Asia-Pacific Regional Architecture and Consumer Product Safety Regulation for a Post-FTA Era

Abstract

Imagine a transnational regime with these institutional features: • Virtually free trade in goods and services, including a "mutual recognition" system whereby compliance with regulatory requirements in one jurisdiction (such as qualifications to practice law or requirements when offering securities) basically means exemption from compliance with regulations in the other jurisdiction. And for sensitive areas, such as food safety, there is a trans-national regulator. • Virtually free movement of capital, underpinned by private sector and governmental initiatives. • Free movement of people, with permanent residence available to nationals from the other jurisdiction - not tied to securing employment. • Treaties for regulatory cooperation, simple enforcement of judgments (a court ruling in one jurisdiction being treated virtually identically to a ruling of a local court), and to avoid double taxation (including a system for taxpayer-initiated arbitration among the member states). • Government commitment to harmonising business law more widely, for example for consumer and competition law.

No, this is not necessarily the European Union (EU). These aspects characterise the Trans-Tasman framework built up between Australia and New Zealand, particularly over the last two decades. Sometimes this has been achieved through treaties (binding in international law), sometimes in softer ways (such as parallel legislation in each country), and sometimes even through unilateral abrogation of national sovereignty. Both countries are also now actively pursuing bilateral and now some regional Free Trade Agreements (FTAs), especially in the Asia-Pacific. So can these Trans-Tasman initiatives, and perhaps even some EU developments, provide a template for true “Asia Pacific Community” (beyond what Australian Prime Minister Kevin Rudd apparently has in mind) or an “East Asian Community” (as suggested by the new Japanese PM, Yukio Hatoyama)?

More generally, the Global Financial Crisis (GFC) is generating a reorientation of burgeoning Asia-Pacific production chains towards exports within the region, in conjunction with a reassessment of market liberalisation policies themselves. In light also of the limited economic benefits of bilateral and even regional Free Trade Agreements, compared to multilateral initiatives, we should be looking for ways to promote additional “free but fair” movement of capital, people, services and goods throughout our region. Collaboration in regulating consumer product safety, financial markets, environmental protection, labour standards and investment regimes are only some of many possibilities explored in this paper. A more holistic, systematic and balanced approach to negotiating true Economic Partnership Agreements (EPAs) would assist not only Australia and New Zealand, but also partner countries that are already erecting new socio-economic regional architecture.

Keywords: International trade law, WTO, FTAs, BITs, Asia-Pacific, Australia, New Zealand, Japan, European Union law, mutual recognition, services, consumer product safety, investment law, arbitration, immigration and nationality law, enforcement of judgments, judicial cooperation

JEL Classification: K10, K13, K30, K33