Last week FT.com had a piece
on how the
“hodge podge” of legal systems in Southeast Asia frustrated ASEAN integration. The author noted that the legacies of
colonial and other influences from English, French, Soviet, Dutch and German
legal systems retarded ASEAN economic integration (but the author omits the
influence of the Spanish legal system in the Philippines). The article also noted the purported unprecedented formation this
month of a Singapore-based alliance of law firms in the major jurisdictions in
ASEAN (although it seemed to overlook a
similar Malaysia-based alliance of law firms established in 2011).
Having worked as co-counsel
or opposing counsel with both of the lead firms
in these Asian law firm alliances, I have no doubt that increased
cooperation among law firms can work to relieve some of the inconsistencies and
obstacles that result from the diversity of legal systems in ASEAN.
However, the article
neglects to discuss other ways that regional economic blocs have established to
deal with divergent legal systems. After
all, the FT’s home country, the United Kingdom, is part of the European Union
(EU), and the various legal systems noted in the FT article also originated in
the EU (or otherwise in Europe, in the case of the Soviet legal system). Yet somehow these differences do not seem to
present the “hodge podge” of obstacles that exist in ASEAN.
The reason, of course, is
that the EU has a well-developed system of regional institutions such as the
Commission, Court of Justice and the like, all based on a cohesive theory of EU
law that evolved since the Treaty of Rome.
NAFTA similarly has had to deal with divergent bases of law (English,
French and Spanish) but being based on a very detailed treaty and having a
robust dispute resolution system, that bloc also has been able to deal with its
legal diversity.
In other words, diversity of
legal systems need not be a barrier to economic integration, if the regional
bloc determines to adopt robust institutions and/or dispute resolution. Perhaps the FT.com article elected not to
address this issue because ASEAN currently has decided to do neither, but that
does not excuse this oversight. In any event, if the ASEAN Economic Community is
to thrive, ASEAN’s leaders need to deal with these institutional and
foundational deficiencies.
