation among themselves.
But even these principles are too abstract and can hardly provide any help in
addressing any specific disputes.
Fourth, even if the High Council manages to overcome all of the obstacles mentioned
above and somehow adopt a decision regarding a specific dispute, its effort could still
end up in vain as there is no provision that require the disputing parties to respect such
decision, implement it, or face sanctions for failure to implement.
44
See e.g., Rule 7, which emphasized that “the basis upon which the High Council shall take cognisance of the dispute or situation” must be “pursuant to the Treaty”; Rule 22, which states that the High Council shall satisfy itself that “the conditions stipulated by the Treaty for the proposed action have been met” before “taking decisions on recommendations and other actions provided for under the Treaty”. 17 Henry Gao DS in ASEAN External Agreements Finally, in addition to all of the foregoing problems, which apply equally to ASEAN
and non-ASEAN countries, there are also many discriminatory provisions directed at
non-ASEAN members alone. These include, for example, the rule that ASEAN
countries shall be permanent members of the High Council while non-ASEAN
members can only become members on an ad hoc basis when they are involved in
specific disputes with ASEAN countries as discussed above;45 the rule that only
ASEAN countries may become the Chairperson of the High Council;46 the rule that
ASEAN countries may participate in all meetings of the High Council while
non-ASEAN countries which are not directly involved in a specific dispute may only
participate in meetings upon the approval of the High Council and may not speak at
such meetings unless the Council grants such right; 47 and the rule that a
Representative from a non-ASEAN member is excluded from a decision on whether
such Representative is duly appointed to represent such country.48 Given so many
restraints on their procedural rights, it is doubtful that the non-ASEAN members will
be keen on utilizing the dispute settlement mechanism under the TAC.
Indeed, the non-ASEAN countries do not seem to be the only ones lacking confidence
in the High Council. As the High Council was envisaged as a “continuing body”
according to the TAC,49 it should have been constituted when the TAC was adopted
in 1976. However, 37 years later, the High Council has yet been constituted, and no
case has been brought under the mechanism so far.50
III.
Dispute Settlement Provisions in Economic Agreements
45
Rule 3. Rule 5. 47
Rule 14. 48
Rule 20. 49
Article 14. 50
According to Prof. Walter Woon, Indonesia had tried to bring the Ligitan/Sipadan dispute to the High Council under the TAC but Malaysia refused, fearing that other ASEAN members would be partial to Indonesia. See Severino, Southeast Asia in Search of an ASEAN Community (Institute of Southeast Asian Studies, Singapore, 2006), pp 12‐13. President Soeharto decided to submit the dispute to the ICJ, overriding the objections of his officials. See Walter Woon, Dispute Settlement in ASEAN, p. 12, footnote 58. 18 46
Henry Gao DS in ASEAN External Agreements In contrast to the weak and informal dispute settlement provisions in political
agreements, the clauses in economic agreements are usually much stronger and formal.
In addition, while political agreements typically offer consultation or negotiation as
the only means of dispute settlement, economic agreements offer the parties a variety
of dispute settlement mechanisms, with the highly-institutionalized WTO-style
arbitration panel as the dominant model.
As mentioned earlier, Japan included dispute settlement mechanism as a chapter in its
Comprehensive Economic Partnership Agreement with ASEAN. In contrast, both
China and Korea includes in their FTA packages with ASEAN a separate agreement
on dispute settlement mechanism (DSM). Their other economic agreements simply
state that any dispute under these agreements shall be resolved through the procedures
and mechanism as set out in the DSM agreement.51 But there are some notable
exceptions. For example, Article 8 of the 2009 Memorandum of Understanding
between ASEAN and China on Cooperation in the Field of Intellectual Property states
that disputes shall be settled “amicably through mutual consultation or negotiation
among All Participants through diplomatic channels, without reference to any third
party or international tribunal” (emphasis added by the author).52 Similarly, article
5.1.2 of the 2005 Framework Agreement on Comprehensive Economic Cooperation
among ASEAN and Korea explicitly carved out trade in services and investment from
the coverage of the DSM Agreement. These provisions reflects the reluctance of the
51
See e.g., Article 19 of 2006 Protocol to Amend the Agreement on Trade in Goods of the Framework Agreement on Comprehensive Economic Cooperation between the Association of Southeast Asian Nations and the People’s Republic of China, Signed in Cebu, Philippines on 8 December 2006, available at http://www.aseansec.org/akfta.htm; Article 5.1 of 2005 Framework Agreement on Comprehensive Economic Cooperation among the Governments of the Member Countries of ASEAN and the Republic of Korea, Signed by the Heads of State/Government at the 9th ASEAN‐Republic of Korea Summit in Kuala Lumpur, Malaysia on 13 December 2005, available at http://www.aseansec.org/18063.htm; Article 19 of 2006 Agreement on Trade in Goods under the Framework Agreement on Comprehensive Economic Cooperation among the Governments of the Member Countries of the Association of Southeast Asian Nations and the Republic of Korea, Signed in Kuala Lumpur, Malaysia on 24 August 2006, available at http://www.aseansec.org/AKFTA%20documents%20signed%20at%20aem‐rok,24aug06,KL‐pdf/TIG%20‐%20ASEA
N%20Version%20‐%2022August2006‐final.pdf. 52
2009 Memorandum of Understanding between the Governments of the Member States of the Association of Southeast Asian Nations and the Government of the People’s Republic of China on Cooperation in the Field of Intellectual Property, Signed by the Economic Ministers at the 12th ASEAN‐China Summit in Cha‐am Hua Hin, Thailand on 25 October 2009, available at http://www.aseansec.org/15thsummit/MoU‐Intelectual‐Property.pdf. 19 Henry Gao DS in ASEAN External Agreements parties to enforce non-traditional trade issues such as services, investment and
intellectual property rights.
