THE DEVELOPMENT OF THE ASEAN TRADE DISPUTE SETTLEMENT MECHANISM: FROM DIPLOMACY TO LEGALISM KOESRIANTI

In the late twentieth century international trade moved from a political multi-polar system based on the nation-state to a system featuring unified regional trading regimes. An inevitable feature of increased cooperation through bilateral, regional and international arrangements is the emergence of disputes over the interpretation and implementation of the agreed upon commitments. Accordingly, reliable mechanisms for the settlement of trade related disputes have become necessary to ensure the effective and continued functioning of these arrangements. Over the years these dispute settlement mechanisms have evolved from the relatively simple, diplomacy based structures called for in the GATT, to the...
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THE DEVELOPMENT OF THE ASEAN TRADE DISPUTE SETTLEMENT MECHANISM: FROM DIPLOMACY TO LEGALISM KOESRIANTI THE DEVELOPMENT OF THE ASEAN TRADE DISPUTE SETTLEMENT MECHANISM: FROM DIPLOMACY TO LEGALISM KOESRIANTI   THE DEVELOPMENT OF THE ASEAN TRADE DISPUTESETTLEMENT MECHANISM: FROM DIPLOMACY TO LEGALISM KOESRIANTIA thesis submitted in accordance with the requirements for the award of the Degree of Doctor of Philosophy, Faculty of Law, University of New South Wales 2005 ABSTRACT In the late twentieth century international trade moved from a political multi-polarsystem based on the nation-state to a system featuring unified regional trading regimes. Aninevitable feature of increased cooperation through bilateral, regional and internationalarrangements is the emergence of disputes over the interpretation and implementation ofthe agreed upon commitments. Accordingly, reliable mechanisms for the settlement oftrade related disputes have become necessary to ensure the effective and continuedfunctioning of these arrangements. Over the years these dispute settlement mechanismshave evolved from the relatively simple, diplomacy based structures called for in theGATT, to the detailed, legalistic, adjudication based mechanism found in the WTO.Bilateral and regional initiatives, such as NAFTA and MERCOSUR, as well as the EU,have similarly adopted dispute settlement mechanisms which adopt, in varying degrees,legalistic adjudicatory processes. Since 1967 ASEAN has spearheaded the creation of aregional trading bloc in the South East Asian region. As in other trading blocs, this hasinevitable led to the need to develop effective and workable dispute settlementmechanisms. This thesis examines the development of trade dispute settlement mechanisms inASEAN tracing its development from a model based on pragmatic diplomacy to a legalisticadjudicatory system with particular reference to the ASEAN context. It examines theextent to which the ASEAN context has influenced the content and the adoption of tradedispute settlement mechanisms in the region, as well as the extent to which the recentlyadopted 2004 Enhanced Protocol on Dispute Settlement can adequately address tradedisputes in the region while remaining sensitive and responsive to the ASEAN context. Based on a comparative examination of dispute settlement mechanisms in othertrade agreements, a range of key procedural issues are identified and examined with a viewto identifying the prospects and challenges which ASEAN faces in the implementation ofits dispute settlement mechanism. The thesis analyses the prospects and challenges ofimplementation the 2004 Enhanced Protocol on DSM. II Acknowledgements I acknowledge my gratitude to my supervisors, Associate Professor RosemaryRayfuse and Mr Bryan Mercurio for their encouragement, patience and invaluableguidance. Also, I would like to thank the following: Professor David Dixon, AssociateDean (Research) and Mr Angus Corbett, Associate Dean (Coursework) of the Law Facultythe University of New South Wales for their support during the writing of my thesis; KerryDaley, Dawesh Chand, Gaha Reef, Annabel Sutherland, Tony Antoniou, and Reg Potter fortheir assistance on administrative and IT support: Emily McCarron and Nikki Chong fortheir assistance in proof reading this thesis; Mr Smara Dahana for information on ASEAN. I also thank Mr Machsoen Ali, Dean of the Law Faculty of the Airlangga Universityand his staff for their support during my study; my friends, Laylee Tang, Dan Svantesson,Robin Huang, Marie Ange, Scot Calnan, Cathy Hunter and Cassandra Goldie for makingthe Julius Stone PG room like home. I wish to record my gratitude to my friends, includingbut not limited to, Umi, Maria and Sony, Diah, Zaafri and Ayu, Made Andi, Srie andRichard, Nurul and Yudi, and Nestri for their support in making my stay in Sydney as aPhD student as enjoyable and lively as possible. Thanks also go to my friend DinaSunyowati and my sisters and brothers, in particular, my sister Tri Andjarwati for their helpwhile I was away from home. Finally, special thanks go to my beloved husband, SaiffudinZuhri and my inspiring children, Andin and Avi who have supported me throughout mystudy. They are everything to me. IIIABSTRACT............................................................................................................. IIACKNOWLEDGEMENTS ...................................................................................... IIIFIGURES ................................................................................................................XFLOWCHART .........................................................................................................XAPPENDICES .........................................................................................................XLIST OF SELECTED ABBREVIATIONS ...............................................................XITABLE OF CASES ..............................................................................................XIIIASEAN TIME LINES........................................................................................... XVITABLE OF TREATIES AND DECLARATIONS................................................. XVIIINTRODUCTION..................................................................................................... 1FORMULATION OF THE PROBLEM ..................................................................................................... ...