ASEAN on the Rule of Law and its safeguards. The ALA President asserted
that this principle has assumed significance as it relates to China’s Belt and
Road Initiatives and ASEAN’s current program for economic and security
integration. The ALA Secretary General also read her paper on China-ASEAN
Legal Talents Training Mechanism and Jurist Networking, highlighting the
manpowerhuman resources of ALA and the activities to be undertaken by the
ALA Institute on Harmonization of Laws.
Attendance in the ASEAN Secretariat Tenth Coordinating Conference for the
ASEAN Political Security Community (10th ASCCO), 22 March 2018, Jakarta,
Indonesia
The ALA Secretary General attended the 10th coordinating conference
organized by the ASEAN Secretariat for the ASEAN Political Security
Community (APSC). Dr. Hoang Anh Tuan, Deputy Secretary General of
ASEAN for ASEAN Political Security Community delivered the opening
remarks. The priorities of Singapore, as ASEAN Chair for 2018 were discussed.
The ASEAN Secretariat gave a briefing on key developments in the
implementation of the APSC. This was aimed at:
(a) establishing a rules-based, people-oriented, people-centered community,
and a peaceful, secure and stable region,
(b) ASEAN centrality in a dynamic and outward-looking region, and
(c) strengthened strengthening ASEAN institutional capacity and presence.
The ALA Secretary General was requested to give an update on ALA’s
activities.
Participation in the Consultation on a Rules-Based ASEAN: Process of Forging
Legal Instruments 17 May 2018, Singapore
The ALA Secretary General participated in the Consultation on a Rules-Based
ASEAN: Process of Forging Legal Instruments sponsored by the ASEAN
Secretariat, USAID, S. Rajaratnamn School of International Studies, German
Cooperation and GIZ. The Secretary General was a panelist on the topic
“Towards People-Centred, People-Oriented Community: Stakeholdership in
Implementing Agreements” which sought to examine to whatthe extent and
through what mechanisms the different groups in societysocietal groups, such
as the private sector, professional groups and, think- tanks, can participate in
monitoring the implementation of ASEAN legal instruments.
Address at the Forum on the Belt and Road Initiative (Legal Cooperation 2-3
July 2018, Beijing, People’s Republic of China
8
The ALA President and Mr. Zhang Mingqi, China Law Society Executive
official and Member, Standing Committee, People's Congress both addressed
the Forum on the Belt and Road Initiative (“BRI”) Legal Cooperation Various
legal experts from Europe, Asia, US and China also joined the Forum.
In his address, the ALA President, who is a member of the Philippine National
Committee, discussed legal issues on the One Belt One Road maritime route,
advocated the early implementation of the Framework agreement for a Code of
Conduct on the South China Sea signed by the ASEAN and China in 2017 at
the ASEAN 50th Anniversary Summit in Manila.
ALA Institute for Harmonization of Laws Special Meeting, 8 June 2018, Siem
Reap, Cambodia
To iImplementing the mandate of the ALA Governing Council at the meeting
held in Manila on 25 October 2017, ALA held a special meeting in Cambodia
on 8 June 2018, to discuss thresh out the details of the proposed ALA Institute
for Harmonization of Laws.
Publication of Newsletter; Submission of Publications to ASEAN Secretariat
The ALA President and ALA Secretary General have published four (4) issues
of the ALA Newsletter. Copies of the newsletters as well as a coffee table book
entitled “ALA at the Crossroads: Engaging the Future” have been distributed to
the members and submitted to the ASEAN Secretariat as part of the
requirements for accredited entities.
X. REPORT ON THE ALA CAMBODIA SPECIAL MEETING ON THE
ASEAN LAW INSTITUTE
Atty. Andre C. Palacios reported on the matters that were discussed during the
ALA Special Meeting on 7-9 June 2018 in Siem Reap, hosted by the ALA
National Committee of Cambodia.
At the ALA Special Meeting in Cambodia on 8 June 2018, the attendees
deliberated over thresh out the details of the proposed ALA Institute for
Harmonization of Laws (the “Law Institute”), as mandated by the ALA
Governing Council during its meeting held in Manila on 25 October 2017.
The ALA officers and ALA National Committee representatives who attended
the said Special Meeting namely, Atty. Avelino V. Cruz, ALA President; Atty.
Regina P. Geraldez, ALA Secretary General; Atty. Suon Visal, President, ALA
Cambodia; Atty. Prom Vicheth Akara, Deputy President, ALA Cambodia; Mr.
Normin Pakpahan, Head of Delegation, ALA Indonesia; Mr. T. Tharumarajah,
Head of Delegation, ALA Malaysia; Dr. Swe Swe Aung, Head of Delegation,
ALA Myanmar; Atty. Andre Palacios, Head of Delegation, ALA Philippines;
9
Atty. Patricia Ann Prodigalidad, Delegate, ALA Philippines; Justice Lee Seiu
Kin, Vice Chairman, ALA Singapore; Mr. Ramu Miyapan, Delegate, ALA
Singapore; Judge Dr. Watchara Neitivanich, Head of Delegation, ALA
Thailand; and Judge Dr. Sutatip Yuthayotin, Delegate, ALA Thailand,
recommend for adoption and approval by the ALA Governing Council the
following matters relating to the Law Institute:
1. Planned Objectives such as
(a) Support the ALA objectives in the ALA Constitution of promoting the
harmonization of ASEAN national laws and regulations;
(b) Support the objectives in the ALA ConstitutionALA objective of
developing (i) ASEAN regional laws and legal structures, and (ii)
mechanisms for avoidance and resolution of intra-ASEAN trade and
investment disputes;
(c) Develop a sustained, systematic and long term engagement between
ALA (as the sole entity designated in the ASEAN Charter as the civil society
affiliate for Law) and (a), on one hand, the ASEAN Secretariat, the (b)
ASLOM, and (c) other ASEAN entities and, on the other hand, ALA as the
sole entity designated in the ASEAN Charter as the civil society affiliate for
Law; and
(d) Harness the collaborative potential of ALA and its various networks and
stakeholders from ASEAN legal, business and public sectors to help achieve
the above objectives.
2. Control and Supervision by ALA Governing Council. The Institute will
undertake its programs and activities at all times, subject to the control,
decisions and instructions of the ALA Governing Council.
3. Name and Logo of the Law Institute. To use “ASEAN Law Institute” as its
name and ALA in its branding.
4. Initial incorporation as juridical entity. The Institute shall be a non-profit,
non-stock corporate juridical entity to be incorporated under the laws of the
Philippines, with its principal office initially first set up at the University of the
Philippines, Bonifacio Global City Campus, Metro Manila. Branches of the
Institute in the Philippines or elsewhere may be established at the instance of
the ALA National Committees in their respective home countries of the various
ALA National Committees.
5. Funding. As presented at October 2017 Governing Council meeting in
Manila, tThe ALA Philippine National Committee has contributed the amount
of USD100,000.00 for use as starting capital as presented at the Governing
Council meeting of 25 October 2017 in Manila. Subsequent financial support
shall be derived from future voluntary contributions by any of the ALA National
Committees and donations and/or grants from governmental bodies,
international organizations and private sources including relevant business
entities.
6. Regular Members and Board of Trustees. The Institute shall be
composedhave of ten (10) regular members, with each ALA National
10
Committee designating one (1) regular member. The regular members shall, at
all times, exercise control and supervision over the Law Institute and manage
the same through a Board of Trustees., which The Board of Trustees shall be
comprisedosed of not less than ten (10) and notnor more than fifteen (15)
Trustees designated by the regular members. The Philippine National
Committee shall be responsible to ensure that the foregoing principles are
reflected and enforced in the Articles of Incorporation and By-Laws of the
Institute, consistent with Philippine laws. The Philippine National Committee
shall also advise all non-Philippine members, prior to their appointments, of
their legal obligations under the laws of the Philippines.
7. Board of Advisoers. A Board of Advisoers composed will comprise of
eminent persons including non-lawyers, business persons, and members of
ASEAN-accredited organizations, as may be invited by the Board of Trustees,
shall be organized, to include the ASEAN Secretary General who shall be
regularly consulted by and provide recommendations to the Board of Trustees
in generating support for the Institute’s programs and activities relating to
ASEAN, such as monitoring of ASEAN compliance with treaties and
agreements.
8. Officers of the Institute
(a) The President;
(b) The Secretary;
(c) The Treasurer; and
(d) The Executive Director;
(e) The Secretariat is to be composed of (a) Technical (legal) staff; and (b)
Administrative staff.
9. The activities of the Law Institute shall include (a) research and
publications; (b) capacity and cooperation development in training and
exchanges; (c) consensus and advocacy through conferences and advocacy
support; and (d) ASEAN legal instruments, implementation and monitoring
activities; (e) knowledge creation and dissemination..
10. Initial Budget of Expenses for administration, coordination, and promotion
activities.
12. Program Expenses for (a) Research and Publication Activities
Compensation for Technical Staff, ALA Law Journal, Support work in ASEAN,
Support to E-Book System, and ALA Standing and Ad Hoc Committees; (b)
Training and Exchange Activities; Compensation for Technical Staff; (c)
Conference and Advocacy Support Activities; Compensation for Technical
Staff, and Conference related expenses; and (d) ASEAN Legal Instruments
Implementation Monitoring Activities, Compensation for Technical Staff, and
Monitoring-related expenses.
During the open forum, Brunei commented that the Law Institute should
designation titles should refrain from using American
terminologiesmanagement titles. andBrunei suggested that usingshould be
“used must be President” instead of “CEO” and “, Executive Director” instead
11
of “COO”, for purposes of refraining from using American concepts.
Philippines agreed to this comment from Brunei.
Cambodia commented that itproclaim its fully supports for the
establishmentsetting up of the Law Institute. Malaysia also supports the
initiative but requested for more information about the Law Institute’s
objectives, particularly on its operational meritsuse and source of funding.
Myanmar deferred to express itsabstained, position on the establishment of the
Law Institute ason the basis that they will have to report it tohad to seek
instructions from their Attorney General on this.
Philippines gave its fully supports to the set-up of the Law Institute.
Singapore provided the following comments: (a) the objectives of the Law
Institute have to be entirely consistent with and cannot go beyond that of ALA
and must be aligned to ALA’s Charter and entirely consistent and confines with
the objectives of ALA; (b) the Law Institute must engage parallel Institutes with
similar work and objectives, and build on the momentum of the said established
Institutes; (c) the mechanism for control must include the crafting of the Law
Institute’s annuala work plan of the Law Institute’s proposed work for the year,
and the mechanism for keeping track of the implementation and development;
(d) sustainable source of is essential it is essential for the Law Institute to be
able to sustain itself financially, hence there may be a need to set-up an ALA
funding committee; and (e) Governance must be simplified. Based on the
proposal, there appears to be three spheres of competing influence -- Governing
Council; Board of Trustees; and Board of Directors.