1. Typical Dispute Settlement Procedure
In general, the dispute settlement procedures in the CJK agreements are very similar
to the one under the 2004 ASEAN Protocol on Enhanced Dispute Settlement
Mechanism (hereafter “EDSM”), 53 which in turn is modeled after the Dispute
Settlement Understanding (hereafter “DSU”) of the WTO. The main stages of dispute
settlement include the following:
A. Consultations
As mentioned above, consultations are bilateral negotiations that are often used in
non-economic agreements. Because they are conducted directly between the disputing
parties without the involvement of third parties, it is usually easier to solve the
disputes through consultations and that’s why they are also included in the economic
agreements. However, the consultation provisions in economic agreements do not
adopt the cryptic language in the non-economic agreements. Instead, they set out in
detail the format, content, and time limit for the consultation process. This is in
marked contrast to the loose language in political agreements and reflects the
legalistic nature of the economic agreements.
Similar to the WTO DSU, a party may file a request for consultations against a
measure by another party that nullifies or impairs the benefits accruable to the
complaining party under the covered agreements.54 The request shall be submitted in
writing to the responding party, and shall include the specific measures at issue, as
well as the factual and legal basis, such as the provisions of the covered agreements
53
2004 ASEAN Protocol on Enhanced Dispute Settlement Mechanism, adopted by the Economic Ministers at the 10th ASEAN Summit in Vientiane, Laos on 29 November 2004, available at http://www.aseansec.org/16754.htm. 54
China, Art. 4.1; Korea, Art. 3.1; Japan, Art. 62.1. 20 Henry Gao DS in ASEAN External Agreements allegedly breached.55
Interestingly, none of the three DSMs recognize non-violation complaints, i.e.,
nullification or impairment caused by a measure that does not violate the WTO
agreements.56 The China DSM made this explicit by stating that “[n]on-violation
disputes are not permitted under this Agreement”.57 The other two DSMs do not
include such explicit prohibition on non-violation complaints. However, as they only
recognize nullification or impairment caused by measures which are inconsistent with
a party’s obligation, or failure of a party to carry out its obligation,58 we can infer that
non-violation complainants are implicitly excluded. In the view of the author,
non-violation complainants are mainly designed to deal with the problems of
unforeseen developments caused by imperfect treaty drafting. For a big international
treaty like the GATT, it is impossible to have all the parties discuss whether such
unforeseen developments should be allowed due to the high transaction cost. In
contrast, for bilateral treaties like the CJK-ASEAN economic agreements, the
transaction cost is much lower. Thus, it is much better for the parties to solve the
problem through bilateral consultations in such cases rather than trying to force the
case through the dispute settlement mechanism.
Upon receipt of the request for consultations, the respondent shall reply to the request
within seven days and enter into consultations within thirty days.59 The parties shall
conduct the consultations with good faith and make every effort to reach a mutually
satisfactory solution.
As consultation is conducted on a bilateral basis, the disputing parties might be
reluctant to provide information for fear that such information might be used against
55
China, Art. 4.2; Korea. Art. 3.2; Japan, Art. 62.2. See Art. XXIII.b of General Agreement on Tariffs and Trade 1994; Art. XXIII.3 of General Agreement on Trade in Services. 57
China, Footnote 1 to Art.4.1. 58
Korea, Art. 3.1; Japan, Art. 62.1. 59
China, Art. 4.3; Korea, Art. 3.3; Japan, Art. 62.3. Note that the deadline to reply to the request is 10 days under the Japanese DSM. 21 56
Henry Gao DS in ASEAN External Agreements them in later proceedings. To alleviate such concern, the DSMs explicitly require the
parties to provide sufficient information to enable a full examination of how the
measure might affect the operation of the covered agreement. At the same time, to
avoid the misuse of the information, the parties are also required to treat information
provided by the other party confidential. To enable frank discussions, the consultation
process is also confidential and without prejudice to the rights of the parties under
other proceedings. If consultations fail to settle the dispute within sixty days, the
complainant may request for the establishment of the panel.
In case of urgency, such as those concerning perishable goods, the time periods for
starting and ending consultations are shortened to one-third of the original time
periods, i.e., ten days and twenty days respectively. This provision is of particular
importance to ASEAN, which export many tropical fruits that are easily perishable.
While the economic agreements do not make this explicit, consultation seems to be
the mandatory first-step in the dispute settlement procedure. This conclusion is drawn
from the provisions on the establishment of the arbitral tribunal, which can only be
requested by the complaining party in any of the three scenarios:
i.
The respondent fails to respond to the consultation request in time;
ii.
The respondent fails to enter into consultations in time; or
iii.
The consultation fails to resolve the dispute after certain period.
B. Parties
According to the DSMs, only the governments of the contracting parties to the
economic agreements may participate in the dispute settlement proceedings. Private
firms and individuals are not granted rights to participate in these proceedings. This is
in line with the arrangement under most other international dispute settlement
mechanism, such as the WTO DSU.
