ASEAN’s Legal Ambitions Must Prioritise Justice Over Speed

Written by ABC News

The exequatur procedure, known for ASEAN law ministers meeting and debating a standardised process for recognising court rulings across borders. ASEAN’s push to streamline this procedure is a step towards smoother cross-border justice. However, the exequatur process should not become another tool favouring the connected and powerful, while leaving the vulnerable behind. 

Across the council floor at this week’s ASEAN Law Ministers Meeting, delegates debated whether the exequatur framework should be legally binding or merely advisory. Delegates are largely happy to agree that commercial law should be legally binding, while civil matters should not. This is to protect the sovereignty of individual nations, each with different legal systems. 

“Trade is universal,” the delegate of Australia said when interviewed by an ABC News representative, “But civil law is subjective.” While commercial judgments are seen as more politically neutral and easier to harmonise, other areas of law require more sensitivity and a nuanced approach. 

Regarding the importance of standardising commercial law, the delegate of Australia added, “We believe the unification and standardisation is integral to preserving the strong ties Australia has with ASEAN and that in turn leads to more economic growth for both ASEAN and Australia, so obviously, that's beneficial for us”. 

While continued economic prosperity is of high significance, this delegate of ABC news is concerned about the fairness and equity of a streamlined exequatur process and its enforcement. Without strong, proper safeguards, exequatur processes can be exploited by corporations or political actors to enforce unjust rulings across ASEAN borders. A judgment made in a court known for its corrupt nature or political interference should not be accepted region-wide. 

In global commercial arbitration, those from developing countries are often disadvantaged due to reasons such as weaker legal capacity and fewer experienced expert advisers. Unless ASEAN can address these imbalances, its new exequatur process may amplify inequality. 

Past cases warn us about the dangers of putting speed over fairness in the exequatur procedure. During Argentina’s financial crisis in 2001, the government implemented emergency economic measures to protect its citizens from inflation and to keep necessities affordable. In turn, foreign investors sued the government for the financial damage caused by these measures and the breach of contracts that became impossible to uphold. Argentina was ordered to pay billions in compensation. 

This is an example where the state was punished for acting in the interest of its people by taking the necessary steps during a crisis. ASEAN must not replicate this. Even in commercial disputes, states should be given room to act lawfully, without disregarding their people.

Thus, safeguards against unfair enforcement and the right to refuse enforcement of discriminatory rulings are recommended to be discussed in the council. These safeguards are not optional; they are foundational in a system that functions with fairness. Without these safeguards, the council might be digging a hole that it did not know they were. 

The European Union’s Brussels I Regulation serves as a positive comparison. Upon removal of the exequatur process, the regulation allows automatic recognition of judgments, established with a set of clear exceptions. However, this was only achieved by the EU after decades of standardisation and mutual trust-building. Even to date, EU countries retain the right to reject rulings that violate fundamental rights or policies. It is crucial for the ALAWMM to include the necessary protocols in the decisions they make so as to protect the vulnerable. 

Therefore, ASEAN’s efforts to build a streamlined exequatur process should not just be about aligning economic goals, but rather moving towards justice and equity. ASEAN must prioritise justice over speed and fairness over convenience. Slow and steady wins the success of the exequatur procedure. It won’t be measured by how quickly trade cases are processed, but by whether the system is seen as fair to all parties, regardless of legal power, economic size, or political standing. 

Written by Victoria Hwang, Eden Lee, Jessica Xiao