In Light of Private International Law: The Legal-Security Challenges of ASEAN Community

Association of Southeast Asian Nations (“ASEAN”) has just celebrated its 44th birthday in August this year.[1]

The present day ASEAN is substantially different with ASEAN that was declared forty three years ago in Bangkok, Thailand (“Bangkok Declaration).[2] ASEAN has tardily emerged to be more than a regional forum, but towards a more integrated and interconnected community of Southeast Asian nations.

As it was articulated by the five foreign ministers of founding countries in Bangkok Declaration, ASEAN was contrived with the hope and spirit that it would help to bring about a Southeast Asian region of peace, freedom, and prosperity for the people in the region.[3] This noble spirit then accentuated by the Head of Governments of ASEAN member countries in the Declaration of ASEAN Concord II (“Bali Concord II”) took place in Bali, on October 7 2003.[4] 

The Bali Concord II enshrined the commitments of ASEAN member countries, which among others, the commitment to constitute an ASEAN Community comprising of three pillars, namely political and security cooperation, economic cooperation, and socio-cultural cooperation.[5]This commitment is then strengthened by the creation of blueprints of the respective pillars, known as ASEAN Political-Security Community Blueprint (“APSCB”),[6] ASEAN Economic Community Blueprint (“AECB”),[7] and ASEAN Socio-Cultural Community Blueprint (“ASCCB”).[8]

Therefore, Southeast Asian integration is not merely about building a common market or economic integration but also embrace the political-security, as well as, the socio-cultural integration within the region. Broadly observed, this model of integration and interconnectivity connotes three features of ASEAN Community.

First, the ASEAN Community will figures an architecture of a political-linkage regulations among member countries channeled through ASEAN. Second, the ASEAN Community is designated to project and implement the shared values and norms within the region. Third, the interconnectivity of ASEAN Community will ascertain the free flow of goods, free flow of services, free flow of investment, free flow of capital, and the free flow of skilled labour among ASEAN member countries (“free flows”).[9]

The determination to quest for a regional integration brings with it the promise of bright future for the region together with the inevitable challenges to be resolute with.[10] As the free flows of goods, services, capital, investment, and skilled labour will be institutionalized through the creation of ASEAN Community, potential problems relating to legal matters are worth to be rigorously discerned.[11]

One of the legal problems is the necessity to harmonize ASEAN Private International Law,[12]for the free flows of goods, capital, services, investment, and skilled labour within the ASEAN community is potentially creating a domestic problem in civil and commercial matters having international dimension.[13] Such conflict will render judicial cooperation mechanism within ASEAN region to become imperative.

The objectives of this paper are twofold. First, to analyze the necessity of harmonizing the rules of private international law within the ASEAN Community’s framework. Second, to seek out the appropriate model of judicial cooperation in field of private international law in order to achieve and ensuring legal security in the free flows process.

Private international law and the necessity to harmonize it in an ASEAN Community

The area of law known as private international law, or the conflict of laws, addresses three kinds of problem which arise, in connection with legal relationships governed by private law, where a factual situation is connected with more than one country.[14]

Rules of private international law may conveniently be referred to as ‘conflict rules’. Such a situation may arise from the connections of persons, of acts or events, or of property involved. Thus relevant connections may include an individual’s domicile, residence, or nationality; the place of incorporation, or the location of the headquarters, or of a branch, of a company; the place of conclusion or performance of a contract; the place where an accident giving rise to a tort claim occurred; or the location of property.[15]

Three kinds of problem are dealt with by conflict rules. They relate to direct jurisdiction; to choice of law; and to foreign judgments. Rules on direct jurisdiction define the circumstances in which the courts of one country are competent, and should be willing, to entertain proceedings in respect of disputes which have some connection with another country. Such rules are applicable by a court for the purpose of determining its own jurisdiction to entertain proceedings instituted before it.[16]

Rules on choice of law select from the connected countries the one whose law is to supply the substantive rules to be applied in determining the merits of the dispute. Rules on foreign judgments define the circumstances in which a judgment given by the court of one country is to be recognized or enforced in another country.[17]

In the modern world, every country having a developed legal system has its own set of conflict rules, which form part of its private law. Such rules differ from one country to another, and these differences tend to undermine the purposes of the rules. For such purposes include the achievement of legal security (by way of certainty, predictability and uniformity of results, regardless of which country’s courts are involved) for the persons involved. Like any other rules of a country’s private law, its conflict rules may be harmonized with those of other countries by means of international treaties.[18]

As ASEAN is propelling towards the creation of ASEAN Community by the year of 2015, it obviously clear that the free flows of goods, services, capital, investment, and skilled labour are also present legal challenges as well as latent problems for there are possibilities of domestic conflict having international character caused by the free flows. Hence, to achieve and ensure certainty, predictability and uniformity of results, harmonization of private international law rules within Southeast Asian region is mandatory.

Model of harmonization for ASEAN Community: Lessons from European Union

 As a comparison, the model of harmonization of private international law in Europe is worth to be briefly observed.