22 Henry Gao DS in ASEAN External Agreements The party that requests for consultation is called the complaining party (hereafter
“complainant”), while the party to which the consultation request is addressed is the
party complained against (hereafter “respondent”). 60 In addition, the DSMs also
allow a party other than the main disputing parties to participate in the dispute as third
parties if it has a substantial interest in a dispute. All three DSMs allow third parties to
participate in the panel process by simply notifying its interest in writing to the
parties.61 In addition, under the Chinese DSM, third party could also join in the
dispute as early as the consultations phase, provided that the respondent agrees that
the claim of substantial interest is well founded.62 Third parties shall receive the
submissions of the parties to the first panel meeting.63 Also, if a third party considers
a measure under any dispute process nullifies or impairs its benefits under the covered
agreements, such party may initiate its own case against the relevant party.64
C. Establishment of Arbitral Tribunal/Panel
Upon the delivery of the request for the establishment of the panel, the panel shall be
established automatically. As the arbitration panels are not standing bodies, they need
to be composed on an ad hoc basis for each specific dispute. Normally there are three
members in the panel. Two of them are appointed by the complainant and respondent
respectively, while the third – the chair - has to be agreed by the two parties. If any
party fails to appoint its arbitrator within the time period provided for under the DSM,
the arbitrator appointed by the other party shall be the sole arbitrator. If the parties
cannot agree on the third arbitrator, they may request the Director-General of the
WTO to appoint an arbitrator. If the Director-General is a national of one of the
disputing parties, the Deputy Director-General or the officer next in seniority who is
not a national of either party shall be requested to make the appointment.65
60
China, Art. 1; Korea, Art.1; Japan, Art. 59. China, Art. 10.1; Korea, Art. 7.1; Japan, Art. 66.1. 62
China, Art. 4.6. 63
China, Art. 10.2; Korea, Art. 7.2; Japan, Art. 66.2. 64
China, Art. 10.3; Korea, Art. 7.3; Japan, Art. 66.3. 65
The Chinese DSM also provides that, in case a party to the dispute is a non‐WTO member, the parties shall 61
23 Henry Gao DS in ASEAN External Agreements To ensure the competence of the panel, the DSMs requires panelist to “have expertise
or experience in law, international trade, other matters covered by the covered
agreements or the resolution of disputes arising under international trade agreements”.
Given the dominance of the state in international trade affairs in most ASEAN
countries and CJK, this requirement means that most panelists are probably
government officials. Indeed, this seems to be consistent with the practice of these
countries in the WTO, as they tend to nominate government officials to the indicative
list for panelists. The problem with having government officials as panelists, however,
is that they normally rule along the lines of official national policy. To prevent this
problem, the DSMs also state that a panelist “shall be chosen strictly on the basis of
objectivity, reliability, sound judgment and independence and shall conduct himself or
herself on the same basis throughout the course of the arbitral panel proceedings”. In
addition, the Chair is subject to much stricter rules, i.e., “shall not be a national of any
party to the dispute and shall not have his or her usual place of residence in the
territory of, nor be employed by, any party to the dispute nor have dealt with the
referred matter in any capacity”.
For the purpose of calculating the time periods under the DSM, the date of the
establishment of the panel shall be the date on which the chair is appointed, or the 30th
day after the receipt of the request for establishment of panel in case of a sole-member
panel.
D. Panel Proceedings
Once the panel has been composed, it shall fix the timetable for the panel
proceedings.66 To assist the panel, the DSMs also include annexes which set out the
request the president of the International Court of Justice ( or the Vice President or the officer next in seniority who is not a national of either party if the President happens to be a national of a disputing party) to appoint the chair. See Art. 7.3. As all ASEAN states are now WTO members, this provision is of no use. 66
China, Art. 9.3; Japan, Art. 68.7. 24 Henry Gao DS in ASEAN External Agreements rules and procedures of the panel proceedings in detail. Of course, after consulting the
parties, the panel may adopt additional rules and procedures for specific disputes.67
In general, the panel will hold two substantive meetings with the parties. Before each
substantive meeting, the parties shall submit written submissions to the panel and the
other disputing parties. The first round of submissions starts with the submission from
the complaining party, which usually use this opportunity to substantiate its case by
presenting the facts and making the legal arguments in more detail. This submission
also helps the responding party to understand the factual and legal bases of the
complaint, and to respond to them in its own submission. At the first substantive
meeting, the complainant will present their arguments first, followed by the
respondent. After the meeting, the parties shall submit another round of written
submissions to rebut the arguments made by the other parties. These rebuttals will be
presented at the second substantive meeting of the panel.
The submissions of the parties shall be kept confidential and made available only to
the parties to the dispute and the panel, but there are two exceptions: first, a party is
not precluded from disclosing its own position or the submission to the public; second,
if a party submits a confidential version of a written submission, it shall provide a
non-confidential summary at the request of the other party to the dispute for
disclosure to the public.
In addition to the written submissions and oral statements by the parties, the panel
may also seek information from the parties by posing questions either in writing or
orally.68 Moreover, the panel may seek additional information on the case from any
person or institution.69 In particular, the panel may seek advice on technical or
scientific issues from experts.70 Of course, such experts do not have the power to vote
67
China, Art. 9.5; Korea, Art. 10.1; Japan, Art. 68.2. China, Rule 4; Japan, Art. 67.2. 69
China, Rule 8; Korea, Art. 13.1; Japan, Art. 67.3. 70
China, Rule 8; Korea, Art. 13.2; Japan, Art. 67.3. 68
25 Henry Gao DS in ASEAN External Agreements in respect of any decision to be made by the panel.71 In the interest of fairness, such
information shall also be made available to the parties.
Given the language differences among the parties, the DSMs also explicitly require
the panel proceedings and the documents submitted to the panel shall be in English.72
E. Panel Report
After the substantive meetings, the panel shall meet to deliberate on the case and draft
the report based on the written submissions and oral presentations of the parties, as
well as additional information and expert advice it gathers from other sources. The
deliberations shall be kept confidential73 and the report shall be drafted without the
presence of the parties to the dispute.74 As the function of the panel is to make an
objective assessment of the dispute before it, including an examination of the facts of
the case and the applicability of and conformity with the covered agreements, the
panel report shall address both the factual and legal issues. In general, the report shall
set out findings of facts and law together with reasons, including the applicability of
particular provisions of the covered agreements to the current dispute as well as
whether the parties has failed to carry out its obligations under the current
agreements.75
During deliberation and drafting of panel report, the members of the panel might
disagree on certain issues. In such cases, the panel shall attempt to reach a decision by
consensus or a majority vote if consensus could not be reached.76 In the latter case,
the panelist who is not in the majority might decide to write a dissenting opinion.