The Philippines commented that the Law Institute should not be incorporated
under Philippine Laws., and Iinstead, the Institute should bemake it answerable
only to the Governing Council. It is possible that the employees of the Law
Institute can be employed by the ASEAN Law Association of the Philippines,
Inc. and then be seconded to work at second them to the Law Institute on a
secondment basis.
Malaysia supported the comment of the Philippines regarding the non-
incorporation of the Llaw Institute under Philippine Laws. Thailand also
supporteds the setting up of the Law Institute but expressed concern about
consequential legal issues should the what will happen if the Law Institute is be
incorporated under Philippine Laws and there will be legal issues.
Vietnam expressed support for the Llaw Institute but proposed that: (a) the
organization structure must be simplified for ease of communication given that
ASEAN has ten (10) member countries, , thus making communication very
challenging and (ii) there should be a mechanism showing in details how the
Governing Council could manage and control the Law Institute (i.e., details on
the Institute’s road map, provide how often the reporting should be and, what is
the mechanism for control; provide for a road map).
12
After the foregoing discussion, the Governing Council approved the Llaw
Institute subject to certain revisions on the draft proposal, as discussed by the
members. Atty. Palacios was requested to revert reply with the revised draft
after thirty (30) days.
XI. REPORT ON ASEAN LEGAL SYSTEMS E-BOOKS
Brunei reported on about the development of the ALA Website. Brunei requested
the members to submit the names of their respective focal person for purposes of
updating their respective legal write- ups in the ALA Website.
The Secretary General of ALA reported that only Vietnam and Singapore have
updated their write-ups as of last year’s deadline. While Brunei, Indonesia,
Malaysia, Philippines and Thailand will have to update their respective write-ups,
Cambodia, Laos and Myanmar will have to provide their write-ups for the first
time, while all the rest will have to update their respective write-up.
XII. PROPOSAL OF THE CHARTERED INSTITUTE OF ARBITRATORS
(CIArb) TO PROVIDE TRAINING TO ASEAN LEGAL
PROFESSIONALS THROUGH ASEAN LAW
The CIArb made a presentation before the Governing Council about on a proposal
to provide training to the ASEAN Legal Professionals, through the ALA, as
suggested byof the former Patron of CIArb, Hon. Chief Justice Menon.
The purpose of the proposal is for the Bar Presidents in ASEAN to give
consideration to the provisions of CIArb Pathway Courses in international
arbitration, mediation and ADR to ALA Legal Professionals, all leading to
accreditation.
Hon. Chief Justice Sundaresh Menon clarified that the presentation by CIArb was
not for purposes of to requesting for an endorsement of ALA to providegive
training courses to the lawyers of the members through their respective Bar
President. Rather, the purpose of the presentation was more for an information
disseminating informationon to the ALA members about CIArb and its services.
CIArb discussed that it can arranged training courses forto ALA Professionals
atin a venue whereich the Bar Presidents consider to be appropriate. Its global
faculty can travel to the respective ASEAN countries to train locallyconduct the
courses. Alternatively, it can arrange for training trainings to take place in
Singapore and invite ALA members from around the region to attend the courses
so as to keep costs as low as possible. CIArb can offer ALA members training
courses at a reduced rate of around 20%-30% discountreduction to its standard
courses. CIArb can offer and an even greater discount if courses are organized
through ALA with a class size of around 20 students.
13
To acknowledge the proposal of CIArb, and to work with CIArb on this proposal,
the Alternative Dispute Resolution Standing Committee, chaired by Vietnam, was
requested to further look into this proposal.
Copies of the CIArb proposal and training brochures were given to the Governing
Council members.
XIII. REPORT OF ALA WEBSITE
The following sections of the Website have been updated: “About Us Section,”
“Profile of the ALA President Atty. Avelino V. Cruz,” “Profile of the Chairman
of ALA Indonesia Chief Justice Dr. M. Hatta Ali,” “Profile of the first ALA
President, the late Sen. Edgardo Angara”, “Other profiles,” and “eBook on Legal
Systems in ASEAN – Vietnam chapter,” and “eBook on Legal Systems in
ASEAN – Singapore chapter.” The following new articles have also been
uploaded ointo the ALA Website: the article on the 39th ALA Governing Council
Meeting held in Brunei Darussalam on 25 March 2017, and the article on ALA
Commemorative Governing Council Meeting held in Manila on 25 October 2017.
The usage hits from October 2017 to June 2018 are as follows: average of 50,090
per month or 1,651 hits per day (October 2017 – June 2018).
The mMost popular section of the Website is the e-Book on Legal Systems in
ASEAN with chapters relating to the Philippines, Brunei Darussalam, Indonesia,
Malaysia and Singapore as charting the top downloads.
XIV. REPORT OF ASEAN LAW ASSOCIATION FOUNDATION
The Secretary General reported that the fund balance of ALA Foundation as atof
30 June 2018 is USD18,319.55.
XV. REPORT OF ALA GOLF CHAPTER
Atty. Jeremy Z. Parulan reported, on behalf of Justice Presbitero Velasco, the
results of the 15th ALA Golf Tournament. Atty. Parulan reported that due to
inclement weather, the ALA Golf Tournament was not completed. Instead, the
players just had fellowship, where the new ALA Golf Captain, Justice Takdir
Rahmadi of Indonesia was elected.
Atty. Parulan thanked all the ALA golf chapters for their open and loyal support
to all the six (6) tournaments that were done administered during their term as
ALA Golf Committee.
XVI. VENUE AND DATE OF THE NEXT ALA GOVERNING COUNCIL
MEETING
14
Thailand has agreedccept to host the (i) 7th CACJ Meeting Governing Council,
and (ii) 41st GC of ALA in October or November 2019. The exact venue will be
announced at a later date.
XVII. OTHER BUSINESS
Singapore discussed a concept note entitled “A Market Place for ASEAN
Internship, Attachment, Placement and Training Opportunities.” In essence, the
concept note proposes for to make the ALA website to to house a virtual “market
place” for internship, attachment and training opportunities so as to match the
legal training requirements on the demand side and with the training opportunities
available on the supply side. Since Given that there is a wide disparity between
in standards among law firms in ASEAN members states, and even within a
particular member state, many law firms could benefit from enhancing the
enhanced opportunities for training opportunities as well as its lawyers andgain
for greater exposure to other legal systems in ASEAN.
Singapore proposes to form a working group to look into the sources of funding
as well as study and recommend a road map how ftor establishing this virtual
marketplace by using tapping on the existing infrastructure in the ALA website
and also to propose the sources of funding.
The Philippines supported the proposal and it was seconded by Brunei. and
Singapore.
XVIII. ADJOURNMENT
There being no other business, the Governing Council meeting was adjourned.
15
SESSION 1
Draft – October 24, 2019
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20 Strategic Plan 2020-2024
21 Work Plan 2020
22
23
24
25 Action Requested from the Institute Governing Board:
26 Approval and Submission to ALA Governing Council
27
28
29
30
31
32
33 Draft – October 24, 2019
34
35 Prepared by Andre Palacios, Institute Executive Director
36 Under the supervision of H.E. Avelino V. Cruz, Institute Chairman
37
38
39
40
0
Draft – October 24, 2019
1 ASEAN Law institute
2
3 VISION: One ASEAN Community.
4
5 MISSION: Promote ASEAN integration
through legal harmonization and convergence.
STRATEGIC PLAN 2020-2024 (5 YEARS)
1st GOAL: ASEAN Law Research
To undertake legal research om ASEAN law in aid of
1. Legal harmonization (i.e., harmonizing a Member State’s national rules with
binding ASEAN regional rules, and with other Member States’ national rules); and
2. Legal convergence (i.e., Member States agreeing to new ASEAN regional rules)
2nd GOAL: ASEAN Stakeholders
(i) To promote awareness and consensus among them concerning ASEAN
agreements and modifications to ASEAN national laws; and (ii) to obtain their
feedback and support.
3rd GOAL: ASEAN Lawyers
(i) To develop their capacity to assist in modifying national and regional rules as
required by ASEAN integration; and (ii) to enhance cooperation among them.
4th GOAL: The Institute
1. To strengthen the executive, technical, and administrative capacity of the
Institute to perform its mandate; and
2. To develop its relationship with ALA entities, ASEAN, research centers, and
development partners.
WORK PLAN 2020 (1 YEAR), Theme: ASEAN Investment Law
MAIN ACTIVITY:
1. ASEAN Law Monitor [Goal 1]
SUPPORT ACTIVITIES:
a. Roundtable Discussions [Goals 1-3]
b. Forum [Goals 1-3]
c. Survey (for 2021) [Goals 1-2]
RELATED ACTIVITIES:
2. ASEAN Law Research Support
a. Panel of Experts and Scholars [Goal 1]
b. Support for Scholars [Goal 1]
c. Research on other topics, as requested [Goal 1]
d. Search Tool for Documents on ALA Website [Goals 1-2]
3. ASEAN Law Exchange [Goal 3]
4. ASEAN Law Engagement [Goal 2]
5. ASEAN Law Partnerships [Goal 4]
1
Draft – October 24, 2019
1 WORK PLAN 2020
2 Theme: ASEAN Investment Law
3 [Detailed information in accompanying document]
4
5 Main activity (on ASEAN Investment Law)
6
7 1. ASEAN Law Monitor 2020 (the Monitor) [Goal 1]
8 Purpose: to assist in monitoring1 and improving the national
9 implementation of ASEAN investment agreements for ASEAN legal
10 harmonization
11 Q1: research team formed and start work
12 Q3: target release of the Monitor
13
14 Support activities (on ASEAN Investment Law)
15
16 1.a. ASEAN Law Monitor Roundtable Discussions2 [Goals 1-3]
17 Q2: roundtables hosted by those ALA National Committees that
18 agreed to host
19 Purposes: to gather inputs for the Monitor 2020; engage with
20 stakeholders; and develop the awareness and capacity of ASEAN
21 lawyers to assist with legal harmonization and convergence
22
23 1.b. ASEAN Law Forum [Goals 1-3]
24 Q4: to present the Monitor 2020 and its recommendations
25
26 Preparatory activities (on ASEAN Dispute Settlement)
27
28 1.c. ASEAN Law Monitor Survey 2021 [Goals 1-2]
29 Q3: research team craft survey questions and identify respondents
30 Q3: survey questions are sent to respondents
31 Q4: answers to survey questions are obtained from respondents
32
33 Related activities
34
35 2. ASEAN Law Research Support
36 2.a. ASEAN Law Experts and Scholars Panel [Goal 1]
37 2.b. ASEAN Law Scholars Support [Goal 1]
38 2.c. ASEAN Law Research on other topics, as requested [Goal 1]
39 2.d. Search Tool for Documents on ALA Website [Goals 1-2]
40
41 3. ASEAN Law Exchange [Goal 3]
42 3.a. Professional Exchange
43 3.b. Law Student Internships
44
1 See ALA Singapore’s Concept Note on ALA’s Role in Monitoring Compliance (“ALA Singapore’s
Monitoring Note”).
