ASEAN Law Ministers Propose Regional Cross-BorderJudgement Body: ASEAN Regional Exequatur Forum

Credit: ASEAN-Joint Communique of the Eleventh ASEAN Law Ministers Meeting (ALAWMM)

Ministers at the ALAWMM are deliberating the establishment of a legal regional body

aimed at addressing inconsistencies in how judgments by foreign courts are

recognised across the bloc.

The debate at the ALAWMM, which notably focused on a singular scope, was centred on a framework proposed by the Australian minister.

The proposed mechanism, known as the ASEAN Regional Exequatur Forum (AREF), has elicited a spectrum of responses from both member and observer states. Many ministers have endorsed this solution, but they each have particular concerns and clauses they wish to address and amend.

The AREF would serve as a deliberative body, composed of legal experts from across the region, that is mandated to address transnational legal judgments that are raised by ASEAN states and their “strategic partners”.

The forum’s findings would be advisory rather than binding, according to the draft clauses, with the body’s purpose of enhancing the transparency in procedural matters and subsequently offer recommendations in cases where such judgements are suspected to involve corruption or breaches of national public policy. Each case would be evaluated by a committee of legal experts drawn from ASEAN states and strategic partners. Participation would be voluntary, guided by a “scope map” that is updated biannually, reflecting each state’s willingness to engage with any specific advisory case.

Remarkably, decisions would be reached by a substantial majority - a marked shift from ASEAN’s long-standing tradition of a unanimous consensus for voting procedures. The AREF’s conclusions would then be channeled to the ASEAN Economic and Expert Committee (AEEC), where member states retain their full discretion over the implementation of any suggestions. Legal consultation will also be made available for counties that encounter institutional or logistical challenges in adopting the recommendations provided.

The forum is expected to operate according to the principles of Diligence, Accountability, Impartiality and Sensitivity - collectively known as DAIS - and only intervene and review any legal cases that are significant to the political or economic relevance to at least one ASEAN state.

The proposal has prompted a myriad of differing reactions among observer states, with most ASEAN members appearing aligned in keeping this mechanism strictly advisory in nature.

The European Union has expressed its support for greater coordination between states and welcomed the transparency focus. The minister provided suggestions and concerns regarding the AREF, with the European Union stating “We support more legal reform.” The European Union, which is often compared to ASEAN, also said they were willing to work closely with ASEAN to do so.

“The EU would also like to encourage ASEAN to make decisions legally binding,” the minister of EU continued, citing the EU’s own experience with empowering legal committees and further stating that ASEAN should follow suit. South Korea, meanwhile, strongly endorsed this proposal, provided its commercial outcomes were protected.

“We are done talking. It is time to put this into motion,” the minister of South Korea stated. “As long as South Korean investors and businesses can profit, we are on board.”

In contrast, the United States adopted a more cautious tone, questioning the crystallising potential of a ‘bureaucratic bloat’.

“If you create another subcommittee under AREF, it simply diverts the workload of this committee”, the minister voiced. “Instead of solving the issue at hand, it only proliferates the administrative matters.”

“No objection, Russia doesn’t want to interfere. if ASEAN wants it, they can get it. Russia is not in a position to interfere with ASEAN’s affairs,” said the Russian Minister. They have decided to adopt a non-interventionist policy and instead support the idea of the ASEAN Regional Exequatur Forum.

The Minister from Brunei reinforced its past actions, referencing its previously taken strong, transparent measures based on commercial laws. However, Brunei has made it clear and insisted that it will not support any regional legal mechanisms that may potentially encroach on domestic legal procedures or “compromise the social fabric.”

ASEAN officials have reiterated that this mechanism is not intended to challenge the national legal autonomy of any state. Rather, it functions as a reference point, encouraging the best practices in adjudicating foreign rulings while respecting the bloc’s long-standing principles of consensus and non-interference. Whether the AREF acts as a foundation for a deeper legal alignment or merely an emblem of ASEAN’s cautious diplomacy may not depend on its architecture, but rather on the political resolve of its member states to act upon such advice provided. Nevertheless, discussions surrounding the AREF proposal - although still in its nascent form - will be expected to continue at the upcoming plenary sessions, and the BBC will continue to report on this matter.

BBC News will continue to monitor and report on developments from the ALAWMM and ASEAN-related committees.

Written by Tay Yong Le, Jomin Ng Min Rui, and Krishay Gautam Patel

Bibliography:

1. Joint Communique of the Eleventh ASEAN Law Ministers Meeting (ALAWMM)

https://asean.org/joint-communique-of-the-eleventh-asean-law-ministers-meeting-a

lawmm/