However, even in such case, the opinions of individual panelists shall be made on an
71
China, Rule 8; Korea, Art. 13.2; Japan, Art. 67.3. China, Art. 14; Korea, Art. 16. 73
China, Art 9.4. Korea, Rule 21; Japan, Art. 68.10. 74
China, Art 9.6. Korea, Rule 17; Japan, Art. 69.1. 75
Korea, Art. 11.2. 76
China, Art. 8.5. Korea, Rule 20; Japan, Art. 69.7. 72
26 Henry Gao DS in ASEAN External Agreements anonymous basis.77
Following deliberation, the panel shall first issue an interim report or draft award
setting out its findings and conclusions for review by the disputing parties.78 The
parties may comment on both the factual and legal aspects of the report and their
comments shall be addressed by the panel in its final report.
The final report shall be released to the disputing parties within 120 days from the
date of the establishment of the panel.79 The time period may be shortened in case of
urgency or extended if the panel has difficulty in issuing its report in time. The report
shall be made available publicly within 10 days of the release to the disputing
parties.80
To encourage the parties to seek a mutually satisfactory solution to the dispute, the
panel may be suspended at any time before the issuance of the final report with the
agreement of the parties.81 If a solution is found, the panel proceeding may be
terminated.82 On the other hand, if the parties fail to reach a solution, the panel
process may be resumed pursuant to the request of any party.83
F. Implementation, Compensation and Retaliation
If the panel finds against the respondent, the respondent is supposed to bring its
measure into conformity with the panel report. However, the panel report might not
specify how the panel recommendations shall be implemented. Instead, the parties are
supposed to agree on the means to implement the recommendations.84 Moreover, as it
77
China, Art. 9.6; Korea, Rule 17; China, Art. 9.7; Korea, Rule 18; Japan, Art. 69.2. 79
China, Art. 9.8; Korea, Art. 12.2; Japan, Art. 69.6. 80
China, Art. 9.9. Korea, Art. 12.3; Japan, Art. 69.9. 81
China, Art. 11.1; Korea, Art 8.1; Japan, Art. 70.1. 82
China, Art. 11.2; Korea, Art 8.2; Japan, Art. 70.2. 83
China, Art. 11.1; Korea, Art 8.1; Japan, Art. 70.1. 84
China, Art. 12.2; Korea, Art. 14.3. 78
27 Henry Gao DS in ASEAN External Agreements usually takes time for the respondent to change its measures through the domestic
legislative process, the parties shall also agree on the reasonable period of time
necessary for the respondent to implement the recommendations.85 If the parties
cannot reach agreement, they may refer the matter back to the original panel, which
shall assess the consistency of the means proposed by the respondent.86 If the parties
disagree on whether or not the respondent has complied with the panel report, they
may also refer the matter to the original panel for decision.87
If the respondent fails to comply with the panel recommendations within a reasonable
period of time, the complainant may request compensatory adjustment from the
respondent in the form of tariff reductions on other products.88 If the parties cannot
reach agreement on compensation, the parties may request the original panel to
determine the proper level of retaliation.89 As compensation and the suspension of
concessions or benefits are temporary measures available in the absence of
implementation,90 they shall only continue until such time as implementation has
taken place.91
G. Alternative dispute settlement mechanisms
In addition to the normal dispute settlement process mentioned above, the three DSMs
also included some alternative dispute settlement mechanisms. For example, all three
DSMs include conciliation or mediation. In addition, the Korean and Japanese DSMs
also include good offices. They shall only be undertaken if all the parties to the
dispute agree to their use. They may be requested by any party, and they may start or
terminate at any time. They may be pursued concurrently with the proceedings of the
arbitral panel if the parties agree. These proceedings and the positions of the parties
85
China, Art. 12.2; Korea, Art. 14.3. China, Art. 12.2; Korea, Art. 14.4. 87
China, Art. 12.3; Korea, Art 14.5; Japan, Art. 71.4. 88
China, Art. 13.2; Korea, Art 15.2; Japan, Art. 71.3. 89
China, Art. 13.3; Korea, Art 15.3; Japan, Art. 71.3. 90
China, Art. 13.1; Korea, Art 15.1; Japan, Art. 72.1. 91
China, Art. 13.6; Korea, Art 15.6. 86
28 Henry Gao DS in ASEAN External Agreements during such proceedings shall be confidential and without prejudice to the rights of
the parties in any other proceedings.
The DSMs do not provide detailed rules on how good offices, conciliation or
mediation should work. As these provisions are copied from Article 5 of the DSU, the
parties might wish to refer to the explanations provided by the Director-General of the
WTO,
“Good offices shall consist primarily of providing physical support and Secretariat
assistance to the parties. Conciliation shall consist of good offices plus the further
involvement of the Director-General in promoting discussions and negotiations
between the parties. Mediation shall consist of conciliation plus the possibility of the
Director-General to propose solutions to the parties.”92
2. Differences among the DSMs
As the Chinese and Korean DSMs take the form of stand-alone agreements while the
Japanese DSM is a chapter in its FTA, one might think that the Japanese DSM is less
detailed or legalistic than the other two. However, this is not the case as the provisions
in the Japanese DSM are very similar to those in the other two.
