Regulatory Freedom and Control in the New ASEAN Regional Investment Treaties

Abstract

The expanding universe of regional investment agreements of the Association of Southeast Asian Nations (ASEAN) illustrates the difficulties of accepting host States’ expansive regulatory freedoms, while neglecting to design durable institutional controls for regionally-coordinated investment treaty compliance and regionally-harmonized investment treaty interpretation. Since its transformation from a loose economic cooperation into a rules-based organization discharging binding executive-legislative functions under its 2008 Charter, ASEAN has already entered into regional investment treaties applicable within the ten ASEAN Member States (2009), as well as with China (2010), India (2014), Australia and New Zealand (2009), Korea (2009), and Japan (2008). Negotiations are pending with the United States, the European Union, and Canada. Institutional deficits in the monitoring and implementation of ASEAN regional investment treaties could be addressed by strengthening the mandate and capacity of the ASEAN Investment Area (AIA) Council. An intergovernmental centralized appellate mechanism could help facilitate harmonized interpretation of these regional treaties.