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Locknie Hsu Professor School of Law Singapore Management University

UNCITRAL-SINGAPORE SEMINAR ON: 35 YEARS OF THE CISG: ACHIEVEMENTS AND PERSPECTIVES Regional efforts at the harmonization of commercial laws. Locknie Hsu Professor School of Law Singapore Management University Chair, Trade & Investment Group ASEAN Law Association. The ASEAN Legal Landscape.

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Locknie Hsu Professor School of Law Singapore Management University

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  1. UNCITRAL-SINGAPORE SEMINAR ON: 35 YEARS OF THE CISG: ACHIEVEMENTS AND PERSPECTIVESRegional efforts at the harmonization of commercial laws Locknie Hsu Professor School of Law Singapore Management University Chair, Trade & Investment GroupASEAN Law Association

  2. The ASEAN Legal Landscape • ASEAN has evolved since its inception in 1967 • Legal character: structures and commitments • Strides in removal/reduction of economic barriers • Divergences in commercial laws remain • Impact on ASEAN trade

  3. Single market and production base Network for raw materials, production inputs, services, labour and capital ASEAN has to be attractive in modern supply chain-oriented commerce ASEAN INTEGRATION

  4. ASEAN INTEGRATION Single market and production base WORLD Exports

  5. ASEAN Instruments Members’ National Laws ASEAN INTEGRATION Examples But what about … Targets include: Barriers that impede trade and investment Contracts Enforcement Corporation laws

  6. Example: 25% of Apple’s top 200 suppliers operated in ASEAN in 2013 ~ UNCTAD, ASEAN Investment Report 2013-14 But note - ASEAN Business Advisory Council Survey 2013 Q: What is the biggest challenge your organization faces in trade and investment activities with other ASEAN countries? “The biggest challenge would be to abide by the rules and regulations of other ASEAN countries as different countries have very different regulations for doing business.”

  7. Survey of Canadian Businesses in ASEAN 2013 (Responses from 138 representatives of Canadian businesses in ASEAN) 6 in 10 responses singled out (among other factors) inconsistency of laws and regulations in ASEAN countries as one of the top barriers to doing business in a number of ASEAN countries (see pages 3 and 30 of the survey report).

  8. How can the laws in ASEAN be improved further to facilitate trade and investment in ASEAN? Complementary action at the ASEAN-wide level and at the national levels needed ?

  9. CISG as a possible tool for ASEAN consideration Excerpt from CISG preamble … Being of the opinion that the adoption of uniform rules which govern contracts for the international sale of goods and take into account the different social, economic and legal systems would contribute to the removal of legal barriers in international trade and promote the development of international trade …

  10. CISG as a possible tool for ASEAN consideration – examples of relevant provisions to the ASEAN supply chain • When is a contract formed or enforceable? (Formation rules) CISG Art. 14-25 • What can a party do if the other party breaches the contract? (Contract rights, choices and remedies) CISG Art. 25-73 • What are the rules on contracts that cannot be performed due to events beyond the parties’ control? (Frustration/force majeure rules) CISG Art. 79 – “impediment” • If a party takes legal action against the party in breach and wins, can he enforce the judgment/award easily? (Contract enforcement rights and procedures) National laws and procedures, international arbitration laws, New York Convention Presently, these questions may lead to different answers depending on which ASEAN country the party is in…  Implications for ASEAN businesses: e.g. supply chain disruptions and transaction costs?

  11. CISG as a possible tool for ASEAN consideration • ASEAN – the situation on contract laws lags behind commercial realities • CISG – a possible tool • ASEAN: A step-by-step approach? • Who are the stakeholders? • What are the concerns? E.g. • loss of bargaining power, choice of law, choice of specific provisions • fear of change and uncertainty • Unfamiliarity with interpretations found in foreign case law, etc Note: Japan did not adopt the CISG system until 2008 – initial concerns and eventual adoption • Dealing with concerns • Taking into account relevant changes in the business environment and business practices • Studying and sharing success stories

  12. Regional efforts and opportunities for facilitating harmonization Legislators Judiciary Law Agencies Legal Profession Academia Towards a more seamless contractual experience in ASEAN

  13. Getting from to

  14. Thank you.

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