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  • Print publication year: 2016
  • Online publication date: March 2016

Appendix 1 - CIL’s observation on dispute settlement clauses in selected ASEAN agreements adopted prior to the ASEAN Charter

Summary

Introduction

Between July and August 2012, CIL conducted an observation on seventy-eight agreements concluded between ASEAN member states, focusing on their DSCs. The observation classified the types of DSCs that ASEAN has utilised since it was established in 1967 until the ASEAN Charter entered into force in 2008, and also identified if there is a standard clause applied to each type of DSC. Moreover, the classification of types of ASEAN DSCs also analysed whether ASEAN favoured a particular type of DSC in agreements produced by the ASEAN Economic, Socio-Cultural and Political-Security Communities.

CIL intentionally limited its observation to agreements (main and stand-alone) adopted prior to the entry into force of the Charter in 2008. The observation did not include protocols or other instruments of amendment, nor did it include implementing protocols or instruments unless those instruments contained DSCs different than those established under the mother agreements or if such protocols or instruments are listed under the Appendices of ASEAN's instruments on economic dispute settlement mechanisms: the 1996 Protocol and the 2004 Protocol.

CIL identified six types of DSCs. The first type highlights the absence of DSCs in some ASEAN agreements. The second type relates to DSCs that refer disputes to consultation or negotiation (or amicable solution). The third type is DSCs that refer to DSMs outside of the ASEAN Framework. The fourth type applies solely to ASEAN economic agreements, which refer disputes to the 1996 Protocol, or to the 2004 Protocol, which supersedes the 1996 Protocol. The fifth type of DSC relates to clauses that refer disputes between parties to agreement-based DSMs. Finally, the sixth type reflects clauses that utilise layered dispute resolutions.

List of selected ASEAN agreements

The observation was conducted on DSCs in seventy-eight ASEAN agreements adopted prior to the entry into force of the ASEAN Charter in 2008. The agreements consist of ten political-security agreements; fifty-nine economic agreements; five socio-cultural agreements; three ASEAN Secretariat-related agreements; and one agreement concluded with an international organisation. Seventeen of these agreements were concluded with parties from outside of ASEAN (external relation agreements), fifteen of which are economic, one political-security and one cooperation in general matters.