Koesrianti (2017) Legalization and Adjudicative Legitimacy of the ASEAN Trade Dispute Settlement Mechanism. Comparative Law Review, 8 (2). pp. 723-749. ISSN 2038-8993

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Abstract

ASEAN has adopted the ASEAN Charter in 2008, which designed ASEAN as a ‘rule-based’ organization. The Charter legalized all of ASEAN’s principles, agreements, and co-operations and they became legally binding commitments. After nearly a decade since the adoption of the Charter, ASEAN Member Countries (AMCs) still put state sovereignty as a higher priority than organization interests in some areas of co-operation as agreed in the ASEAN Blueprints. As consequence, the fulfillment of measures of AEC Blueprint 2015 had not completed yet in December 2015 as agreed deadline. This article argues that legalization of ASEAN has failed. It discusses the ASEAN Economic Community Blueprints (2009 and 2015) as a strategic tool to achieve the ASEAN vision as well as a legalized model in achieving the ASEAN Community in 2025. It examines whether ASEAN will continue to avoid legalization, especially in implementing a trade dispute settlement mechanism even though the Charter stated that “disputes which concern the interpretation or application of ASEAN economic agreement shall be settled in accordance with the ASEAN Protocol on Enhanced Dispute Settlement Mechanism 2004”. It examines other regional organizations, such as the European Union and North American Free Trade Area, as closer examination of other regional variation allows a better understanding of the benefits and cost of legalized institutions in sustaining co-operative and predictable outcomes for both governments and private agents.This article also observes the WTO dispute resolution mechanism since ASEAN had utilized the WTO Dispute Settlement Understandings (DSU) as a role model for its dispute settlement mechanism as specified in the Protocol

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