The development of the ASEAN trade dispute settlement mechanism : from diplomacy to legalism

Abstract

In the late twentieth century international trade moved from a political multi-polar system based on the nation-state to a system featuring unified regional trading regimes. An inevitable feature of increased cooperation through bilateral, regional and international arrangements is the emergence of disputes over the interpretation and implementation of the agreed upon commitments. Accordingly, reliable mechanisms for the settlement of trade related disputes have become necessary to ensure the effective and continued functioning of these arrangements. Over the years these dispute settlement mechanisms have evolved from the relatively simple, diplomacy based structures called for in the GATT, to the detailed, legalistic, adjudication based mechanism found in the WTO. Bilateral and regional initiatives, such as NAFTA and MERCOSUR, as well as the EU, have similarly adopted dispute settlement mechanisms which adopt, in varying degrees, legalistic adjudicatory processes. Since 1967 ASEAN has spearheaded the creation of a regional trading bloc in the South East Asian region. As in other trading blocs, this has inevitable led to the need to develop effective and workable dispute settlement mechanisms. This thesis examines the development of trade dispute settlement mechanisms in ASEAN tracing its development from a model based on pragmatic diplomacy to a legalistic adjudicatory system with particular reference to the ASEAN context. It examines the extent to which the ASEAN context has influenced the content and the adoption of trade dispute settlement mechanisms in the region, as well as the extent to which the recently adopted 2004 Enhanced Protocol on Dispute Settlement can adequately address trade disputes in the region while remaining sensitive and responsive to the ASEAN context. Based on a comparative examination of dispute settlement mechanisms in other trade agreements, a range of key procedural issues are identified and examined with a view to identifying the prospects and challenges which ASEAN faces in the implementation of its dispute settlement mechanism. The thesis analyses the prospects and challenges of implementation the 2004 Enhanced Protocol on DSM.