At the same time, there are still some important differences among the three
mechanisms. First, the Korean DSM is much more detailed than the Chinese and
Japanese DSMs. For example, while the establishment of the panel does not need the
approval of all parties under all three DSMs, only the Korean DSM explicitly state
that the panel shall be established automatically upon delivery of the request to
establish a panel while the other two DSMs are silent on the issue.93 Similarly, while
both the Chinese and Korean DSM provides that a new panel shall be established if
92
Article 5 of the Dispute Settlement Understanding: Communication from the Director‐General, WT/DSB/25, 17 July 2001, Attachment B: Procedures for Requesting Action Pursuant to Article 5 of the DSU, footnote 15. 93
Korea, Art. 5.3. 29 Henry Gao DS in ASEAN External Agreements the original panel is unable to conduct its work, only the Korean DSM provides that
the new panel shall apply the same time frame as the original panel.94 Second, the
Korean DSM is more legalistic by providing more explicit guidelines on how to
enforce certain obligations. For example, even if the respondent fails to implement the
panel recommendations, both the Chinese and Japanese DSMs require the
authorization from the panel before the complainant may retaliate.95 In contrast, the
Korean DSM states that the complainant may retaliate by simply providing a written
notice of retaliation to the other parties.96 While the same provision also allows the
respondent to request a panel to rule on the legitimacy of the retaliation, the Korean
rule provides much stronger incentive for the respondent to implement the panel
recommendations as the burden of initiating the retaliation panel procedure is placed
on the respondent rather than the complainant.
3. Comparison with the WTO Dispute Settlement Procedure
In these dispute settlement procedures, we can find many influences from the WTO
DSU and EDSM. For example, the provisions on the terms of reference of the arbitral
panel are copied verbatim from the WTO. Similarly, the provisions on compensation
and suspension of concessions are also originated from the DSU. Given the maturity
of the WTO DSM, it is no wonder that it serve as a good model for the dispute
settlement provisions in these agreements.
At the same time, some of the DSU provisions seem to have been blindly copied into
these agreements with little consideration on their suitability. One example is the
provisions on interim report. The rationale for having such a step in the WTO DSM is
probably to provide additional time for the parties to review the findings of the panel
and decide whether or not to lodge an appeal. Without such a mechanism, the parties
might not have sufficient time to digest the panel findings and make an intelligent
94
Compare China, Art. 7.7 and Korea Art. 6.7. See China, Art. 13.3; Japan, Art. 72.2 & 71.4. 96
Korea, Art. 15.3. 95
30 Henry Gao DS in ASEAN External Agreements decision within the 60-day period from the issuance of the final panel report and the
submission of notice of appeal. As the CJK economic agreements do not provide for
the possibility of appeal, it is unclear what useful purpose such a mechanism would
serve. Even worse, the provisions on the interim report could lead to two
highly-undesirable consequences: first, it could result in the leakage of the interim
report. While this frequently happens in the WTO,97 it does not cause problems as the
panelists are usually not nationals of the disputing parties.98 In contrast, as the two
non-chairing panelists in cases brought under the CJK DSMs are appointed by the two
disputing parties, they are very likely to be nationals of the parties, sometimes even
the officials of these parties. Leaking the report will subject them to political pressure
at home through their national governments, and this could undermine the integrity of
the panel. Second, the parties could use the interim review to request a wholesale
rewrite of the panel report. This has not happened in the WTO so far, because the
DSU only allows the parties to request the panel to “review precise aspects” in the
interim report.99 In its report in the Australian-Salmon case, the WTO Appellate Body
ruled that this means that the parties cannot request the panel to make sweeping
changes to the report.100 Curiously, this language has not been copied into the CJK
agreements. While this might simply be the result of an oversight in drafting, it could
well open up the floodgate of abuse by the parties to these agreements.
Another example is the provisions on suspension of benefits. As a form of self-help,
this mechanism might not be useful for everyone. As explained by Valerie Hughes, if
a developing country imposes high tariffs on imports from a non-complying
developed country, the level of trade affected might be too small to cause hardship to
the developed country, while the developing country itself might suffer due to the
97
Valerie Hughes, the WTO Dispute Settlement System: A Success Story, in Julio Lacarte and Jaime Granados eds., Inter‐Governmental Trade Dispute Settlement: Multilateral and Regional Approaches, Cameron May, 2004, at p.115. 98
This is prohibited by Article 8.3 of the DSU. 99
See Hughes at 115. 100
See Hughes at 115. See also the AB Report in Australia‐Salmon. 31 Henry Gao DS in ASEAN External Agreements higher tariffs.101 Thus, such a measure has not been frequently used in the WTO. The
same is true in the ASEAN-CJK context. CJK are much bigger trade powers
compared with most ASEAN member countries, even though Korea and China are
both developing countries. Thus, if CJK fails to implement any panel decision, the
winning ASEAN member countries might not be able to effectively retaliate, making
it difficult to secure compliance. Furthermore, under the WTO, it is possible for the
winning Member to suspend concessions in other sectors, especially services trade
and TRIPS. Under the ASEAN-CJK agreements, however, retaliation is practically
limited to goods trade as there are no substantial concessions on services and TRIPS.
This further limits the utility of suspension of concessions. There are two possible
ways to solve the problem: first if the introduction of collective retaliation, which
allows all ASEAN members to retaliate against their bigger neighbors from the north.
Second is monetary compensation, whereby the winning party does not have to worry
about any potential back-firing of retaliatory measures. However, as there are no
precedents from the WTO, ASEAN might face substantial resistance from CJK in
introducing such innovative mechanisms in the agreements.
Of course, this does not mean that the drafters of the CJK agreements simply copied
the DSU without making any changes. To the contrary, a few provisions have been
either deleted or modified by the CJK agreements. The most conspicuous among them
is the absence of provision on an appellate mechanism in the CJK agreements. This
makes sense as the CJK agreements are unlikely to generate significant number of
disputes to justify the establishment of a standing appellate tribunal.
