Legalizing the ASEAN Way: Adapting and Reimagining the ASEAN Investment Regime

Abstract

This article explores the legalization characteristics of the investment rules of the Association of South-East Asian Nations (ASEAN). Measured against orthodox and external benchmarks, ASEAN’s investment regime is relatively limited. We make the following two arguments in this article. First, we argue that while ASEAN members have subscribed to global norms in their own collective investment rules, they have done so in an intentionally selective manner shaped fundamentally by key contextual dynamics. These encompass a complex combination of ASEAN members’ unique deliberation modality (the “ASEAN Way”) informed by their shared historical experience coupled with negative social learning. Using those insights, we suggest that is both possible and desirable to understand the ASEAN approach as an independent and legitimate form of legalization, rather than as a failed or flawed model. Second and relatedly, we argue that the idiographic nature of legalization in ASEAN compels us to rethink the conventional universal (nomothetic) approach to legalization and embrace a more nuanced conception.

Keywords: international investment law, ASEAN way, de-legalization, path-dependency

JEL Classification: K22, K33