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From Treaty-Making to Treaty-Breaking: Models for ASEAN External Trade Agreements [Pehme köide]

(Universiteit van Amsterdam), , (Universiteit van Amsterdam)
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From Treaty-Making to Treaty-Breaking: Models for ASEAN External Trade AgreementsSuurem pilt
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From Treaty-Making to Treaty-Breaking is the first high-level analysis of ASEAN's external trade agreements with non-ASEAN states. It clearly sets out the intended, and unintended, consequences of ASEAN's prevailing method of treaty making, with suggested guidelines for the future. The book begins by asking whether ASEAN trade agreements follow worldwide trends in the substantive content of such agreements. It raises questions such as: to what extent is it possible to continue concluding trade agreements through individual member states ; what are the legal consequences - from negotiation and conclusion (treaty-making) through to possible breach of the agreements (treaty-breaking)?; should ASEAN resort to mixed treaty-making? This study does not seek to give a definitive answer to these questions, rather it opens up the topic to readers by suggesting different possible models for ASEAN trade agreements. This thought-provoking book will appeal to anyone interested in trade negotiations and trade agreements, particularly in Asia.

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A unique analysis of ASEAN's method of concluding external trade agreements with non-ASEAN states, with clear alternatives for the future.
General editors' preface xi
List of abbreviations
xvii
1 Introduction
1(19)
1.1 Why this study?
1(2)
1.2 Background and context
3(4)
1.3 The two objectives of the study
7(4)
1.4 Summary of the external relations powers of ASEAN
11(3)
1.5 Observed and projected trends in ASEAN external relations powers
14(4)
1.5.1 Substantive content of ASEAN agreements
15(1)
1.5.2 Developing different models for ASEAN international agreements
16(1)
1.5.3 Rules on dispute settlement in agreements between ASEAN and third states
17(1)
1.6 Conclusions to be drawn from the study
18(2)
2 Substantive components of an ASEAN trade agreement from an external perspective
20(67)
2.1 Introduction
20(2)
2.2 A methodology for treating soft law in PTAs
22(6)
2.3 The subject areas and agreements identified for examination
28(10)
2.3.1 Introduction
28(3)
2.3.2 Subject areas considered
31(4)
2.3.3 Trade agreements chosen for analysis
35(3)
2.4 Regulatory subject areas in selected trade agreements
38(46)
2.4.1 Introduction
38(1)
2.4.2 General regulatory cooperation provisions
39(3)
2.4.3 Intellectual property (IP rights)
42(7)
2.4.4 Competition law and policy
49(5)
2.4.5 Public procurement
54(3)
2.4.6 Services and investment
57(5)
2.4.7 Product and food safety standards (TBT- and SPS-type measures)
62(5)
2.4.8 Conclusion: regulatory subject areas
67(4)
2.4.9 Customs procedures and trade defence instruments
71(5)
2.4.10 Anti-dumping provisions
76(4)
2.4.11 Safeguards (emergency measures)
80(3)
2.4.12 Conclusion: trade measures
83(1)
2.5
Chapter conclusion
84(3)
3 Moving forward: different institutional models for ASEAN's external trade agreements
87(65)
3.1 Introduction
87(4)
3.2 ASEAN member state agreements: ASEAN member states as parties without ASEAN
91(28)
3.2.1 Plurilateral ASEAN member state agreements: every party owes and is owed obligations
92(7)
3.2.2 Combined ASEAN member state agreements: rights and obligations between member states and dialogue partners
99(4)
3.2.3 Common ASEAN member state agreements: an exercise of collective competence by member states
103(5)
3.2.4 Demi-common ASEAN member state agreements
108(2)
3.2.5 Enabling the enforcement of ASEAN's role in ASEAN member state agreements
110(3)
3.2.6 Alternative approaches to the ASEAN minus X formula
113(6)
3.3 ASEAN alone agreements: ASEAN as party without its member states
119(7)
3.3.1 Parties to the agreement
119(4)
3.3.2 ASEAN's role
123(2)
3.3.3 Entry into force
125(1)
3.3.4 Who negotiates
125(1)
3.4 Mixed ASEAN agreements: ASEAN member states as parties together with ASEAN
126(23)
3.4.1 The concept of mixed agreements
127(9)
3.4.2 Plurilateral mixed ASEAN agreements: every party owes and is owed obligations
136(4)
3.4.3 Combined mixed ASEAN agreements: rights and obligations between ASEAN and its member states, of the one part, and dialogue partners, of the other part
140(1)
3.4.4 Common mixed ASEAN agreements: an exercise of collective competence by ASEAN and its member states
141(6)
3.4.5 Demi-common mixed ASEAN agreements
147(2)
3.5
Chapter conclusion
149(3)
4 The rules on dispute settlement in agreements between ASEAN member states and third states: a critical inventory
152(45)
4.1 Introduction
152(6)
4.2 Preliminary issues
158(14)