Another change made by the CJK agreements is the number of panelists. Under the
DSU, each panel is usually composed of three panelists but the number may be
expanded to five. 102 In contrast, while the CJK agreements also set the default
panelist number at three, the panel could also include only one panelist. Such
101
102
See Hughes at 135. See also Lacarte at 60. Art. 5.8. 32 Henry Gao DS in ASEAN External Agreements variation reflects the different procedure for the appointment of panelists: Under the
DSU, the panelists are proposed by the Secretariat and agreed by the disputing parties
or appointed by the DG. Under the CJK agreements, however, one panelist is named
by each individual disputing party, with the third one to be agreed by the parties. Thus,
under the CJK agreements, the respondent could try to stalk the process by refusing to
name its own panelists. To prevent this, the CJK agreements state that the panelist
appointed by the complainant shall be the sole panelist if the respondent fails to
appoint someone within the deadline. Such problem would not arise under the DSU,
where all panelists have to be agreed by the parties and the DG will appoint the three
members if the parties fail to agree, making it impossible to have only one panelist.
The third change is on language, where the CJK agreements explicitly state that
English shall be the language used in the proceedings. This is an improvement over
the DSU, where the requirement that the panel report shall be circulated only when it
is available in all three official languages can lead to lengthy delays.103 As there is no
common language between the CJK countries and ASEAN members, the use of
English – a common second language of all countries - can help to make it easier to
conduct the proceedings.
The last change is on costs, where the CJK agreements make the following
arrangements:
i.
Each party shall bear the costs of its appointed arbitrator;
ii.
The costs of the Chair shall be born in equal parts by the parties to the
dispute;
iii.
Other expenses of the panel proceedings shall be born in equal shares by
the parties; and
iv.
Each party shall bear its own costs of participating in the dispute,
including the legal costs.
103
Hughes, 116. 33 Henry Gao DS in ASEAN External Agreements With the exception of the last point, the cost arrangement under the CJK agreements
is completely different from that of the WTO, where costs of the panel and
proceedings are born by the WTO. Of course, this does not mean that the disputing
parties do not have to pay anything at all. As the WTO dispute settlement mechanism
is funded by the general operating budget of the WTO, each WTO Member, including
the disputing parties, also indirectly contribute to the operating expenses of the DSM
through its payment of the membership fee. Nonetheless, as the payment is not
directly associated with the dispute settlement activities, there is a potential for
free-rider problem. In practice, however, this has not turned to be a major problem for
the WTO, as most WTO cases are usually brought by or against the Members with
bigger trade volumes. In the CJK agreements, however, things are different. First of
all, the members do not pay any membership fees. Furthermore, there is very little
formal institutional structure handling the disputes. Thus, it makes sense to have the
disputing parties contribute directly to the panel expenses.
IV.
Concluding Thoughts and Reflections
As we can see from the discussions above, ASEAN has taken some different
approaches in its external agreements with CJK countries depending on the subject
matter. In general, the economic agreements feature dispute settlement mechanisms
that are highly formal and legalistic, while the non-economic agreements tend to favor
mechanisms that are rather informal and non-legalistic. In the view of the author, the
main reasons for the different treatments are the following:
First, the natures of the legal obligations are different. With detailed schedules for
tariff reductions, the economic agreements establish obligations that are easily
quantifiable. In turn, it is much easier to detect any violation of such agreements. In
contrast, the political agreements usually do not contain such clear obligations and the
enforcement depends mostly on the best endeavor of the member countries. Thus,
they are ill-fitted with legalistic dispute settlement system, which are more suitable to
34 Henry Gao DS in ASEAN External Agreements agreements with clearly-defined obligations, such as the economic agreements.
Second, by reducing tariffs and other trade barriers, economic agreements can provide
more market access opportunities and tangible economic gains. The prospect of
tangible benefits can help to mobilize the domestic constituencies to support the
negotiation and implementation of economic agreements. Moreover, the economic
gains also help to overcome the resistance against more legalistic dispute settlement
mechanism. In contrast, the political agreements do not provide tangible benefits and
thus are unable to justify a legalistic dispute settlement system.
Third, the different choices also reflect the global trend. Among the international
agreements around the world, economic agreements tend to have more legalistic
dispute settlement mechanisms, while the non-economic agreements (with limited
exceptions such as the EU) tend to have rather weak or no dispute settlement
mechanism at all. Among the dispute settlement mechanisms in economic agreements,
the most successful example is the WTO dispute settlement mechanism. The WTO
dispute settlement mechanism provides a good model for other economic agreements,
as is evidenced by the similarities between the dispute settlement mechanisms under
ASEAN’s agreements with the CJK countries and the WTO mechanism.
In practice, however, the difference in the choices on dispute settlement mechanism
between the economic and non-economic agreements might not matter much. After all,
even though it is highly legalistic, the dispute settlement mechanisms in the CJK
economic agreements have never been used. In a way, this is not surprising, as dispute
settlement mechanisms in most free trade agreements (hereafter “FTA”) around the
world have rarely been used. Instead, most countries prefer to use the WTO dispute
settlement mechanism to handle their disputes with another WTO Member even if
both are members of an FTA with a well-designed dispute settlement mechanism. The
main reason for such preference is that the WTO dispute settlement mechanism has
developed rich jurisprudence on trade issues, thus is more predictable and reliable.
35 Henry Gao DS in ASEAN External Agreements Moreover, as the membership of the WTO is much bigger than any FTAs, a ruling
obtained through the WTO dispute settlement system can set the precedent in similar
cases and deter other WTO members from adopting similar trade barriers. Thus, the
difference in the dispute settlement mechanisms of the economic and non-economic
agreements might be of more theoretical rather than practical relevance.
