When ‘Failure’ Indicates Success : Understanding Trade Disputes between ASEAN Members

The existing literature on ASEAN’s trade disputes focuses on whether the organization will indeed develop into a rules-based association, or whether political methods will continue to be used in preference to legal principle. The conclusion, generally from outside observers, is that if ASEAN seeks to prioritize economic integration and increased cooperation on trade liberalization, it will likely be forced to become more ‘legalized’. The discussion thus tends to revolve around legal mechanisms that will best achieve this end-point.The assumption that underpins the existing literature is that it is an inevitability, or perhaps simply a matter of time, that the available dispute settlement mechanisms will be used by the ASEAN members. However, this Chapter argues that Western authors need to rethink their analysis of ASEAN, and that the key questions should be framed differently.It argues that across the range of major ASEAN disputes – those concerning trade and territory – the ASEAN members have shown clear preference for quiet self-resolution or external adjudication rather than internal adjudication, not just in relation to trade disputes, but also in relation to territorial disputes. More importantly ‘legalism’, within the ASEAN context, does not mean referring disputes to institutionalized and procedurally sophisticated adjudicatory mechanisms, but rather relying on the legal rights and obligations established by the ASEAN agreements in a substantive sense.Whereas the WTO has the benefit of being a self-contained regime for trade, in ASEAN trade must cohabit the same forum as other, more explosive, political concerns such as territorial integrity and the physical security of the state. ASEAN members rely instead on the ̳ASEAN Way‘, which holds that progress can be made through consensus and discussion, not confrontation. Paradoxical as it may sound to the adversarially-inclined Western trade lawyer, the absence of ASEAN trade law cases may actually be an indicator of the system‘s success