Legitimisation of the Principle of Party Autonomy from an ASEAN Perspective: Contractual and Non-Contractual Obligations

Abstract

The ASEAN Community has gradually developed its Private International Law (PIL) at both national and regional levels. The significance of this development has been the subject of much debate by most, if not all, legislators, enforcers and scholars, among others, since the substantive agreements of the ASEAN Economic Community were enforced by Member States in 2015, thereby fostering regional trade and investment to a greater degree. A role of the PIL is to facilitate the economic flows by securing transactions and activities of private actors through the use of certain methodologies and principles. One of the most acclaimed of these principles, the Principle of Party Autonomy, has undergone a striking development in recent decades, especially outside the region (EU and US), and while this has provoked dialogue among scholars, it has had little effect on the region’s policy-makers and legislators, despite being consolidated into the prevailing Principle of contractual and non-contractual obligations in the Asian Principles of Private International Law (APPIL). It is humbly admitted that the adoption of this Principle entails some major challenges, including the preoccupation with sovereignty impairment, and the doctrinal and technical limitations in the PIL systems in ASEAN countries, among others. Since both of these concepts are currently widespread in Southeast Asia, the legitimisation of the Principle should be considered from an ASEAN perspective, which is driven by the common values and overarching rules in the region, before abruptly adopting it in national vis-a-vis regional systems; yet, the analyses on the subject are narrowed to contractual and non-contractual obligations. The parameters used in this study are the relevant principles of regional economic law and human rights law, which provide the basis for justifying aspects of this Principle at both regional and national levels. Although regional economic law and human rights law approaches may be invoked elsewhere, namely in European PIL treatises, the findings of this paper appear to indicate that there are specific deviations in the ASEAN Community. In this case, the common values and policies, as well as the common legal traditions, need to be explained, which involves an examination of certain dimensions of the Principle, including, but not limited to, the necessary connection between the chosen law and the state, the application of internationally mandatory provisions, the sanction of ordre public, and the special protection of a weaker party, which are briefly discussed in the paper. Possible ways to adapt and adjust the legal systems and configure the Principle itself are proposed, where necessary. Moreover, the study also includes certain selected jurisdictions that use a PIL system, which is more tangible and concrete than that of most ASEAN countries, and which represents particular regimes. The former group includes Singapore, Thailand and Vietnam, and the latter, the Philippines.