Keynote Address by Mr Heng Swee Keat, Minister for Finance at 13th ASEAN Law Association General Assembly and The ASEAN Law Conference on 26 July 2018, 9.40am at Raffles City Convention Centre26 Jul 2018
Representative of the ASEAN Secretariat, Deputy Secretary-General Dr AKP Mochtan,
President of the ASEAN Law Association (“ALA”) Attorney Avelino Cruz,
Executive Secretary Salvador Medialdea of the Philippines,
Chairpersons of the ALA National Committees, Heads of Delegation, Chief Justices and Judges of ASEAN Judiciaries,
ALA Secretary-General Attorney Regina Padilla Geraldez,
Members of ALA and Distinguished Guests,
1. Welcome to the 13th ASEAN Law Association (“ALA”) General Assembly and The ASEAN Law Conference. To our friends from the region and beyond, a very warm welcome to Singapore, and thank you for joining us in what will be a very meaningful few days for the ASEAN legal fraternity.
2. ASEAN has come a long way in the past half a century. Our region is growing at an impressive rate, and there is much cause for optimism.
3. As the world around us changes at an unprecedented pace, a united ASEAN stands us in good stead to rise to new challenges, and to seize opportunities to improve the lives and livelihoods of our peoples.
4. Remaining committed to regional economic integration and development will help to ensure ASEAN’s continued relevance and competitiveness in a global economy.
5. In this regard, the theme of this Conference is very apt, calling us to unleash “The Power of One”, with a focus on “Unlocking Opportunities in ASEAN through Law”.
II. The Role of Law
6. Indeed, the law is one of the “keys” to unlocking opportunities in our region.
7. The rule of law enhances:
(a) consistency in outcomes;
(b) socio-economic stability;
(c) as well as transparency and accountability between the public and private sectors.
8. Moving towards a greater focus on laws and institutions – or what some have called “legalification”, “formalisation” or “institutionalism” – facilitates economic development in a few ways.
(a) It encourages trade and investment, by boosting investor-confidence and reducing transactional costs.
(b) It also creates an enabling environment for greater participation and engagement from both the public and private sectors.
9. Of course, it is not straightforward to do this at the regional level.
(a) Different States have different priorities and face different socio-economic realities.
(b) ASEAN, in particular, has a combined population of more than 600 million, with immense diversity in legal traditions and systems.
10. It is helpful to approach the issue of ASEAN integration through law, from three different perspectives:
(a) looking astern;
(b) looking afield;
(c) and looking ahead.
A. Looking Astern
11. First, we look astern. By this, I mean that we look back at ASEAN’s development since its establishment in 1967, to see how the role of law has evolved in our regional interactions.
12. ASEAN originated as a loosely-bound platform for maintaining regional peace and stability. We were united by our shared foundational principles of “non-interference” and “consensus” – or what has been called “the ASEAN way”. There was minimal use of formal and legally binding instruments in the early years.
13. Towards the end of the 20th Century, ASEAN had a renewed focus on regional economic integration through the adoption of legal frameworks and instruments. As seen in the “ASEAN 2020 Vision” of December 1997, respect for justice and the rule of law were recognised as preconditions to a peaceful and stable region.
14. A landmark development occurred in 2008, when the ASEAN Charter was ratified as the constitutive legal framework for ASEAN.
(a) The Charter provided legal status and an institutional framework for ASEAN, codifying ASEAN norms, rules and values.
(b) It expressly referred to the “rule of law”, the conferring of “legal personality” and the establishment of dispute resolution mechanisms.
(c) It also called upon Member States to take implement the provisions of the Charter, including by enacting “appropriate domestic legislation”.
(d) This heralded a new “self-understanding” for ASEAN.
15. More recently, in late 2015, we witnessed the historic establishment of the ASEAN Economic Community.
16. By looking astern, we appreciate how ASEAN has moved steadily towards greater “legalification”, “formalisation” and “institutionalism”. This has promoted cross-border trade not just within ASEAN, but also between the ASEAN bloc and other key economies.