2 See ALA Singapore’s Monitoring Note.
2
Draft – October 24, 2019
1 4. ASEAN Law Engagement [Goal 2]
2 4.a. Stakeholder Mapping
3 4.b. Websites of ALA and the Institute
4 4.c. Stakeholder Engagement (Executive Course for Stakeholders)
5 Joint project with the Asian Institute of Management (AIM) to
6 design, develop, and deliver an executive course on ASEAN
7 integration and legal harmonization for ASEAN business
8 executives, entrepreneurs, government policy makers and
9 advisors, and lawyers, AIM is the “Asian pioneer in
10 management education” that was “founded in 1968 by a
11 consortium of prominent business leaders,…academic
12 institutions, and the Harvard Business School”3
13
14 5. ASEAN Law Partnerships [Goal 4]
15 5.a. Engage Researchers and Staff
16 5.b. Develop Relations with ALA and ASEAN Entities
17 5.c. Develop Relations with Research Centers
18 5.d. Develop Relations with Development Partners
19
3 See the AIM website at https://www.aim.edu/about-us.
3
Draft – October 24, 2019
1 Proposed Budget for
2 Activities of the Institute in Year 2020
3 [Funding to be obtained]
4
TOTAL US$110,000
1. ASEAN Law Monitor 5,000
a. Compensation for the Issue Editor None
b. Compensation for consultants nominated by the ALA
National Committees 5,000
c. Compensation for other consultants (for ASEAN regional
and comparative law, and for layout and design) 2,000
d. Printing (approx. 100 copies) 1,000
e. Miscellaneous expenses 13,000
Sub-total
1.b. Roundtable Discussions hosted by National Committees 50,000
US$1,000 per person (for airfare, hotel, and per diem)
x 5 persons (Institute Chairman, Executive Director, Issue
Editor, one Consultant, Institute researcher)
x 10 events if all National Committees will host
Sub-total
1.c. Forum $10,000
a. Venue, food, and technical equipment 3,000
b. Publicity, souvenirs, and miscellaneous expenses
13,000
Sub-total
1.c. Survey (for the Monitor 2021) 1,000
Miscellaneous expenses (for online survey)
2. ASEAN Law Research
2.a. Panel of Experts and Scholars
Covered by the Institute’s budget for administrative activities
2.b. Scholars Support 10,000
8,000
a. Tuition for one LLM scholar (focus on ASEAN Law)
b. Best Thesis Awards (1st, 2nd, 3rd place, and 7 finalists) 18,000
Sub-total
2.c. Research on other topics, upon request 10,000
Compensation for Panel members appointed to assist (i) the
ALA Standing and Ad Hoc Committees, and (ii) the ASEAN
Law Journal and Legal Systems in ASEAN
4
Draft – October 24, 2019
3. ASEAN Law Exchange
Covered by the Institute’s budget for administrative activities
4. ASEAN Law Engagement *5,000
ALA and Institute website expenses
Executive Course covered by the Institute’s budget for
administrative activities
5. ASEAN Law Partnerships
Covered by the Institute’s budget for coordination and
promotion activities
1
2 *To be funded by the Singapore Academy of Law
3
4
5
6 Proposed Budget for
7 Operational Expenses of the Institute in Year 2020
8 [Same as the budget approved by ALA Governing Council in July 2018]
9
TOTAL US$118,000
1. Administration Activities
One-off expenses
1.1. Office set up and equipment and furniture acquisition 10,000
Recurring expenses
1.2. Rent (1,000 per month x 12 months) 12,000
1.3. Communications, utilities, and supplies 12,000
1.4. Compensation
Executive Director (3,000 per month x 12) 36,000
Technical and Administrative Staff (researchers and 18,000
administrative assistants) (total 1,500 per month x 12)
1.5. Expenses for meetings of the Institute Governing Board 6,000
(excluding transportation and accommodation of board
members)
2. Coordination and Promotion Activities
2.1. Transportation, accommodation, and other expenses to 12,000
attend coordination meetings and events with ASEAN
Secretariat, other ASEAN organs, ASEAN Member
States, donors, and development partners
2.2. Transportation, accommodation, and other expenses to 12,000
attend conferences, meetings, and events to promote the
Institute
10
5
Draft – October 24, 2019
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20 Strategic Plan 2020-2024
21 Work Plan 2020
22 Detailed Information
23
24
25
26
27
28
29
30
31
32
33 Draft – October 24, 2019
34
35 Prepared by Andre Palacios, Institute Executive Director
36 Under the supervision of H.E. Avelino V. Cruz, Institute Chairman
37
38
39
40
0
Draft – October 24, 2019
1
2 VISION, MISSION
3
4 ASEAN integration through
5 legal harmonization and convergence
6
7
8 ASEAN lawyers play a crucial role in creating the ASEAN Community.
9 The integration of the ten Member States into a single political, security,
10 economic, social and cultural community requires fundamental changes
11 in (1) the national laws and legal institutions of the individual Member
12 States (i.e., legal harmonization); and (2) ASEAN regional agreements
13 and legal organs which are governed by international law (i.e., legal
14 convergence).
15
16 “Economic integration necessitates policy and regulatory changes.…
17 The [ASEAN Economic Community] is a concerted regulatory and
1189 institutional improvement process for ASEAN Member States.”
20 – ASEAN Economic Community Blueprint 2025
21
22 1. Where we are now
23
24 Southeast Asia is one of the most dynamic regions in the world today. With a
25 population of 650 million (9% of global population), it is now the third largest
26 market and the third largest labor force. Southeast Asia will be the world’s
27 fourth largest economy in ten years.1
28
29 The Association of Southeast Asian Nations (ASEAN), established in 1967
30 as a loose coalition of five states, has transformed into a strong legal
31 institution of ten Member States, with Timor Leste and Papua New Guinea
32 interested to join. The Member States adopted the ASEAN Charter in 2007 as
33 an international treaty to govern the existing regional legal system.
34
35 The ASEAN Law Association (ALA), founded in 1979 to promote
36 cooperation among ASEAN lawyers, is now formally recognized in the ASEAN
37 Charter and may officially engage with ASEAN on law-related matters.2
38
39 In 2018, ALA created the ASEAN Law Institute (the Institute) to support legal
40 harmonization, regionalization, and engagement with ASEAN organs and
41 stakeholders.3
1 Deutsche Bank, Nine Things You Need to Know About ASEAN, April 2019.
2 Article 16.1 and Annex 2, ASEAN Charter.
3 Section 1, Institute By-Laws, provides: “The Institute will:
(a) Support the ALA objective of promoting the harmonization of ASEAN national laws and
regulations;
1
Draft – October 24, 2019
1 2. Where we are headed
2
3 Three ongoing trends in ASEAN have given ALA and the Institute a unique
4 opportunity to help improve the lives of the peoples of Southeast Asia.
5
6 Integration. The first trend is regional integration. The Member States have
7 committed to intensify their efforts to create one ASEAN Community closely
8 cooperating on political, security, economic, and socio-cultural matters.4 The
9 ASEAN Economic Community (AEC), a key pillar of the ASEAN Community,
10 will integrate the Member States into a single market and production base
11 with free flow of goods, services, and investment; facilitated movement of
12 business persons, professionals, talents, and labor; and freer flow of capital.5
13
14 Regional integration will require major changes to the national laws and legal
15 institutions of the Member States and to the ASEAN agreements and legal
16 organs. ALA and the Institute are uniquely qualified to assist in the complex
17 process of modifying the national legal systems and the ASEAN regional legal
18 system.
19
20 Institutionalization. The second trend in ASEAN is institutionalization.6 This
21 trend is reflected in the Charter’s provisions that created numerous ASEAN
22 organs and strengthened the ASEAN Secretariat.
23
24 ALA and the Institute can utilize ALA’s official status as an ASEAN-accredited
25 entity to engage with the ASEAN organs, ASEAN Secretariat, and Member
26 States in order to assist them in modifying the national and regional legal rules
27 as may be required by ASEAN regional integration.
28
29 Legalization. The third trend in ASEAN is legalization.7 This has resulted in a
30 proliferation of ASEAN legal instruments: 64 economic agreements (excluding
31 protocols); 14 political-security agreements (excluding protocols); and 7 socio-
32 cultural instruments. The ASEAN Charter requires the implementation of the
33 agreements and decisions of the ASEAN Summit.8 However, legal scholars
“(b) Support the ALA objective of developing (i) ASEAN regional laws and legal structures, and (ii)
mechanisms for avoidance and resolution of intra-ASEAN trade and investment disputes;
“(c) Develop a sustained, systematic and long term engagement between, on one hand, the ASEAN
Secretariat, the ASEAN Senior Law Officials Meeting, and other ASEAN entities and, on the
other hand, ALA as the sole entity designated in the ASEAN Charter as the civil society affiliate
for Law; and
“(d) Harness the collaborative potential of ALA and its various networks and stakeholders from
ASEAN legal, business and public sectors to help achieve the above objectives.”.
4 Preamble and Article 1(2), ASEAN Charter.
5 Article 1(5), ASEAN Charter.
6 Keynote address by Singapore Finance Minister Heng Swee Keat during the Opening Ceremony of
the 13th ALA General Assembly held in Singapore on July 26, 2018 (“ALA 13th GA Keynote
Speech”).
7 ALA 13th GA Keynote Speech.
8 Articles 8.2(b), 9.4(a), 10.1(b), and 11.2(b), ASEAN Charter.
2
Draft – October 24, 2019
1 have observed that “ASEAN member states do not obey ASEAN law” and
2 “regional compliance is…hovering at ‘30 percent’.”9
3
4 ALA and the Institute can help develop a rules-based ASEAN Community and
5 promote the Rule of Law by (i) assisting the ASEAN Secretariat in monitoring
6 the implementation of ASEAN economic agreements, and (ii) providing
7 feedback and recommendations to the Member States and the ASEAN
8 Secretariat regarding the implementation of existing ASEAN agreements, or
9 the crafting of better legal rules and arrangements.