Moreover, the divergence in the approaches taken on economic and non-economic
agreements might not always be the case for the following reasons:
First, in recent years, ASEAN countries seem to be moving towards a more legalistic
approach even for internal non-economic issues. The best example for this is the 2010
Protocol to the ASEAN Charter on Dispute Settlement Mechanisms (Hanoi Protocol),
which provides for rather formalized and legalistic approach even for non-economic
disputes. According to some commentator, it is based on the 2004 ASEAN protocol
on Enhanced Dispute Settlement Mechanism (the Vientiane Protocol), which in turn is
based on the DSU of the WTO.104 The author finds this view hard to agree. It is true
that the Hanoi Protocol does indeed provide for consultations within a fixed
timeframe, failing which the complainant may request the appointment of an arbitral
tribunal.105 However, the decision-making rule for the establishment of tribunal/panel
is very different under the two instruments. According to the Hanoi Protocol, the
arbitral tribunal will only be established if the responding party explicitly agrees to
the establishment of tribunal. 106 In contrast, the Vientiane Protocol adopts the
reverse/negative consensus rule as under the WTO DSU, which means that the panel
shall be established unless the Senior Economic Officers Meeting (SEOM) decides by
consensus not to establish a panel.107 Nonetheless, the Hanoi Protocol is still a big
improvement over the rudimentary rules on dispute settlement under the TAC and the
2007 ASEAN Charter, as it explicitly provides for the possibility of arbitration by a
104
See Walter Woon, at p.9. Woon, at p.9. 106
Hanoi Protocol, Art. 8.3‐4. 107
Vientiane Protocol, Art. 5.1. 105
36 Henry Gao DS in ASEAN External Agreements court-like tribunal. Moreover, even though the establishment of the arbitral tribunal is
subject to the consent of the responding party, no consent from the parties is required
for the adoption of the arbitral award. Instead, once issued, the award of the arbitral
tribunal shall be final and binding on the parties to the dispute108 and the parties are
explicitly required to comply with the award.109 In this respect, the Hanoi Protocol is
even more legalistic than the Vientiane Protocl or the WTO DSU, as the panel reports
under these two dispute settlement mechanisms still require the approval of the
political bodies,110 even though one may argue such approval is only a matter of
formality because they follow the negative consensus rule.
As ASEAN adopts a more legalistic approach on dispute settlement on non-economic
issues at the internal level, will it change its approach to dispute settlement
mechanisms in non-economic agreements with external parties as well? In the view of
the author, ASEAN should seriously consider adopting more legalistic dispute
settlement mechanisms in its external non-economic agreements as well, especially in
its agreements with the CJK countries. As CJK countries are much bigger in size and
power, they could potentially abuse their power when they are engaged in disputes
with ASEAN countries. Indeed, some might argue that the way China handled its
recent spats with the Philippines and Vietnam regarding the ownership of certain
islands in South China Sea is an illustration of such risk. If the disputes were to be
handled by third-party adjudicatory mechanism, such risk could be minimized. Of
course, as adopting such mechanism requires the consent of both parties to a dispute,
ASEAN still have to persuade CJK countries that a legalistic dispute settlement
mechanism is in their interest as well. Given the historical antipathy towards
international tribunals by CJK countries, the ASEAN countries would need some time
to persuade the CJK countries to change their mindset.
Second, as ASEAN is seeking to merge its economic agreements with CJK countries
108
Hanoi Protocol, Art. 15.1. Hanoi Protocol, Art. 15.1 & 16.1. 110
See Vientiane Protocol, Art. 9. 109
37 Henry Gao DS in ASEAN External Agreements under the Regional Comprehensive Economic Partnership Agreement (RCEP),111 the
separate dispute settlement mechanisms under the individual agreements will need to
be consolidated as well. Under the current agreements, China, Japan and Korea each
has a separate dispute settlement mechanism with ASEAN on a bilateral basis. When
one of the CJK countries has a dispute with the ASEAN countries, the other two CJK
countries may not join the dispute settlement proceeding as co-complaints or third
parties, but the other ASEAN countries may do so. In contrast, as the RCEP is a
regional initiative, any of ASEAN’s external partners will be able to join the dispute
between an ASEAN country and another external partner. This will change the
dynamics of the dispute settlement process and make individual ASEAN countries
subject to more political pressures from external partners when they are involved in
trade disputes. To solve the problem, the author thinks that ASEAN countries should
use the opportunity of negotiating the RCEP to further strengthen the existing dispute
settlement mechanism by making some structural changes. For example, ASEAN
countries might consider changing the rule that each party nominates one panelist in a
dispute as this would politicize the dispute settlement process. Instead, the panelists
shall be chosen from RCEP member countries that are not parties to the dispute. For
this purpose, ASEAN countries might consider establishing an indicative list of
panelists, or better still, setting up a permanent panel body, which shall be composed
of one panelist nominated by each country in the RCEP. When a dispute arises, three
panelists who are not nationals of the parties to the dispute shall be assigned to
adjudicate the case on a random basis. This will ensure that panelists from ASEAN
countries get more experience in dispute settlement, and will help to establish a
rule-based system for the RCEP. Also, under the current dispute settlement
mechanisms, the costs of panel proceedings shall be split between the disputing
parties. This might prevent smaller and poorer ASEAN countries from participating in
dispute settlement proceedings as they do not have resources comparable to the
111
ASEAN Framework for Regional Comprehensive Economic Partnership, adopted by Heads of State/Government at the 19th ASEAN Summit in Bali, Indonesia on 20 November 2012, available at http://www.asean.org/asean/asean‐summit/item/asean‐framework‐for‐regional‐comprehensive‐economic‐partn
ership. 38 Henry Gao DS in ASEAN External Agreements non-ASEAN partners. ASEAN countries should propose changing it to the WTO
model, i.e., a dispute settlement mechanism that is free for disputing parties and
supported by the membership fees of member countries based on their respective
trade volumes. This will help to alleviate the cost concern for ASEAN members and
make them more willing to participate in dispute settlement proceedings.
