Friday, July 1, 2011

Trade Remedies as an Example for AEC Administration

Earlier this week I participated in a Malaysian government hearing on the proposed imposition of safeguard measures on hot-rolled steel in coils (my client supports imposition).  The hearing was an all-day affair, with vigorous arguments from both sides and lawyers from Malaysia, Singapore, the U.S., Australia, Taiwan and Indonesia presenting economic and legal arguments in support and in opposition to the proposed measures.  The scene could have taken place during my first trade remedy litigation case, the massive 1992-93 U.S. antidumping and countervailing duty investigations on steel from 20+ countries. 

Trade remedies are part of the AEC, incorporated into national legislation and the various FTAs signed by ASEAN.  The trade remedies process demonstrates how ASEAN government authorities can and should interact with the private sector in the administration and implementation of the AEC.   In trade remedies, issues about sovereignty are relaxed, with ASEAN government officials routinely crossing borders to conduct investigations.  ASEAN trade ministries conduct hearings with input from the private sector and its representatives, adhering to WTO and domestic obligations of fairness and transparency. Trade remedy procedures result in the application of measures whose implementation can be monitored.  Trade remedy procedures also allow for dispute resolution and judicial or administrative appeal. 

These aspects of trade remedies --- feedback, implementation and dispute resolution – are not as well developed in other aspects of the AEC.  For example, disputes regarding the ASEAN Trade in Goods Agreement (ATIGA), even though involving issues similar to those involved in trade remedies, have less transparency and offer less opportunity for public-private sector interaction.  Nor do private sector participants have the right to seek dispute resolution.  These difficulties arise from the greater concerns regarding national sovereignty and historical norms of transparency, which the ASEAN members have overcome in the area of trade remedies but not elsewhere.

Thus, the AEC needs more hearings, more rule of law and more transparency.  The AEC needs less resistance on sovereignty issues.  In trade remedies, ASEAN members have demonstrated that they can work on such a basis and they should apply the lessons learned from the administration of trade remedies to other aspects of the AEC.