10
11 3. Institute’s Vision and Mission
12
13 ALA aims to promote the aspirations, objectives, and principles of ASEAN.10
14 Pursuant to ALA’s aim, the Institute shares ASEAN’s vision of establishing
15 one ASEAN Community.
16
17 The Institute’s mission is to promote ASEAN integration through legal
18 harmonization and convergence.
19
20 The integration of the Member States into one ASEAN Community will require
21 numerous, even fundamental, modifications to (i) the national laws,
22 regulations, and legal system of each Member State; and (ii) the regional legal
23 instruments and legal arrangements of ASEAN.
24
25 National level: legal harmonization. At the national level, it is desirable if the
26 Member States can harmonize their national laws even in the absence of any
27 ASEAN agreement requiring them to do so. This kind of legal harmonization
28 is purely voluntary on the part of the Member States. ALA and the Institute can
29 facilitate the voluntary harmonization of ASEAN national laws in order to
30 hasten the integration of the Member States into a single market and
31 production base.
32
33 Also at the national level, a Member State needs to harmonize its national
34 laws with the provisions of the relevant ASEAN legal instrument when
35 required by such instrument. This kind of legal harmonization is a matter of
36 international obligation. ALA and the Institute can assist in the harmonization
37 of national laws with the relevant ASEAN instruments in order to develop a
38 rules-based ASEAN Community and promote the Rule of Law in Southeast
39 Asia.
40
41 Regional level: legal convergence.11 At the ASEAN regional level, Member
42 States need to achieve a legal convergence, i.e., a consensus or agreement,
9 Beckman et al., PROMOTING COMPLIANCE THE ROLE OF DISPUTE SETTLEMENT AND MONITORING
MECHANISMS IN ASEAN INSTRUMENTS, Cambridge (2016).
10 Preamble, ALA Constitution.
3
Draft – October 24, 2019
1 on the ASEAN legal instruments and legal arrangements that they wish to
2 govern their new relations as an integrating ASEAN Community. These
3 ASEAN legal instruments and legal arrangements will be governed by public
4 international law, primarily treaty law.
5
6 Legal convergence may also occur at the national level of the individual
7 Member States if they voluntarily agree to adopt and implement a model
8 national law or national regulation. ALA and the Institute can assist in
9 facilitating both types of legal convergence.
11 On legal convergence, see ALA Singapore’s Concept Note on Promoting Legal Convergence in the
Area of Enforcement of Judgments and Arbitration Awards (“ALA Singapore’s Dispute Settlement
Note”).
4
Draft – October 24, 2019
1
2 STRATEGIC PLAN 2020-2024
3
4 Research, consensus, capacity
5 development, and institution building
6
7
8
9 The Institute will have four strategic goals during the five-year period from
10 January 1, 2020 to December 31, 2024.
11
12 1. ASEAN Law Research
13
14 The first goal of the Institute is to undertake legal research on ASEAN law in
15 aid of ASEAN legal harmonization and convergence. The ASEAN law
16 research of the Institute will seek to:
17
18 a. Assist the ALA Governing Council, ALA officers, and ALA committees;
19 b. Assist the ASEAN Secretariat in monitoring and improving the national
20 implementation of ASEAN economic agreements by the Member
21 States;12 and
22 c. Provide feedback and recommendations to the ASEAN Secretariat and
23 the Member States regarding the implementation of ASEAN economic
24 agreements.
25
26 Research on ASEAN law will cover three areas.
27
28 First, ASEAN legal instruments and legal arrangements, all of which are
29 governed by international law. ASEAN legal instruments may be classified into
30 two kinds: (i) agreements creating “hard law”, or binding rules of international
31 law; and (ii) declarations and legal instruments that constitute “soft law”, or
32 guidelines intended to influence the actions of Member States but are not
33 enforceable under international law.
34
35 Second, the national rules and legal systems of ASEAN Member States. The
36 conduct of research on ASEAN national rules is consistent with ALA’s
37 objective of promoting “the study of and research in the laws of the ASEAN
38 countries with a view to harmonizing those laws as required by the social and
39 economic development of the ASEAN region.”13
40
41 Third, a comparison of the national rules and legal systems of ASEAN
42 Member States. ASEAN lawyers need to understand the similarities and
12 Section 7, Institute By-Laws. See ALA Singapore’s Concept Note on ALA’s Role in Monitoring
Compliance (“ALA Singapore’s Monitoring Note”).
13 Article 2.1(b)(i), ALA Constitution.
5
Draft – October 24, 2019
1 differences among the national laws of the various Member States in order to
2 assist their governments and clients, decide their cases, and conduct their
3 research, concerning intra-ASEAN trade, investments, and economic
4 transactions which are rapidly increasing as a result of ASEAN regional
5 integration.
6
7 2. ASEAN Stakeholders: Awareness, Feedback, Support, and Consensus
8
9 The second goal of the Institute is to promote awareness and consensus
10 among the stakeholders in ASEAN, and obtain their feedback and
11 support. Specifically, the Institute will:
12
13 1. Promote awareness among ASEAN stakeholders regarding (a) the
14 relevant ASEAN economic agreements14 and the gaps in said
15 agreements; and (b) the national laws of Member States and the
16 modifications required to harmonize these with relevant ASEAN
17 economic agreements (as a matter of obligation) and with the national
18 laws of other Member States (as a voluntary matter).
19
20 2. Obtain feedback and suggestions from ASEAN stakeholders
21 regarding (a) implementation of relevant ASEAN economic agreements
22 by the Member States; and (b) improvements to such agreements and
23 national implementation efforts so that the intended beneficiaries may
24 enjoy the gains of ASEAN regional integration.
25
26 3. Develop support and consensus among ASEAN stakeholders
27 regarding (a) the need for Member States to implement the relevant
28 ASEAN economic agreements and to modify their national laws if
29 required; and (b) any proposed improvements to the relevant ASEAN
30 economic agreements.
31
32 The stakeholders in ASEAN are the important ingredient, as well as the
33 intended beneficiaries, of ongoing efforts to create one ASEAN Community.
34 Thus, the ASEAN Member States have mandated “enhance[d] engagement
35 with stakeholders…to promote a better understanding of ASEAN economic
36 integration initiatives;…and enhance[d] consultations with stakeholders on
37 new initiatives.”15 This mandate is consistent with the ASEAN Charter which
38 requires enhanced consultations by ASEAN and the Member States.16
39
40
14 See ALA Singapore’s Concept Note on ALA’s Role in Promoting Awareness of ASEAN Legal
Instruments and their Implementation (“ALA Singapore’s Awareness Note”).
15 Para. 78, AEC Blueprint 2025.
16 Article 2(g), ASEAN Charter.
6
Draft – October 24, 2019
1 3. ASEAN Lawyers: Capacity and Cooperation
2
3 The third goal of the Institute is to develop the capacity of ASEAN lawyers
4 and enhance cooperation among them in order to hasten ASEAN regional
5 integration.
6
7 There is a need for ASEAN lawyers, judges, and scholars to develop their
8 capacity to assist their governments and clients, decide their cases, and
9 conduct their research and instruction, respectively, concerning the
10 modification of national and regional rules to achieve ASEAN integration.
11
12 There is also a need to develop a “close cooperation among lawyers from the
13 ASEAN member countries [as this] would help promote the aspirations,
14 objectives and principles” of ASEAN.17 The Institute supports ALA’s aims to:
15
16 1. “promote close relations, cooperation and mutual understanding
17 amongst lawyers in the ASEAN countries”;
18 2. “provide the organisational framework for regional cooperation” of
19 ASEAN lawyers, including through “collaboration projects among
20 lawyers’ organisations, law faculties, legal research centres and other
21 like institutions in the ASEAN countries”; and
22 3. “cooperate with international, regional, national and other organisations
23 in the furtherance of [ALA’s] objectives.”18
24
25 4. ASEAN Law Institute: Institution Building
26
27 The fourth goal of the Institute is to (i) strengthen its executive, technical, and
28 administrative capacity to perform its mandate; and (ii) develop its
29 relationship with ALA entities, ASEAN, research centers, and development
30 partners.
31
32 The Institute shall develop its relationship with, and synchronize its plans and
33 activities with those of,:
34
35 1. the ALA Governing Council, ALA officers, and ALA committees so the
36 Institute can effectively support them; and
37 2. the ASEAN organs, including the ASEAN Secretariat, so the Institute
38 can help “develop a sustained, systematic and long term engagement”
39 between ALA and the ASEAN entities.19
40
17 Preamble, ALA Constitution.
18 Articles 2.1(a), (b)(ii), and (d), ALA Constitution.
19 Section 1(c), Institute By-Laws.
7
Draft – October 24, 2019
1 The Institute shall develop its relationship with (a) research centers and law
2 faculties engaged in related work; and (b) development partners, such as
3 inter-governmental, governmental, and private organizations for purposes of:
4
5 1. enhancing the Institute’s capacity to perform its functions;
6 2. augmenting the Institute’s limited resources, including obtaining
7 donations and grants;20 and
8 3. expanding the network of support for ASEAN, ALA, and the Institute.
9
10 5. Work Theme for the Year
11
12 The Institute’s main activities during a calendar year shall be focused on the
13 work theme for that year. However, due to the length of time required to
14 complete the main activities for a work theme for a particular year, preparatory
15 activities for such work theme may be undertaken during the prior year.
16
17 The work themes and corresponding major ASEAN legal instruments are
18 listed below.21 Other ASEAN legal instruments that may be relevant to the
19 work themes have been omitted for brevity.
20
2020 • ASEAN Investment Law (including Technology)
• ASEAN Comprehensive Investment Agreement (ACIA)
2021 • ASEAN Dispute Settlement
• ASEAN Protocol on Enhanced Dispute Settlement Mechanism
2022 • ASEAN Infrastructure Law
• AEC Blueprint 2025; Master Plan on ASEAN Connectivity 2025
2023 • ASEAN Trade Law
• ASEAN Trade in Goods Agreement (ATIGA)
2024 • ASEAN Trade Law
• ASEAN Trade in Services Agreement (ATISA)
21
22
23
20 Section 5, Institute By-Laws.
21 On Dispute Settlement as the work theme for 2021, see ALA Singapore’s Dispute Settlement Note.
8
Draft – October 24, 2019
1
2 WORK PLAN 2020
3 Theme: ASEAN Investment Law
4
5
6
7
8 1. ASEAN Law Monitor
9 1.1. Purposes. Legal scholars have observed that “ASEAN member states do
10 not obey ASEAN law” and “regional compliance is…hovering at 30 percent.”22
11 The purposes of the Monitor 2020 are to (1) monitor the national
12 implementation of the ASEAN Comprehensive Investment Agreement (ACIA)
13 and other ASEAN investment agreements by Member States;23 and (2) give
14 recommendations on priority areas for legal harmonization and convergence.