B. Looking Afield
17. It is, however, still early days of the ASEAN Economic Community, and much remains uncharted territory for us. This is why we also consider a second perspective: looking afield at developments elsewhere, to draw valuable lessons from the experience of other economic communities.
18. I focus, today, on the experience of the European Union (“EU”), being the largest regional integration undertaking in history.
19. The EU approach, called “deep integration”, developed a “single market” of unprecedented size, by:
(a) establishing supra-national legal standards and institutions;
(b) designing collective policies;
(c) facilitating relatively borderless populations;
(d) introducing a common currency in the “Eurozone”;
and so on.
20. However, in recent years, the EU has faced some pressures and difficulties.
(a) We have witnessed the Brexit movement, growing migratory pressures and refugee-related issues, as well as debt problems.
(b) Commentators have observed that the EU may have tried to integrate “too far, too fast”, with some developments being less-suited for certain Member States.
(c) Recognising these difficulties, the Rome Declaration of March 2017 expressed an intention for Member States to move “at different paces and intensity where necessary”.
21. In contrast, as mentioned earlier, the ASEAN way is a relatively informal consensus-driven approach, involving small and incremental steps. We have traditionally sought to find common ground and achieve a measure of regional unity without requiring uniformity.
22. This approach has its obvious benefits given the immense diversity of our region. But there is also room to move forward on integration in more areas.
23. Looking afield, to other examples such as the EU, offers us lessons and practices for doing so – a greater role for law, developed with sensitivity to the unique circumstances of our region, provides immense potential for enhancing economic integration and development.
C. Looking Ahead
24. This leads me to the third perspective: looking ahead to how the legal sector may contribute towards designing a model of economic integration that works for ASEAN, particularly at a time where ASEAN has booming infrastructure needs. Indeed, the Asian Development Bank has estimated that from 2016 to 2030, ASEAN’s infrastructure investment needs will total USD2.8 trillion.
25. To meet these needs, it is a movement in the right direction for us to develop – to the best of our abilities – an ecosystem that enhances “the ASEAN way” with a greater emphasis on suitable laws, legal instruments and frameworks.
26. In recent years, we have witnessed many encouraging movements in this direction.
(a) For instance, our region has seen the emergence of informal and voluntary mechanisms, such as the “ASEAN Consultative Committee on Standards and Quality”, which help to develop stable and predictable standards.
(b) We have also seen the creation of legal frameworks and instruments which facilitate cooperation in specific areas, including the “ASEAN Single Window”, the “ASEAN Trade in Services Agreement”, and so on.
27. These initiatives have been developed in a way that is uniquely ASEAN – they remain very much cognisant of ASEAN’s shared foundational principles, but seek to formalise collaboration and understandings with elements of legal quality.
28. Looking ahead, it is clear that the law and the ASEAN legal fraternity play important and varied roles in the integration effort. Many of these issues will be discussed and debated during this Conference. I propose to start the ball rolling by touching briefly on three areas:
(a) law and technology;
(b) the convergence of laws, regulations and practices;
(c) and the active participation of the private sector.
1. Law and Technology
29. First, law and technology.
30. In this age of the “Fourth Industrial Revolution”, we see:
(a) unparalleled interconnectivity across national borders;
(b) increased capabilities of artificial intelligence and big data;
(c) the proliferation of e-commerce;
(d) and the emergence of new technologies.
31. Our laws and practices have to respond effectively to technological changes, and do so more quickly than ever.
(a) In order to effectively regulate the technology realm, both the public and private sectors must keep up-to-date on rapidly changing trends.
(b) Our laws must be kept current and sufficiently flexible to accommodate unforeseen technological changes. They must also accord due regard for the laws of other jurisdictions, given that technology issues increasingly cross national boundaries.
(c) Our legal industries must embrace technology to remain competitive, while our legal professionals must recognise the changing nature of legal services and role of the profession.
32. On a related note, I understand that the ASEAN judiciaries have successfully collaborated on an excellent technology initiative which will be launched tomorrow: an online portal that promotes greater understanding of ASEAN laws and fosters deeper cooperation amongst ASEAN judiciaries.
