Regional Judicial Institutions and Economic Cooperation: Lessons for Asia?

Abstract

Why is Asia lagging behind other regions in creating regional judicial institutions? What lessons from the operation of such institutions elsewhere could be valuable to Asian regional economic integration? I show that Asian states are not unusually averse to refer inter-state disputes over trade, investment, and territory to global judicial institutions. Moreover, Asian states are not unique in their reluctance to resolve regional inter-state disputes through judicial means: Regional judicial institutions elsewhere have also rarely been used to resolve inter-state disputes. The most valuable lesson for Asia from experiences elsewhere is the role that regional courts can play in resolving disputes between administrative agencies and private parties about the implementation of international law. While Asia lacks an extensive set of regional laws and regulations that create rights and obligations for private parties, there is a broad body of international law that already applies in many Asian countries. National administrative agencies or courts may not always be well-equipped to interpret this law. I suggest the creation of a regional judicial institution that contributes to the uniform application of this law and that may help signal the commitment of states to their international obligations. The proposed institution provides incentives for harmonization without creating new obligations, thus recognizing the diversity among Asian states.