15
16 ACIA plays a key role in intra-ASEAN investment protection, facilitation, and
17 liberalization, and in promoting ASEAN as a destination for investments from
18 outside ASEAN. Member States have agreed to complete the ACIA agenda
19 for eliminating restrictions to intra-ASEAN investments, study the reduction of
20 the ACIA Reservation Lists, and enhance the existing review mechanism.24
21
22
22 Beckman et al., PROMOTING COMPLIANCE THE ROLE OF DISPUTE SETTLEMENT AND MONITORING
MECHANISMS IN ASEAN INSTRUMENTS, Cambridge (2016).
23 See ALA Singapore’s Monitoring Note.
24 Para. 15, AEC Blueprint 2025.
9
Draft – October 24, 2019
1
2 Due to the limited time, research for the Monitor 2020 will build on existing
3 research regarding ACIA implementation and ASEAN national laws.25
4
5 1.2. Contents. Subject to any changes that may be approved by the Institute
6 Chairman, the Monitor 2020 shall contain the following parts:
7
8 1. Region report: ASEAN rules
9 a. Existing rules
10 i. Summary: ASEAN Comprehensive Investment Agreement
11 ii. Summary: ASEAN investment agreements (or investment
12 provisions of agreements) with China, Japan, India, Korea,
13 Australia and New Zealand, and Hong Kong
14 b. Improvements to existing rules
15 i. Recommendation: Areas of priority and technical
16 assistance for improving ASEAN investment rules
17 ii. Recommendation: Draft ASEAN legal instrument
18
19 2. Country report: National rules of each Member State
20 a. Harmonization of national laws with ASEAN obligations
21 i. Analysis: Each Member State’s (i) obligations under the
22 ASEAN investment agreements and (ii) its investment laws
23 b. Improving a Member State’s implementation of its ASEAN
24 obligations
25 i. Recommendation: Areas of priority and technical
26 assistance for improving a Member State’s implementation
27 of its ASEAN obligations
28 ii. Case study: The experience of a Member State in
29 implementing its ASEAN obligations at the national level
30
31 3. Comparative report: Investment laws of ASEAN Member States
32 a. A comparison of the investment laws of the Member States to
33 determine how close the ASEAN region is to becoming a single
34 market and production unit
35
36 1.3. Tasks.
37
38 1. Editor-in-Chief – The Institute Executive Director shall be the Editor-in-
39 Chief of the annual Monitor.
40 2. Issue Editor – The Issue Editor shall be appointed by the Institute
41 Chairman and shall ensure the timely production and publication of the
42 Monitor 2020.
25 For example, International Institute for Sustainable Development, Investment Laws of ASEAN
Countries: A comparative review (2017).
10
Draft – October 24, 2019
1 3. Country Report Consultants – A consultant shall (a) write the Country
2 Report for the Member State assigned to him or her; and (b) be
3 appointed by the Institute Chairman upon the nomination of the ALA
4 National Committee for the Member State that will be subject of his or
5 her Country Report.
6 a. Beginning in the year 2021, the Institute’s LL.M. scholar shall
7 prepare the Country Report for the Member State of which he or
8 she is a national, unless the Institute Chairman decides to appoint
9 an individual nominated by the ALA National Committee for such
10 Member State to write the Country Report.
11
12 Due to the amount of time required to conduct research for the Monitor, the
13 research activities for the Monitor 2021 shall begin in year 2020.
14
15 1.a. ASEAN Law Monitor Roundtable Discussions26
16
17 1.a.1. Purposes. The Institute shall organize Roundtable Discussions for the
18 Monitor 2020 to (1) promote awareness among stakeholders regarding the
19 Member State’s obligations under the ASEAN investment agreements, the
20 need for legal harmonization and convergence, and the importance of
21 stakeholder support and consensus; and (2) obtain inputs and
22 recommendations from ALA National Committee members, ASEAN lawyers,
23 and stakeholders regarding the implementation of ACIA and other ASEAN
24 investment agreements.
25
26
27
28 1.a.2. Tasks and Topics. The Institute Executive Director shall (a) consult
29 with the ALA National Committees to determine which committees will host a
30 Roundtable Discussion in their country; and (b) coordinate the event details
26 See ALA Singapore’s Monitoring Note.
11
Draft – October 24, 2019
1 (including date, venue, program, and participants) with the ALA National
2 Committees that agreed to host a Roundtable Discussion.
3
4 Subject to any changes that may be agreed with the host ALA National
5 Committee, the following are the topics for discussion:
6
7 1. Presentation on (a) ASEAN integration, (b) need for legal harmonization
8 and convergence, and (c) importance of stakeholder support and
9 consensus [by the Institute Chairman or Executive Director]
10 2. Presentation on the Member State’s obligations under the ASEAN
11 investment agreements [by the Issue Editor or Country Report
12 Consultant]
13 3. Presentation (if available) on the Member State’s national laws that
14 need to be harmonized with such Member State’s ASEAN obligations
15 [by the Issue Editor or Country Report Consultant]
16 4. Discussion on (a) the Member State’s national laws that need to be
17 harmonized with such Member State’s ASEAN obligations;
18 (b) recommendations on areas of priority and technical assistance
19 5. Presentation (if available) on a draft ASEAN legal instrument [by the
20 Issue Editor]
21
22
23 1.b. ASEAN Law Forum
24
25
26
27 1.b.1. Purposes. The Institute shall organize an ASEAN Law Forum for the
28 purposes of (a) presenting the findings and recommendations contained in the
29 ASEAN Law Monitor 2020; (b) promoting awareness of, and obtaining
12
Draft – October 24, 2019
1 feedback and suggestions regarding, the ASEAN investment agreements and
2 the state of their national implementation by Member States; (c) developing
3 support and consensus regarding the need for Member States to implement
4 the ASEAN investment agreements; and (d) developing the awareness and
5 capacity of ASEAN lawyers to assist in legal harmonization and convergence
6 with regard to investment rules.
7
8 1.b.2. Participants. The Institute shall invite: (1) ALA officers and committees;
9 (2) ALA National Committees; (3) ASEAN organs, including the ASEAN
10 Secretariat; (4) ASEAN lawyers who apply national and regional investment
11 rules when assisting their governments and clients, deciding their cases, and
12 conducting their research and instruction; (5) ASEAN law experts, scholars,
13 and researchers, including law professors and students; (6) business entities
14 engaged or interested in intra-ASEAN investment;27 (7) civil society
15 organizations; and (8) development partners.
16
17 1.b.3. Tasks. The Institute Executive Director will take the lead in organizing
18 the Forum.
19
20 1.c. ASEAN Law Monitor Survey 2021
21
22 The ASEAN Secretariat plans to conduct a survey, which ALA can support by
23 sending the survey questions to ALA National Committee members.28
24
25 1.c.1. Purposes. A survey is useful for purposes of (1) monitoring the
26 implementation of ASEAN agreements; (2) promoting awareness of such
27 agreements; and (3) consulting stakeholders regarding the implementation of
28 such agreements. Despite the usefulness of a survey for the Monitor, there is
29 insufficient time to conduct one for the Monitor 2020. Instead, the Institute
30 shall conduct a survey for the Monitor 2021.
31
32 The ASEAN Law Monitor Survey 2021 will solicit information that can be
33 useful to the editor and consultants of the Monitor 2021 concerning ASEAN
34 Dispute Settlement.
35
36 1.c.2. Tasks.
37
38 1. The Issue Editor for the Monitor 2021 shall (a) ensure the timely
39 preparation and release of the Survey questions; and (b) prepare the list
40 of Survey respondents.
41 2. The Country Report Consultants (and LL.M. scholars, if available) shall
42 assist in preparing the questions and the list of respondents.
27 See Annex Table 1 of the ASEAN Investment Report 2018, listing the top 100 non-financial ASEAN
multinational entities with presence in the ASEAN region.
28 ALA Singapore’s Monitoring Note.
13
Draft – October 24, 2019
1 3. The Institute Executive Director shall (a) assist in preparing the
2 questions and the list of respondents, including by consulting with the
3 ALA National Committees; and (b) ensure that the editor and
4 consultants are provided with the technical and administrative support
5 required to perform their tasks.
6
7 1.c.3. Timeline. Below is the timeline for (i) the Monitor, Roundtable
8 Discussions, and Forum for year 2020, and (ii) the preparatory activities for
9 the Monitor and Survey for year 2021:
10
11 Q1
12 o Appointment of Issue Editor and Country Report Consultants for
13 the Monitor 2020
14 o Consultants start drafting Country Reports for the Monitor 2020
15 o Preparations for the Roundtable Discussions 2020
16 Q2
17 o Hold the Roundtable Discussions 2020
18 o [end Q2] Consultants submit their draft Country Reports
19 Appointment of Monitor 2021 Issue Editor and Consultants
20 Q3
21 Issue Editor and Consultants prepare the Survey 2021
22 questions
23 The Survey 2021 questions are sent to the respondents
24 September 1
25 o Submission of draft Monitor to the Institute Chairman for approval
26 October 1:
27 o Release of electronic copy of the Monitor 2020
28 November
29 o Hold the ASEAN Law Forum to present the Monitor 2020
30 Q4
31 Obtain answers to the Survey 2021 questions
32
33
34
14
Draft – October 24, 2019
1 2. ASEAN Law Research Support
2
3 ASEAN regional integration requires major changes to the national laws and
4 legal institutions of the Member States and to the ASEAN agreements and
5 legal organs. The Institute shall promote and support legal research on
6 ASEAN law that will aid ASEAN29 and the Member States in undertaking the
7 complex process of modifying the national legal systems and the ASEAN
8 regional legal system as required by regional integration.
9
10 2.a. ASEAN Law Experts and Scholars Panel
11
12 ASEAN integration requires ASEAN law experts and scholars who have the
13 ability to undertake “the creation, organization, deepening, and dissemination
14 of knowledge regarding ASEAN national laws, the similarities among national
15 laws, and ASEAN regional law.”30 A sufficient number of such experts and
16 scholars need to be nationals of Member States so ASEAN law expertise will
17 continue to be accessible to Member States. This will help ensure that ASEAN
18 legal harmonization and convergence will be sustainable.
