C. L. LIM
Associate Professor, Faculty of Law
National University of Singapore

This paper is about trade design and legal doctrine. It describes the Association of Southeast Asian Nations (ASEAN) Free Trade Area, current efforts towards building an ASEAN Economic Community, and also ASEAN’s wider aspirations in seeking to build a “mega jumbojet” with  ASEAN as the fuselage, East Asia as one wing and South Asia the other through a complex network of free trade agreements (FTAs). Our attention is drawn principally to the formation of regional trade agreements under which no MFN doctrine applies at all; thereby allowing further, smaller FTAs to be formed in the shadow of such regional agreements under Article XXIV of the GATT-WTO Agreement. More than that, the recent innovation of bilateral Tariff Reduction and/or Elimination Agreements under the Early Harvest Programme (EHP) not only creates an exception to MFN, it replaces the idea of having some multilateralised concessions as between all the members that make up ASEAN as a whole. In that sense, there is no “ASEAN-China deal” as such, at least not substantively, beyond a multilateral framework under which the real deals get done separately and bilaterally. ASEAN’s FTA policies are therefore used to illustrate, and to test, the claim today that the MFN doctrine has fallen into desuetude. For example, is this loosely assembled regional organisational approach the direction which future FTAs might take? How large a scope or area might such regional FTAs cover? Should this be considered undesirable somehow? How might we refashion trade law doctrine so as to promote the “multilateralisation” of FTA concessions instead – a function traditionally performed by the MFN doctrine?