Institutional changes in European union is not only take place through host of processes, such as intergovernmental treaty negotiations, parliamentarian policy agenda setting and policy development by commissions, but also resulted from the interaction between law, politics, and society.[19]

European legal integration itself was marked by the creation of European Court of Justice (“ECJ”).[20] The creation of ECJ had inexorably transformed the European Community (“EC”),[21] since domestic courts were “forced” to adjust with the policies or judgements of the ECJ.[22] Thus, the institutional changes as well as the legal integration in the EC took place in two ways. First, it is happened at the intergovernmental level and commissions. Second, it is the product of long practices of interaction among judicial bodies, societies (private litigants), and governments. The harmonization of private international law in Europe took place in both ways.

As elaborated before, legal integration in the EC started by the time of the creation of ECJ, while at the other hand, the harmonization process were actually has taken place for more than five decades before the ECJ was established, it is when the Hague Conference of International Law was formed in 1893.[23] Major conventions such as, among others,Convention on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters(known as the Brussels Convention), and Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (known as the Hague Evidence Convention) also plays role in supporting the harmonization process.

However, after the entry into force of the Amsterdam Treaty[24] harmonization of private international law mostly achieved by measures adopted within the framework of the European Community.[25]

This brief history of harmonization of private international law rules in the Europe gives a comprehension that there have grown a strong and mature tradition of judicial cooperation in the field of private international law rules among most of countries in Europe. This strong and mature tradition develop and adjusting itself with the evolution of European Community.

While in the case of Southeast Asian region, there are no firm and continuous tradition of judicial cooperation in the field of private international law rules among the countries of the region. However, a strong and continuous tradition of judicial cooperation in the field of private international law, is not a conditio sine qua non or the sole element for a secure environment of free flows within the ASEAN Community. Modifications of ASEAN’s legal instruments can provide the necessary options as to what kinds of judicial cooperation in the field of private international law that is need for the region.

Harmonization as an important matter for ASEAN Community and for Indonesia’s national interest

 My proposal upon the model of harmonization is that the governments of ASEAN’s member countries need to bring the issue of harmonization of private international law rules in the region, to be the center of attention of judicial organs of respective member states’ and academicians of relevant fields, as well as involving relevant civil societies in the region.

This mechanism is needed before making the issue of harmonization as an agenda at the intergovernmental level, for ASEAN Community is a community aimed at people centered and people driven community.

Concerning the Indonesia’s national interest, Indonesia, as the largest, the most populated, and as the only country with enormous natural resources in the region together with its diverse cultures and potentials, is obviously will be the destination country once the free flows takes place.

This will present Indonesia with tremendous opportunities and at the same time also present Indonesia with potential problems of legal security which arising out of the free flows once the ASEAN Community started.

Therefore, it is in the national interest of Indonesia to make the agenda of harmonization upon the rules of private international law in an ASEAN Community to become successful.

[1] The establishment of ASEAN as a regional organization was declared by five foreign ministers of founding countries on 8 august 1967 in Bangkok, Thailand. The five sponsoring countries are Indonesia, Malaysia, Thailand, Singapore, and the Philippines which were respectively represented by Adam Malik, Tun Abdul Razak, Thanat Khoman, S. Rajaratnam, and Narciso R. Ramos.

[2]  After more than four decades, without becoming complacent of its remarkable achievements, ASEAN can be proudly presented as a successful story of regional integration in the Asia-Pacific region, thus, proved that the resurgence of regional integration is not confined to Europe alone. Jens Uwe-Wunderlich, Regionalism, Globalisation and International Order: Europe and Southeast Asia, (Burlington: Ashgate Publishing Company, 2007), pg. 1.

[3] The Bangkok Declaration of 1967, point number Fifth, “…that the Association represents the collective will of the nations of South-East Asia to bind themselves together in friendship and cooperation and, through joint efforts and sacrifices, secure for their peoples and for posterity the blessings of peace, freedom and prosperity” The text of Bangkok Declaration can be accessed in this address last visited on Saturday, August 12, 2011.

[4] The text of Declaration of ASEAN Concord II can be accessed in this address last visited on Saturday, August 12, 2011.

[5] Bali Concord II, article 1. Article 1 stipulates, “An ASEAN Community shall be established comprising three pillars, namely political and security cooperation, economic cooperation, and socio-cultural cooperation that are closely intertwined and mutually reinforcing for the purpose of ensuring durable peace, stability and shared prosperity in the region

[6]  The text of APSCB can be accessed in this address last visited on Saturday,  August 12, 2011.

[7]  The text of AECB can be accessed in this address last visited on Saturday, August 12, 2011.

[8]  The text of ASCCB can be accessed in this address last visited on Saturday, August 12, 2011.

 [9] The free flows of goods, services, investment, capital, and skilled labour are enunciated respectively in Section A.1. (Free Flow of Goods), Section A.2. (Free Flow of Services), Section A.3. (Free Flow of Investment), Section A.4. (Free Flow of Capital), and Section A.5. (Free Flow of Skilled Labor) of the AECB.