19
20
21
22 2.a.1. Composition. The Institute By-Laws provide for a “Panel of ASEAN
23 Legal Experts.”31 In addition to experts, the Panel shall also include ASEAN
24 law scholars, i.e., individuals studying ASEAN law in order to become experts
25 of ASEAN law. The inclusion of ASEAN law scholars in the Panel will help
26 (1) identify individuals with the potential to become ASEAN law experts, and
27 (2) expand the pool of individuals who may be engaged by the Institute for
28 ASEAN law research.
29
30 The Panel shall be divided into ten groups, one group for each Member State
31 (each such group, a National Group). The National Group for a Member State
29 On ALA’s panel of experts advising the ASEAN Secretariat, see ALA Singapore’s Concept Note on
Establishing a Panel of Experts (“ALA Singapore’s Panel Note”).
30 Section A.1, Annex A to the Institute By-Laws.
31 Section A.1, Annex A to the Institute By-Laws.
15
Draft – October 24, 2019
1 shall be composed of nationals of that Member State who (1) are considered
2 to be experts and scholars in ASEAN law, i.e., “(i) ASEAN national law;
3 (ii) ASEAN comparative law; and (iii) ASEAN regional law”32; and (2) have
4 signified their willingness to undertake ASEAN law research with the Institute.
5 To the greatest extent possible, each National Group shall cover the following
6 areas of law:
7
8 1. ASEAN Member State’s national law
9 1.1. Political law
10 1.2. Civil law
11 1.3. Commercial
12 1.4. Criminal law
13 1.5. Remedial law
14 1.6. Tax law
15 1.7. Labor and employment law
16 1.8. Legal ethics
17 2. ASEAN comparative law
18 Similarities and differences among ASEAN national laws
19 3. ASEAN regional law and international law
20
21 Once the Panel has been created, the Institute shall endeavor to (1) promote
22 the expertise and scholarship of the Panel members, and (2) engage them for
23 ASEAN law research and related activities.
24
25 2.a.2. Tasks and Timeline. Below are the tasks and timeline for the Panel:
26
27 Until June 1: The ALA National Committee of each Member State may
28 nominate nationals of such Member State for appointment to the Panel,
29 specifying the area of expertise or study for each individual and
30 indicating that the individual has accepted the nomination.
31
32 By July 1: The Institute Chairman shall endorse the nominated
33 individuals for appointment by the ALA President.
34
35 By August 1: Publish the names of Panel members on the Institute
36 website.
37
38 In order to give each ALA President the opportunity to select the Panel
39 members during such ALA President’s term, an individual’s appointment as
40 Panel member shall expire on the last day of the sixth month following the
41 triennial conference of the ALA General Assembly immediately following such
42 individual’s appointment. An individual may be re-appointed for a new term as
43 a Panel member.
32 Section A.1, Annex A to the Institute By-Laws.
16
Draft – October 24, 2019
1 2.b. ASEAN Law Scholars Support
2
3 The Institute will provide financial support in the following forms to encourage
4 more individuals to become ASEAN law scholars:
5
6 1. LL.M. Scholarship – Financial scholarship to at least one national of an
7 Member State undertaking LL.M. studies with focus on ASEAN law.
8 2. Best Thesis Awards – Cash awards to law students who are nationals
9 of Member States who submit the ten best thesis research papers (1st
10 place US$2,000, 2nd place US$1,500, 3rd place US$1,000, seven
11 finalists with US$500 each).
12 3. Internship and Exchange Support – If additional financial support is
13 available, nationals of Member States participating in student
14 internships and professional exchanges.
15
16 Beginning in the year 2021, each LL.M. scholar of the Institute is expected to
17 participate in the ASEAN Law Monitor, Survey and Roundtable Discussions,
18 possibly by contributing the section of the Monitor pertaining to the laws of the
19 scholar’s country of nationality.
20
21 2.b.1. LL.M. Scholarship. Below are the tasks and timeline for the LL.M.
22 Scholarship:
23
24 Until March 1
25 o The ALA National Committee of each ASEAN Member State may
26 nominate nationals of such Member State for LL.M. scholarship.
27 By April 1
28 o The Institute Chairman will select and announce the name of the
29 LL.M. scholar selected from among those nominated.
30 August
31 o The LL.M. scholar will commence studies.
32
33 2.b.2. Best Thesis Awards. Below are the tasks and timeline for the Best
34 Thesis Awards:
35
36 By April 1
37 o The Institute Chairman shall create a panel of judges for the Best
38 Thesis Awards.
39 Until May 1
40 o Eligible students may submit their thesis papers.
41 By July 1
42 o The panel of judges shall select the ten best thesis papers.
43 November
44 o The awards may be given during ASEAN Law Forum 2020 (and
45 the following year, during ASEAN Law Conference 2021)
46
17
Draft – October 24, 2019
1 2.c. ASEAN Law Research on other topics, upon request
2
3 The Institute shall undertake legal research to support the following:
4
5 1. the ALA Governing Council and ALA President
6 2. the ALA Standing and Ad Hoc Committees
7 3. the ASEAN Law Journal, and
8 4. the Legal Systems in ASEAN collection.33
9
10 2.c,1. Support to ALA GC and ALA President. The Institute operates
11 subject to the control, decisions, and instructions of the ALA Governing
12 Council.34 The Institute can undertake specific research activities upon the
13 request of the ALA Governing Council or the ALA President.
14
15 2.c.2. Support to ALA Standing and Ad Hoc Committees. Upon the
16 request of an ALA Standing or Ad Hoc Committee, the Institute Chairman may
17 appoint a member of the Panel of ASEAN Law Experts and Scholars to serve
18 as an independent expert, known as special rapporteur, for such committee.
19 The Institute Chairman shall determine the terms of reference of the special
20 rapporteur, which may include (1) the study of ASEAN national, regional, or
21 comparative laws, (2) an inquiry into the practice of Member States, (3) the
22 drafting of model national laws and regulations, or ASEAN legal instruments,
23 for consideration by the committee and ASEAN organs, and (4) preparation of
24 an expert’s report to assist the committee and ALA in promoting legal
25 harmonization and convergence and in engaging with ASEAN organs and
26 stakeholders.
27
28 The model national law and the draft ASEAN legal instrument are important
29 parts of the expert's report. One example of model national regulations is the
30 Guideline for the Enforcement of Arbitral Awards in ASEAN Members States,
31 which ALA submitted to the ASEAN Senior Law Officials Meetings for
32 consideration.35
33
34 The committees may be interested to prepare implementation toolkits36 to
35 guide Member States in (a) undertaking the national implementation of their
36 ASEAN obligations; and (b) assessing the extent and quality of their national
37 implementation.
38
39 2.c.3. Support to ASEAN Law Journal. Upon the request of the ASEAN Law
40 Journal editor, the Institute Chairman may appoint individuals, preferably from
41 among the members of the Panel of ASEAN Law Experts and Scholars, to
33 Part A, Annex A to Institute By-Laws.
34 Section 2, Institute By-Laws.
35 Item A.3, Annex A to Institute By-Laws.
36 On implementation toolkits, see ALA Singapore’s Dispute Settlement Note.
18
Draft – October 24, 2019
1 assist the Journal editor in producing and publishing the Journal. The Institute
2 Chairman shall determine the terms of reference of such individuals, which
3 may include (1) writing legal articles, or (2) assisting with layout, design, and
4 publication.
5
6 Beginning in the year 2021, each LL.M. scholar of the Institute will be required
7 to contribute one article for the Journal.
8
9 2.c.4. Support to Legal Systems in ASEAN. Upon the request of the editors
10 of Legal Systems in ASEAN, the Institute Chairman may appoint individuals,
11 preferably from among the members of the Panel of ASEAN Law Experts and
12 Scholars, to assist the editors in updating and expanding the collection. The
13 Institute Chairman shall determine the terms of reference of such individuals,
14 which may include the translation of particular laws of an ASEAN Member
15 State into the English language.
16
17 Beginning in the year 2021, each LL.M. scholar of the Institute will be required
18 to review the section of Legal Systems in ASEAN pertaining to the scholar’s
19 country of nationality.
20
21 2.d. Search Tool for Documents on ALA Website. Presently, the ALA
22 website contains numerous speeches and publications. In the future, the
23 Institute’s website will contain ASEAN law research outputs. The Institute shall
24 review and tag the ALA speeches and publications found on the websites of
25 ALA and the Institute so that these may be easily searched and cited by
26 ASEAN researchers, especially ASEAN law scholars and students.
27
28
29 3. ASEAN Law Exchange
30
31 3.a. Professional Exchange. The Institute shall organize at least one
32 professional exchange where a government policy maker or legal advisor,
33 judge, law practitioner, or law professor will visit an organization in a Member
34 State to observe, learn, and share experiences regarding legal harmonization
35 and convergence in the area of ASEAN investment law. The ASEAN Law
36 Professional Exchange can be similar to the Judicial Training Exchange
37 proposed by the ALA Ad Hoc Committee in 2014.
38
39 3.b. Law Student Internships. The Institute shall invite government
40 agencies, courts and judicial offices, law firms, and research centers in the
41 Member States to offer internship opportunities to law students who are
42 nationals of the Member States.
43
44
45
19
Draft – October 24, 2019
1 4. ASEAN Law Engagement
2
3 4.a. Stakeholder Mapping. Consistent with the ASEAN Charter’s mandate of
4 enhanced consultations by ASEAN and Member States,37 the Member States
5 agreed to “enhance engagement with stakeholders [for] a better
6 understanding of ASEAN economic integration initiatives;…and enhance
7 consultations with stakeholders on new initiatives.”38 The Institute shall assist
8 ALA and the ASEAN Secretariat in identifying the stakeholders – including
9 governmental, non-governmental, and inter-governmental entities – who
10 (1) should be involved in the ASEAN process of engagement, consultation,
11 and consensus building, and (2) can provide valuable feedback and support
12 for ASEAN integration and legal harmonization and convergence.
13
14 4.b. Websites of ALA and the Institute. The Institute shall maintain and
15 promote the websites of ALA and the Institute to (a) develop awareness and
16 appreciation for ASEAN integration through legal harmonization and
17 convergence among ASEAN stakeholders; (b) obtain their feedback and
18 support; and (c) disseminate ASEAN law research outputs to ASEAN lawyers,
19 law scholars, and law students.