Of course, like any other dispute settlement mechanism, the success of the dispute
settlement mechanisms in ASEAN’s agreements with its external partners ultimately
depends on the political will of ASEAN countries and its partner countries. However,
other things being equal, a well-designed dispute settlement mechanism could help to
de-politicize trade disputes and foster the culture of respect for the international rule
of law among ASEAN and its partners. In the long term, the international rule of law
provides the best way for ASEAN to achieve its aim of “maintain[ing] the centrality
and proactive role of ASEAN as the primary driving force in its relations and
cooperation with its external partners in a regional architecture that is open,
transparent, and inclusive”.112
112
ASEAN Charter, Article 1 section 15. 39 Henry Gao DS in ASEAN External Agreements Annex: List of dispute settlement provisions in ASEAN’s external agreements
with China, Japan and Korea
Country Agreement Articles on dispute settlement
China 2002 Declaration on the Conduct of Parties in Articles 4‐5 the South China Sea 2002 Framework Comprehensive Agreement Economic on Art. 11 Co‐Operation between ASEAN and the People's Republic of China 2004 Agreement on Dispute Settlement Entire agreement Mechanism of the Framework Agreement on Comprehensive Economic Co‐Operation between the Association of Southeast Asian Nations and the People’s Republic of China 2004 Memorandum of Understanding Art. 8 between the Governments of the Member Countries of the ASEAN and the Government of the People’s Republic of China on Cooperation in the Field of Non‐traditional Security Issues 2004 Memorandum of Understanding Art VII． between the Governments of the Member Countries of the Association of Southeast Asian Nations and the Government of the People’s Republic of China on Transport Cooperation 2006 Protocol to Amend the Agreement on Art. 19 Trade in Goods of the Framework Agreement 40 Henry Gao DS in ASEAN External Agreements on Comprehensive Economic Cooperation between the Association of Southeast Asian Nations and the People’s Republic of China 2007 Agreement on Maritime Transport Art. 12 between the Governments of the Member Countries of the Association of Southeast Asian Nations and the Government of the People’s Republic of China 2007 Agreement on Trade in Services of the Art. 30 Framework Agreement on Comprehensive Economic Cooperation between the Association of Southeast Asian Nations and the People’s Republic of China 2007 Memorandum of Understanding Art. IX between the Association of Southeast Asian Nations (ASEAN) Secretariat and the Ministry of Agriculture of the People’s Republic of China on Agricultural Cooperation 2007 Memorandum of Understanding Art. IX between the Association of Southeast Asian Nations and the Government of the People’s Republic of China on Strengthening Sanitary and Phytosanitary Cooperation 2009 Memorandum of Understanding on the
Art. XIX Establishing the ASEAN‐China Centre between the Governments of the Member States of the Association of Southeast Asian Nations and the Government of the People’s Republic of China 41 Henry Gao 2009 Memorandum of DS in ASEAN External Agreements Understanding Art. 8 between the Governments of the Member States of the Association of Southeast Asian Nations and the Government of the People’s Republic of China on Cooperation in the Field of Intellectual Property 2009 Memorandum of Understanding Art. 8 between the Association of Southeast Asian Nations (ASEAN) and the Government of the People’s Republic of China on Cooperation in the Field of Non‐traditional Security Issues 2009 Memorandum of Understanding Art. 8 between The Governments of Member States of the Association of Southeast Asian Nations and the Government of the People’s Republic of China on Strengthening Cooperation in the Field of Standards, Technical Regulations and Conformity Assessment 2010 Air Transport Agreement between the Art. 21 Governments of the Association of Southeast Asian Nations and the Government of the People’s Republic of China 2010 Memorandum of Understanding Art. X between the Governments of the Member States of the Association of Southeast Asian Nations and the Government of the People’s Republic of China on Maritime Consultation Mechanism 42 Henry Gao Japan DS in ASEAN External Agreements 1976 Treaty of Amity and Cooperation in Chapter IV Southeast Asia 1980 Agreement Establishing the ASEAN Art. 19 Promotion Centre for Trade, Investment and Tourism 2008 Agreement on Comprehensive Chapter 9 Economic Partnership among Member States of the Association of Southeast Asian Nations and Japan Korea 2005 Framework Comprehensive Agreement Economic on Art. 5.1 Cooperation among the Governments of the Member Countries of ASEAN and the Republic of Korea 2005 Agreement on Dispute Settlement Entire agreement Mechanism under the Framework Agreement on Comprehensive Economic Cooperation among the Governments of the Member Countries of ASEAN and the Republic of Korea 2006 Agreement on Trade in Goods under the Art. 19 Framework Agreement on Comprehensive Economic Cooperation among the Governments of the Member Countries of the Association of Southeast Asian Nations and the Republic of Korea 2007 Memorandum of Understanding on Art. 20 Establishing the ASEAN‐Korea Centre between the Member Countries of the 43 Henry Gao DS in ASEAN External Agreements Association of Southeast Asian Nations and the Republic of Korea 2007 Agreement on Trade in Services under Art. 29 the Framework Comprehensive Agreement Economic on Cooperation among the Governments of the Member Countries of the Association of Southeast Asian Nations and the Republic of Korea 2009 Agreement on Investment under the Art. 18‐19 Framework Agreement on Comprehensive Economic Cooperation among the Governments of the Member Countries of the Association of Southeast Asian Nations and the Republic of Korea ASEAN+3 East NA Asia NA Summit 44