[10]  Regional integration serves as an example of globalization and almost every discourse or study presents globalization as a set of economic flows, as a complex of information and knowledge linkages, and as a network of migration between countries and regions. In turn, these flows affect countries and communities in differential ways. These flows are mediated by the actions of governments and by the level of incorporation of the communities and countries into a globalized world. See: John O’Loughlin and Lynn Staeheli (Ed), Globalization and Its Outcomes, (New York: The Guilford Press, 2004), pg. 3 – 4; Joseph E. Stiglitz, Making Globalization Work, First Edition, (New York: W. W. Norton & Company, 2006), pg. 4.

 [11] In one of his lectures, Boer Mauna argued that the advance and complex development of a society present new challenges, especially those relating to new legal problems. Hence, the complexities of a society will go hand in hand with the normative expansion of legal norms to the society concerned. He termed this situation as an Era of Normative Expansion.

 [12] Private International Law can be defined as,

 “ …  keseluruhan peraturan dan keputusan hukum yang menunjukkan stelsel-hukum manakah yang berlaku atau apakah yang merupakan hukum, jika hubungan-hubungan dan peristiwa-peristiwa antara warga (warga) negara pada satu waktu tertentu memperlihatkan titik-titik pertalian dengan stelsel-stelsel dan kaidah-kaidah hukum dari dua atau lebih negara”

 the rules and court decisions which designate the applicable law or the law of a given circumstances, if in a given circumstances concerned the legal relations and events among nationals in a given period of time, showing points of contacts with more than one legal systems of two (or more) countries (unofficial translation)

See: Sudargo Gautama, Pengantar Hukum Perdata Internasional Indonesia, Fifth Edition, (Bandung: Binacipta, 1987), pg. 21.

 [13]  Not every legal problem in the field of civil and commercial matters can be classified as problem of private international law. Only those problems with international dimensions, such as dispute concerning sale-purchase agreement of two (or more) persons with different nationalities, that can be classified as problem of private international law. The determination of whether a problem is a problem of private international law or not, will affect the determination of which law applicable in the dispute concerned.

[14] Peter Stone, EU Private International Law: Harmonization of Laws, (Cheltenham: Edward Elgar Publishing, 2006), pg. 3.

 [15] Ibid.

 [16] Ibid., pg. 4.

 [17] Ibid.

 [18] Ibid.

 [19] Rachel A. Cichowski, The European Court and Civil Society: Litigation, Mobilization, and Governance, First Edition, (New York: Cambridge University Press, 2007), pg. 6.

 [20] Alec Stone Sweet, Judicial Construction of Europe, First Edition, (New York: Oxford University Press, 2004), pg. 1.

 [21] European Community (“EC”) can be perceived as a political system empowered with judicial, executive, and legislative powers. Successive treaties and treaty reforms, such as, the Treaty of Paris in 1952 (establishing the European Coal and Steel Community), the Treaty of Rome in 1958 (establishing the European Economic Community and the European Atomic Energy Community), the Single European Act in 1987, the Maastricht Treaty in 1993 (the Treaty on European Union), the Amsterdam Treaty in 1999, the Nice Treaty in 2003 and the ‘Constitutional Treaty’ (signed in June 2004), contribute to the empowerment of the aforementioned powers of EC. However, EC is not a state since it does not have a monopoly on the legitimate use of coercion. As a result, the EU is not a ‘state’ in the traditional Weberian meaning of the word. The power of coercion, through police and security forces, remains in the hands of the national governments of the EU member states. See: Simon Hix, The Political System of the European Union, Second Edition, (New York: Palgrave Macmillan, 2005), pg. 3; Wolfram Kaiser (Ed), The history of the European Union: Origin of a trans- and supranational polity 1950-72, First Edition, (New York: Routledge, 2009), pg. 1.

 [22] Sweet, op. cit.

 [23] The Hague Conference on Private International Law (“HCCH”) is the preeminent organisation in the area of private international law. HCCH was formed in 1893 to “work for the progressive unification of the rules of private international law”. It has pursued this goal by creating and assisting in the implementation of multilateral conventions promoting the harmonisation of conflict of laws principles in diverse subject matters within private international law. Sixty-eight nations are currently members of the Hague Conference, including China, Russia, the United States, and all member states of the European Union (the European Union itself is also a member of the Conference, so the total number of members is listed as 70 on the HCCH’s website). This information can be accessed in this address and visited on Monday, August 14 2011.

 [24] “The Treaty of Amsterdam amending the Treaty of the European Union, the Treaties establishing the European Communities and certain related acts,” commonly known as the Amsterdam Treaty, was signed on 2 October 1997, and entered into force on 1 May 1999; it made substantial changes to the Treaty on European Union, which had been signed at Maastricht in 1992. The major implication brought by this treaty to the EU is that the formulation of rules concerning private international law to the member states takes form in regulations and not in conventions anymore.

  [25] Stone, op. cit., pg. 4.

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