20
21 4.c. Stakeholder Engagement. The Institute shall assist ALA and the ASEAN
22 in engaging with the identified stakeholders through the following activities:
23
24 1. Beginning in year 2020, the Institute will undertake a joint project with
25 the Asian Institute of Management (AIM), the “Asian pioneer in
26 management education” that was “founded in 1968 by a consortium of
27 prominent business leaders,…academic institutions, and the Harvard
28 Business School.”39 The joint project is for the design, development,
29 and delivery by AIM professors and the Institute’s staff and consultants,
30 including members of the Panel of ASEAN Law Experts and Scholars,
31 of an executive course on ASEAN integration and legal harmonization
32 for ASEAN business executives, entrepreneurs, government policy
33 makers and advisors, and lawyers. The joint project will support the
34 development of ASEAN regional rules and national laws that regulate
35 information technology, cybersecurity, artificial intelligence, and other
36 new technologies, while promoting ASEAN economic integration and
37 legal harmonization.
38
39 2. The Institute Chairman and Executive Director shall introduce and
40 promote the Institute to ASEAN stakeholders through conferences,
41 meetings, and events.
42
37 Article 2(g), ASEAN Charter.
38 Para. 78, AEC Blueprint 2025.
39 See the AIM website at https://www.aim.edu/about-us.
20
Draft – October 24, 2019
1 For year 2020, the Institute’s stakeholder engagement activities will
2 (1) promote awareness and consensus among ASEAN stakeholders
3 regarding the ASEAN investment agreements and the need for national
4 implementation and legal harmonization; and (2) obtain their feedback and
5 support for ASEAN economic integration and legal harmonization, especially
6 in the convergence of investment law and technology.
7
8 5. ASEAN Law Partnerships
9
10 5.a. Engage Researchers and Staff. The Institute shall strengthen its
11 executive, technical, and administrative capacity to perform its mandate by
12 engaging:
13
14 1. Members of the ASEAN Law Experts and Scholars Panel to undertake
15 ASEAN law research;
16 2. At least one ASEAN law scholar as a researcher of the Institute; and
17 3. At least one research or administrative assistant to provide support in
18 undertaking the activities of the Institute.
19
20 5.b. Develop Relations with ALA and ASEAN Entities. The Institute shall
21 develop its relationship with, and synchronize its plans and activities with
22 those of, the following:
23
24 1. the ALA Governing Council, ALA officers, and ALA committees so the
25 Institute can effectively support them; and
26 2. the ASEAN Secretariat so the Institute can help “develop a sustained,
27 systematic and long term engagement” between ALA and the ASEAN
28 entities.40
29
30 5.c. Develop Relations with Research Partners. The Institute shall develop
31 its relationship with research centers and law faculties engaged in related
32 work for the purpose of enhancing the Institute’s capacity to perform its
33 functions.
34
35 5.d. Develop Relations with Development Partners. The Institute Chairman
36 is engaged in discussions with the Asian Infrastructure Investment Bank (AIIB)
37 and the Asian Development Bank (ADB) regarding the possibility of AIIB and
38 ADB providing funding for the Institute’s activities.
39
40 The Institute shall develop its relationship with governmental organizations,
41 private entities (including non-governmental organizations), and inter-
42 governmental organizations in order to augment the Institute’s limited
43 resources, including obtaining donations and grants;41 and to expand the
40 Section 1(c), Institute By-Laws.
41 Section 5, Institute By-Laws.
21
Draft – October 24, 2019
1 network of support for the advocacies and initiatives of ASEAN, ALA, and the
2 Institute.
3
22
SESSION 2
Concept Note on the ASEAN Law Association’s Role in Promoting Awareness of
ASEAN Legal Instruments and their Implementation
I. Introduction
1. This concept note explores how the ASEAN Law Association (“ALA”) may assist the
ASEAN Secretariat (“ASEC”) in promoting awareness across ASEAN Member States
(“AMS”) of ASEAN legal instruments and their implementation.
II. Impetus for ALA’s involvement in promoting awareness of ASEAN legal
instruments and their implementation
2. At a meeting in Jakarta, Indonesia on 12 March 2019, ASEAN Secretary-General H.E.
Dato Lim Jock Hoi and ALA President, Chief Justice Sundaresh Menon discussed several ways
ASEC and ALA could work together on monitoring the implementation of ASEAN legal
instruments1. A complementary idea discussed at that meeting was the desirability of
promoting awareness of ASEAN legal instruments and their implementation. Raising such
awareness would allow AMS to learn from the challenges faced by other AMS and also help
generate collective momentum and galvanise stakeholders into action towards earlier and more
effective implementation.
III. How ALA may potentially contribute
3. One of ALA’s objectives is to promote, exchange, and disseminate information on the
law, legal systems and legal development of the AMS.2 Through its triennial General
Assemblies and annual Governing Council meetings, ALA provides a regular platform for
judges, practising lawyers, and academia in ASEAN to exchange ideas and information. The
ALA network facilitates exchange through ad hoc events, including dialogues and training
1
1 This is the subject of a separate concept note, ‘Concept Note on the ASEAN Law Association’s Role in
Monitoring Compliance’ dated [xxx].
2 Article II, para 2.1(b)(iii) of the Constitution of ALA (1979), amended 1 June 2004,
<https://www.aseanlawassociation.org/ALA_Constitution.pdf>.
sessions involving judiciaries of different AMS, and seminars and workshops organised from
time to time by individual ALA National Committees that are open to all ALA members.3
4. ALA is also active in the areas of legal education and collaboration among AMS. ALA
publishes the papers presented at General Assemblies,4 and produces other publications
including the ASEAN Law Journal and special commemorative publications. ALA maintains
a website that serves as a digital repository of speeches and publications.
5. ALA may thus be described as ASEAN’s legal think tank,5 and is well suited to put
forward pragmatic proposals and ideas to promote awareness of ASEAN instruments.
6. It should however be noted that ALA’s members contribute to its work on an entirely
voluntary basis within the constraints of their own full-time occupations. This situation may
change with the launch of the ASEAN Law Institute (“ALI”) next month. ALI will in effect
serve as a research and executive arm of ALA, and its activities will include research and
publication, organising training, conferences, and professional exchanges.
7. Given the above, the potential ways ALA could assist ASEC in promoting awareness
are: (a) maintaining a public online database of domestic legislation implementing ASEAN
instruments; (b) organising roundtable meetings, conferences and seminars on related ASEAN
instruments and their implementation; and (c) formulating toolkits for implementation of
certain ASEAN instruments. The extent to which ALA can carry out these activities will
depend on the extent of funding that ALA is able to secure for these projects.
(i) Public online database of domestic legislation implementing ASEAN instruments
8. ALA and/or ALI could maintain a public online database of the domestic instruments
enacted in each AMS pursuant to the relevant ASEAN instruments. The online database should
contain the text of the domestic instrument and where possible, be accompanied with an
English translation. The rationale for such an initiative is that it provides ready access to
persons (corporations included) who may have strategic interests in ASEAN. This in turn,
3 Lee Seiu Kin J, “ALA at the Crossroads”, (Report presented at the 39th Governing Council Meeting), 25 March
2017 (“ALA at the Crossroads”) at 5.
4 Many of these papers have been republished on ALA’s website, located at
<https://www.aseanlawassociation.org/speechespub-country.html>.
5 ALA at the Crossroads at 9.
2
could serve as a soft “nudge” to AMS who have yet to enact the necessary legislation, and
perhaps to also facilitate AMS modelling their implementation legislation on each other’s.
(ii) Organising roundtable meetings, conferences and seminars
9. ALA/ALI could organise conferences and seminars on topics related to ASEAN
instruments and their implementation. The purpose would be to galvanise conversations about
these topics among ASEAN legal professionals. The papers presented at these conferences and
seminars may then be published to reach a wider audience and suggestions may come from
interested stakeholders within and without the AMS, which can then be channelled to the
relevant AMS for their consideration or action.
10. In this vein, it is noted that the Consultation on a Rules-Based ASEAN: Process of
Forging Legal Instruments held in Singapore from 16 -17 May 2018, had covered topics such
as best practices in concluding treaties, and ASEAN practices and lessons from other fora in
negotiating agreements. It is vital that there is concrete follow up action taken by AMS upon
the sharing of such best practices, which can only conduce towards the eventual effective
implementation of ASEAN instruments. ALA/ALI can work with ASEC on any follow-up
action where appropriate.
(iii) Formulating toolkits for specific implementation of certain ASEAN instruments
11. The breadth and depth of legal brainpower across the government, the private sector,
and academia is unique to ALA and is not found in any other organisation in ASEAN.6 This
diversity and collective experience puts ALA in a good position to assist ASEC in raising
awareness, and should be exploited to its full potential.
12. If specific challenge(s) for a particular ASEAN legal instrument can be identified where
assistance in the enactment of domestic legislation by AMS would be beneficial, then
ALA/ALI could prepare toolkits that contain the relevant guidance on implementation. It is
envisaged that such toolkits could be similar to legislative guides published by United Nations
Commission on International Trade Law (“UNCITRAL”).
3
6 ALA at the Crossroads at 9.
13. If this initiative is pursued, ALA welcomes any input from ASEC as to which ASEAN
instruments it should focus on in developing a toolkit. If there are no such instruments
identified, there are two possible approaches towards identifying instruments to develop a
toolkit for. The first could be to focus on up to three ASEAN instruments with one from each
of the following categories: (i) an established instrument which has already seen substantial
progress in implementation, in order that this may serve as an encouraging “success story”, and
the resulting toolkit used as a precedent for similar instruments where relevant; (ii) an
established instrument which has not seen much progress in compliance, in order that
difficulties faced by the relevant AMS may be identified and hopefully overcome; and (iii) a
new instrument which AMS are only just starting to implement so that other AMS can glean
lessons from those AMS who have so implemented it or are nearly completing it.
14. A second approach is for particular economic instrument(s) to be chosen, given that
there is already a wealth of data available on the progress of fulfilling ASEAN economic
objectives, and comparative development and progress made in the ASEAN Economic
Community (“AEC”).7 There is also an urgency for ASEAN to achieve its goals under the
AEC. An economic instrument might thus be a suitable starting point to develop a toolkit.
15. ALI should be suited to the task of preparing these toolkits. Alternatively, or in
conjunction with ALI, ALA could tap onto the National Committees for their expertise to
develop the necessary toolkits. Collaborations with research institutes that specialise in
ASEAN matters such as the Centre for International Law at the National University of
Singapore, Chulalongkorn University, University of the Philippines, and University of
Indonesia, can also be explored.
IV. Conclusion
16. ALA is prepared to work with ASEC in any of the areas identified above, so as to assist
ASEC in promoting awareness of ASEAN legal instruments and their implementation across
AMS and ultimately achieve the goal of full compliance by all AMS.