33. We have much to learn from each other in the realm of law and technology. No single person, entity or jurisdiction has a monopoly on ideas in this rapidly evolving space. Distilling lessons from our collective experience provides an excellent foundation for navigating the imminent challenges brought about by technology.
2. Convergence of laws, regulations and practices
34. Second, we can work together to facilitate the convergence of laws, regulations and practices. Early international success in legal harmonisation efforts may be seen in the highly-successful New York Convention, which has significantly enhanced the cross-border enforceability of arbitral awards. More recently, we have witnessed the coming into force of the Hague Convention on Choice of Court Agreements, which further strengthens the cross-border enforceability of court judgments. And just earlier this week, it was reported that a new United Nations treaty – the Singapore Convention on Mediation – promises to do something similar in the context of mediated settlements.
35. Of course, other than cross-border enforcement, there are other obvious areas for convergence, such as those where the substantive legal principles are of a fairly universal nature.
(a) One such area is the law governing commercial contracts.
(b) With an increasing occurrence of cross-border projects and transactions governed by contracts, meaningful convergence in this area will reap rich benefits for the parties involved.
(c) The growth of international commercial arbitration is evidence, in itself, that commercial contract law is an area which lends itself particularly well to convergence across national borders.
36. There are also areas of commercial law where convergence may be considerably more challenging, but which are nonetheless very important for ASEAN’s continued economic integration and development.
(a) One such area is that of intellectual property (“IP”), which provides a legal framework for supporting innovation and enterprise.
(b) In general, IP rights are largely “territorial” in nature, with each country having its own policies, and understandably so.
(c) But if we can explore deeper collaboration, or even seek meaningful convergence in these areas, we can facilitate a conducive environment for further economic growth.
37. All in, it bodes well for us that ASEAN has already begun moving towards common standards and legal instruments. Continued progress on this front will facilitate the integration and development of ASEAN economies.
3. Active participation of the private sector
38. The third area is the importance of the private sector’s active participation in regional initiatives and conversations.
39. State and non-State actors working together in a regional public-private partnership is important aspect for achieving ASEAN integration through law. State actors traditionally lead in implementing and interpreting laws, while the private sector can serve as a valuable springboard for fresh ideas and solutions.
40. To this end, ALA – which brings together the different branches of the legal profession – is well-positioned to facilitate close cooperation in the ASEAN legal fraternity. Indeed, this important aim finds expression in ALA’s Constitution.
41. Regional conferences and dialogues such as this Conference bring together members from both the public and private sectors and across diverse areas of expertise for an exchange of ideas. We all look forward to a range of innovative suggestions, cross-cutting ideas and practical recommendations emerging from these discussions.
42. Apart from regional events and conferences, it is also excellent that ASEAN lawyers are increasingly seeking collaborative opportunities with counterparts from other jurisdictions.
(a) In recent years, we have seen an increase in strategic law partnerships across the ASEAN bloc.
(b) Earlier this year, the Asian Business Law Institute launched an important publication on the recognition and enforcement of foreign judgments in Asia. It is the culmination of the work of a diverse range of legal professionals, including ASEAN lawyers.
43. These examples of regional collaboration remind us of our potential for growth when we work together.
44. Looking ahead, a legal fraternity committed to unlocking regional opportunities will facilitate further economic integration and development in ASEAN.
45. An old African proverb tells us: “If you want to go fast, go alone. If you want to go far, go together”.
46. The first 50 years of the ASEAN experience have borne this out.
(a) We have immense potential, and it is extremely encouraging to know that there is so much room for us to go further.
(b) But to do so we must, as those before us did, go together.
(c) Only then, will we unleash “The Power of One”.
47. We are moving in the right direction by developing shared legal frameworks, instruments, standards and understandings.
48. Of course, we may face challenges and disruptions in our journey.
49. But amidst all these –
(a) may we work together to find the sweet spot for achieving both State and regional interests;
(b) may history record our effort as a bespoke approach in designing a flourishing model of regional economic integration;
(c) and may we press on in our worthwhile endeavour to unlock opportunities in ASEAN through law.
50. I wish you a productive and fruitful Conference. Thank you.