How to Apply the ASEAN Protocol on Enhanced Dispute Settlement Mechanism 2004 to Settle Disputes on the Interpretation of ASEAN Comprehensive Investment Agreement 2009

Abstract

This article is written to answer the question of how to apply the ASEAN Protocol of Enhanced Dispute Settlement Mechanism (EDSM) 2004 to settle disputes concerning on the interpretation of ASEAN Comprehensive Investment Agreement (ACIA) 2009. ACIA 2009 is a legal instrument which was designed to support the investment regime in ASEAN through four pillars of Investment such as Liberalization, Protection, Promotion, and Facilitation. This article examines EDSM 2004 and found that the ASEAN organization structure and the problem of ASEAN decision-making mode itself are also perceived as practical problems that arise from the application of EDSM 2004 in case of disputes concerning on the interpretation of ACIA 2009. Hence the author encourages ASEAN Member States may further strengthen the existing Dispute Settlement Mechanisms (DSMs) under EDSM 2004 by giving the free judgement and empower the Senior Economic Official Meetings (SEOMs) to make some structural changes such as a free judgement power to act as a full judicial function which is not related to the quasijudicial function against the parties whom are members of ASEAN Summit.