7 Faith Delos Reyes, “Broadening Stakeholdership for a Rules-Based ASEAN: Reporting National-Level
Implementation of ASEAN Instruments”, Discussion Paper for “Consultation on a Rules-Based ASEAN: The
Process of Forging Legal Instruments”, 16-17 May 2018, Singapore at 5.
4
Submitted by:
ASEAN Law Association (Singapore)
21 March 2019
5
ALA CONCEPT NOTE
ESTABLISHING A “PANEL OF EXPERTS”
I. Introduction
1. This concept note explores how the ASEAN Law Association (“ALA”) may support
the ASEAN Secretariat (“ASEC”) by way of a Panel of Experts that ASEC may consult in
specific legal areas. At the call on the ASEAN Secretary-General by the ALA President on 12
March 2019, the Secretary-General requested assistance in the area of dispute resolution
mechanisms in the ASEAN Charter as well as in various ASEAN Legal Instruments. It is
therefore proposed that a Panel of Experts be constituted to advise on ASEAN dispute
resolution mechanisms.
II. Background
2. One of the fundamental strengths of ALA as an organisation is its diverse and
widespread membership: it consists of influential members of the judicial and executive bodies
of the governments, prominent members of the Bar, and thought leaders from law schools
across ASEAN. As a result of this, ALA has the potential to tap on its diversity and collective
experience to convene a “panel of experts” in relation to various subject areas.
3. The use of Expert Panels is not new to ALA/ASEAN. In 20 September 2014, at the
ALA 36th Governing Council Meeting and Meeting of Standing Committees in Kuala Lumpur,
Malaysia, the Governing Council endorsed a proposal to establish a panel of “expert lawyers”
in each ASEAN country who would provide legal representation, pro-bono or for a nominal
fee, to nationals/permanent residents of other ASEAN Member States (“AMS”). Another
instance in which a “panel of experts” was deployed was to combat Transboundary Haze
Pollution in 2015. At the 2015 ALA General Assembly in Manila, it was noted that an ASEAN
Panel of Experts on Fire and Haze Assessment and Coordination had been deployed to facilitate
cooperation and coordination to manage the impact of land and forest fires, and the resulting
haze pollution.
4. Various ASEAN legal instruments make various provisions for dispute resolution.
Article 24 of the ASEAN Charter provides that disputes within specific instruments are to be
1
resolved through the mechanisms provided in such instruments or in accordance with the
Treaty of Amity and Cooperation in Southeast Asia or the 2004 ASEAN Protocol on Enhanced
Dispute Settlement Mechanism. Article 25 of the Charter calls for the establishment of
appropriate dispute resolution mechanisms for disputes concerning interpretation or
application of the Charter or ASEAN instruments, pursuant to which the Protocol to the
ASEAN Charter on Dispute Settlement Mechanism was concluded in 2010.
III. Overview of challenges in relation to dispute resolution mechanisms
5. In H.E. Mr. Krit Kraichitti’s paper on “Dispute Settlement Mechanisms for ASEAN
Community: Experiences, Challenges and Way Forward” presented at the 12th ALA General
Assembly in Manila, Philippines in 2015, it was observed that AMS still prefer to utilise non-
ASEAN dispute resolution mechanisms such as those of the World Trade Organisation
(“WTO”) and International Court of Justice (“ICJ”).
6. In this regard, several challenges were identified in the use of ASEAN dispute
resolution mechanisms in the AMS. Of these challenges identified, one key one was the “lack
of legal certainty and legal experts” in ASEAN to advise on the use of these relatively novel
legal instruments. In comparison with the WTO dispute resolution mechanism which has been
in use since 1995, ASEAN dispute resolutions mechanisms have only been in existence since
2004 and 2010.
IV. Expert Panel Terms of Reference
7. These are some proposed roles and responsibilities for the Panel of Experts:
a) Advise ASEC and ALA on the specific dispute settlement mechanisms in the
ASEAN legal instruments, in particular ASEAN economic agreements;
b) Assist ASEC, on a request basis, to support the Advisory Panel to assist AMS on
matters relating to the adoption and implementation of the UNCITRAL Model Law
on International Commercial Arbitration under the ASEAN Law Ministers’
Meeting (ALAWMM);
2
c) Advise ASEC and ALA on the obstacles faced by AMS in the use of ASEAN
dispute settlement mechanisms as well as offer proposed solutions to these
obstacles;
d) Assist in promoting the awareness of ASEAN dispute resolution mechanisms as
opposed to international mechanisms such as those under the WTO and ICJ;
e) Assist in reaching out to the organisations from which these experts originate to
popularise the use of ASEAN dispute settlement mechanisms; and
f) Contribute to expert roundtable discussions on ASEAN issues with various ASEAN
stakeholders.
V. Composition of Panel of Experts
8. The Panel of Experts could consist of individuals from research institutions (which may
include law schools and institutions within law schools) who are experts that focus on
international dispute resolution mechanisms. ALA could draw up a list of members with this
particular specialisation from research institutions across ASEAN. The Panel could also
include leading members of the judiciary and prominent members of the Bar who are subject-
matter experts in the use of international dispute resolution mechanisms. It would be helpful if
these individuals have expertise in ASEAN legal matters as well.
9. It is hoped that the Panel of Experts would be a pan-ASEAN one drawn from all AMS
with a view to adequate representation not only from as many states as possible, but also
achieving a good balance of civil and common law representation.
VI. Expert Panel Meetings
10. The Panel of Experts will be invited to ALA’s triennial General Assemblies and annual
Governing Council meetings for them to exchange ideas and information. These members can
also meet with ALA members through various ad hoc events, including dialogues and training
sessions involving judiciaries of different AMS, and the seminars and workshops that are
occasionally organised by individual ALA National Committees.
3
11. Aside from that, it is suggested that the Expert Panel conduct its own meetings annually.
The designated chairman of the Expert Panel will decide on the specific agenda of the meeting
and circulate the points of discussion before the meeting takes place. The meeting could also
consist of the presentation of various proposals and a reflection and critique by the experts of
these proposals. In subsequent meetings, the Panel of Experts can follow up on the policy
proposals made in the earlier meetings.
12. To reduce costs and increase rates of attendance, the bulk of the deliberations of the
panel could be carried out by email, e-meetings and teleconferences. Physical meetings could
be held alongside ALA events such as ALA Governing Council meetings, ALA General
Assembly and conferences.
VII. Conclusion
13. ALA will work together with ASEC in refining the Terms of Reference stated above at
[7]. Eventually, it is hoped that Panels of Experts can be constituted and deployed in relation
to other subject areas, including competition law, intellectual property law, and consumer
protection.
Submitted by:
ASEAN Law Association (Singapore)
21 March 2019
4
ALA CONCEPT NOTE
PROMOTING LEGAL CONVERGENCE IN THE AREA OF ENFORCEMENT OF
JUDGMENTS AND ARBITRATION AWARDS
I. Introduction
1. This concept notes explores how the ASEAN Law Association (“ALA”) can work with
the ASEAN Secretariat (“ASEC”) to promote legal convergence in the area of
enforcement of judgments and arbitration awards.
II. Background
2. Legal convergence in ASEAN has been a stated objective of ALA at the outset. At the
1st ALA General Assembly meeting held in Manila, one of the key objectives of ALA
was “the study of and research in the laws of the ASEAN countries with a view to
harmonising those laws as required by the social and economic development of the
ASEAN region”.1
3. An outstanding example of legal convergence is the New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards of 1958 (“New York
Convention”), which significantly enhanced the cross-border enforceability of arbitral
awards. ASEAN has been a part of this international convergence effort: to date, some
149 jurisdictions are parties to it, including all ten ASEAN states. A majority of ASEAN
states have adopted the UNCITRAL Model Law on International Commercial
Arbitration (“UNCITRAL Model Law”).
4. However parties occasionally encountered difficulties with the operation of the New
York Convention. At the 2009 ALA General Assembly in Hanoi, Professor Lawrence
Boo of Singapore proposed an “ASEAN Protocol on Enforcement of Awards”2 to counter
the inconsistent application of the New York Convention across ASEAN. It was noted
that some of the cases that were decided in one ASEAN jurisdiction were decided
altogether differently in another jurisdiction. This protocol was proposed to supplement
the existing New York Convention in several respects. For instance, the protocol would
incorporate guidelines for the enforcement of interim measures and standardise the
1 Article 2.1(b)(i) of the ALA Constitution.
2 Lawrence Boo, Enforcement of Foreign Awards: A Suggestion for an ASEAN Protocol on Enforcement of
Awards (available online at http://www.aseanlawassociation.org/10GAdocs/Singapore.6.pdf)
1
method of authentication and certification of awards. Thus, the Protocol sought to plug
existing “gaps” in the implementation of the New York Convention across various
ASEAN states.
5. This proposal by Professor Boo was subsequently adopted by the Governing Council and
submitted to the ASEAN Senior Law Officials Meeting (“ASLOM”). During his call on
the ASEAN Secretary-General in Jakarta on 12 March 2019, the President of ALA was
informed that the ASLOM had invited ALA to make a presentation ALA’s proposed
Guidelines on Best Practices in the Enforcement of Arbitral Awards at its next meeting
in 2020.
III. Proposal
6. While implementing a Protocol to plug existing “gaps” in the implementation of the New
York Convention is one way of promoting legal convergence across ASEAN, more can
be done.
a. Identifying the “gaps” in other Conventions
7. As suggested by David Rivkin, the former president of the International Bar Association
and a long-time member of the American Law Institute, the best way to promote legal
convergence is to focus on both soft law instruments as well as international conventions
and model laws.3
8. While Professor Boo has attempted to study the “gaps” in implementation of the New
York Convention across ASEAN member states and proposed solutions, this can and
should also be done for other international conventions, for e.g., the UNCITRAL Model
Law. With a majority of ASEAN Member States (“AMS”) signatories to the Model Law,
it might be fruitful to embark on a study identifying similar “gaps” in the UNCITRAL
Model Law with a view to harmonising their implementation across ASEAN.
b. Promoting the implementation of the new Convention
9. In December 2018, the United Nations General Assembly passed a resolution to adopt
the United Nations (UN) Convention on International Settlement Agreements to promote
the enforceability of mediated settlements. The signing ceremony for this convention is
scheduled to be held in Singapore on 7 August 2019. This Convention seeks to capitalise
3 CJ Menon, President of ALA (Speech delivered at the Gala Dinner of the 13th General Assembly of ALA).
2
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