4.2.1 Who can be a party to a dispute settlement procedure?
158(4)
4.2.2 Which (parts of) agreements are covered?
162(2)
4.2.3 Causes of action
164(3)
4.2.4 Who or which entities can trigger state responsibility?
167(2)
4.2.5 Relation with other agreements and other dispute settlement organs
169(3)
4.3 Steps leading up to the arbitral procedures
172(4)
4.3.1 Liaison office
172(1)
4.3.2 Consultations and alternative dispute settlement
173(3)
4.4 The arbitral procedure itself
176(9)
4.4.1 Establishment and composition of panels/requirements for panel members
176(3)
4.4.2 Position of third parties
179(3)
4.4.3 Functions and proceedings of arbitral tribunals
182(2)
4.4.4 Interim and final reports
184(1)
4.5 Implementation and compliance
185(4)
4.5.1 Implementation of the final report
185(2)
4.5.2 Monitoring
187(2)
4.6 Conclusion
189(8)
5 From treaty-making to treaty-breaking
197(19)
5.1 Introduction
197(1)
5.2 Substantive regulatory and trade provisions
198(7)
5.2.1 Obligatory provisions for regulatory and trade subjects
198(4)
5.2.2 Cooperative instruments for regulatory and trade subjects
202(3)
5.3 The dispute settlement provisions
205(7)
5.3.1 Introduction
205(2)
5.3.2 The three suggested solutions and the consequences of their application
207(5)
5.4 Who should be the parties to ASEAN's international trade agreements?
212(4)
Executive summary 216(8)
Appendices 224(5)
Bibliography 229(5)
Index 234
Pieter Jan Kuijper is Professor of the Law of International Organizations in the Amsterdam Centre of International Law (ACIL), University of Amsterdam. He previously worked for the European Commission, most recently as Principal Legal Advisor and Director of the External Relations and Trade Law team of the Commission Legal Service. He has also been Director of the Legal Affairs Division of the WTO Secretariat (19992002). His publications have concentrated on EU law, WTO law and general international law and the relationship between them. James H. Mathis is an associate professor in the Department of International Law and research fellow in the Amsterdam Center for International Law (ACIL), University of Amsterdam. His research interests include international trade law and the WTO, domestic regulation issues in regional trade agreements, transatlantic trade issues, and regional/international competition policies. James is the managing editor of Legal Issues of Economic Integration, serves on the advisory board for the Trade Law Centre of Southern Africa (TRALAC), and is an occasional advisor on trade and competition issues for UNCTAD, Geneva. Natalie Y. Morris-Sharma is Counsellor (Legal) at the Permanent Mission of the Republic of Singapore to the UN in New York, and Deputy Senior State Counsel with the International Affairs Division of Singapore's Attorney-General's Chambers. Natalie is Singapore's representative on the Sixth Committee, which is the primary forum for the consideration of legal questions in the UN General Assembly. She also advises the Government of Singapore on public international law issues, including regional trade and investment agreements involving ASEAN and EU.