Open
Regionalism and Deeper Integration: The Implementation of ASEAN Investment
Area (AIA) and ASEAN Free Trade Area (AFTA)
Dr.
Lawan Thanadsillapakul
Part
22
Moreover,
individual ASEAN countries are unilaterally liberalising service trade
and services FDI. In particular, the measures implemented(137) by individual ASEAN countries after the crisis have dramatically opened
the ASEAN services market to foreigners(138) . Despite the Asian crisis, the inflow of services FDI into ASEAN in 1998,
in the aftermath of the crisis, was surprisingly impressive(139) . The increased FDI flows to the region were directed mainly to the services
sector notably banking, insurance and telecommunications (UNCTAD (Overview),
1998a: 17-18).
Dispute
Settlement under AFAS
Regarding dispute settlement, the Protocol on Dispute Settlement Mechanism
for ASEAN is generally referred to and applied with respect to any disputes
between member countries concerning the interpretation or application
of the agreement. A specific dispute settlement mechanism may be further
established. However, there is no mechanism for settling disputes between
private sectors under AFAS. Compared to the NAFTA, which provides the
mechanism for settling disputes between private sectors, and between private
sectors and government, ASEAN does not concern itself with this issue,
and leaves it open for future circumstances without referring to any further
solution either relying on domestic court or arbitration or other procedures(140) . This appears to be a problematic issue in practice since private sectors
and business are the main engines propelling the implementation of AFAS
and indeed, disputes between them may inevitably occur in business life.
So a mechanism for amicably settling such disputes is necessary.
The
Institutions specified for carrying out functions to facilitate the operation
of this Framework Agreement(141) is the Senior Economic Officials Meeting (SEOM), and the ASEAN Secretariat
will assist SEOM in providing support for supervising, co-ordinating and
reviewing the implementation of the Agreement. In practice, the ASEAN
Council for Trade in service may be necessary. For instance, the Council
may help promote the harmonisation of rules and regulations in the region,
enhance the co-operation in service trade among ASEAN countries, facilitate
the process of mutual recognition in ASEAN as well as scrutinise practices
of the Members.
ASEAN
Framework Agreement on Intellectual Property
Co-operation
The
objectives of the ASEAN Framework Agreement on Intellectual Property Co-operation
are to strengthen ASEAN co-operation in the field of intellectual property
through an open and outward looking attitude. The co-operation extends
to the private sectors and professional bodies of ASEAN. Member countries
of ASEAN agreed to explore the possibility to set up an ASEAN patent and
trademark system, as well as an ASEAN patent and trademark office if feasible.
This aims at creating ASEAN standards and practices in the development
of their intellectual property regimes to be consistent with international
standards, and to enhance the promotion of technological innovation and
the transfer and dissemination of technology in the region(142) . ASEAN agreed to implement intra-ASEAN intellectual property arrangements
in a manner in line with the objectives, principles, and norms set out
in the Agreement on TRIPS and the relevant conventions. ASEAN countries
shall abide by the principle of mutual benefits in the implementation
of measures or initiatives aimed at enhancing ASEAN intellectual property
co-operation.
The
scope of co-operation includes the field of copyright and related rights,
patents, trademarks, industrial designs, geographical indications, undisclosed
information and layout designs of integrated circuits. To implement the
objectives of this agreement, ASEAN countries agreed to enhance intellectual
property protection and enforcement, by networking of judicial authorities
and intellectual property enforcement agencies, and to strengthen cross-border
measures of co-operation as well as intellectual property administration.
They will explore the possibility of creating an ASEAN database for intellectual
property registration, and automation to improve the administration of
intellectual property. Moreover, they intend to strengthen intellectual
property legislation by making a comparative study of the procedures,
practices and administration of ASEAN intellectual property offices. They
will exchange IP personnel and experts, network IP training facilities
or centres of excellence on IP, establish a regional training institute
for IP, and establish the ASEAN Intellectual Property Association membership
of which will be open to all specialists in the IP field. ASEAN will provide
arbitration services or other alternative dispute settlement mechanisms
for the resolution of IP disputes and exchange information on IP.
The
ASEAN mechanism on IP comprises representatives from member countries,
with support from the Secretariat. This forum is to review the co-operative
activities under the agreement by meeting on a regular basis and submitting
its findings and recommendations to the ASEAN Senior Economic Officials
Meeting (SEOM). Any disputes arising from differences concerning interpretation
or application of the agreement are to be settled amicably between the
parties. If such differences cannot be settled amicably, they shall be
dealt with by the SEOM and finally by the ASEAN Economic Ministers Meeting(143) . However, the Agreement did not provide for any dispute settlement mechanism
for the resolution of disputes arising between private sector entities
or between private sector entities and the government.
Part
23
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(137)
The restructuring of certain service industries in the countries affected
by the crisis is providing opportunities for foreign investors, and the
liberalisation of policy in respect of M&A makes the entry of foreign
investors through the acquisition of assets easier than before. In addition,
a factor conducive to increasing FDI in the most affected ASEAN countries
is the improvement in their international cost competitiveness due to
depreciation in ASEAN countries. This seems the crisis was turn to be
positive for the long-term development of ASEAN countries to adjust and
streamline their legal infrastructure, institutional framework, prudential
measures, adequate supervision and effective policy implemented in the
region. This includes the well planned liberalisation in trade and investment.
See UNCTAD, 1999: 52-58. Also see UNCTAD Press Release TAD/INF/2779, 2
November 1998.
(138)
See UNCTAD (1999) World Investment Report 1999: Foreign Direct Investment
and the Challenge of Development. pp. 52-58.
(139)
See UNCTAD (1998) World Investment Report 1998: Trends and Determinants,
chapter VII stated that despite the crisis, foreign investment remained
positive and continued to add to the existing investment stock. Net inflows
are estimated to have increased from US$ 77 billion in 1996 to US$ 80
billion in 1997. And especially inflows of service investment to Thailand
even increased ten times from the 1997. (UNCTAD, 1998: 197-242)
(140)
Even though AFAS Art. VII (2) provided that "2. A specific dispute
settlement mechanism may be established for the purpose of this Framework
Agreement which form an integral part of this Framework Agreement".
This provision does not refer to private sectors directly. It is probably
due to the fact that AFAS is a regional framework agreement and thus ASEAN
countries may leave private issue to the national level. Alternatively,
they may regard that Art. VII (2) is valid for further establishing a
specific mechanism for settlement of private dispute.
(141)
This includes the organization of the conduct of negotiations provided
under this Agreement.
(142)
Art. I: Objectives of the ASEAN Framework Agreement on Intellectual Property
Cooperation.
(143)
Art. 5: Consultations of the ASEAN Framework Agreement on Intellectual
Property Co-operation. |