International and National Laws Intertwined in Asia* -DRAFT PLEASE DO NOT CITE- By: Ljiliana Biukovic To conduct business activities in any jurisdiction today requires not only a knowledge of the relevant domestic laws but also an understanding of a complex multilevel legal framework that includes a myriad of international and regional rules and standards. The process of market globalization is inevitably linked to globalization of the legal rules that regulate the global markets, with result that national legal systems are distinguished more by local institutional practices that by differences in the substantive legal norms. In other words, it is important to understand that international laws can acquire a variety of local meanings that call for an understanding of the local history and culture in addition to knowledge of the local economy and local laws. This brief article aims at discussing the importance of the learning about the multifaceted regulatory environments of business practices through examination of not only the massive web of national, regional and international rules that frame business practices in a particular country, but also the unique historical, political and cultural context in which local laws and institutions have emerged. A decision to do business in Asia, for example, is often based on the economic attractiveness of that market. Despite the financial crisis in late 1997 and early 1998, the past performance of the Asian market has been remarkably strong. Most of the Asian economies are export-oriented and their export power is growing. Asia s share of world trade was 34 percent in 2006 and accounted for about 40 percent of the total increase in world trade over that period. 1 Since 2004 when it overtook Japan, China has been the world s biggest exporter. The only countries with higher exports are Germany and the United States, and 20 percent of China s export goes to the US. 2 The strong economic growth in the whole region (approximately 6 percent to 12 percent in 2007) 3, the vast market (Asia is the largest continent), the enormous labour resources (close to 3 billion people in China and India alone), a good work ethic based on traditional obedience and a sense of hierarchy, low labour costs, the dominance of the private sector (except in China), the diverse levels of economic development of the countries in the region (some are developing while others, such as Japan and Korea, are already developed), and the booming intra-regional trade despite a significant lack of complementarily among the * Dr. Ljiljana Biukovic, Faculty of Law, University of British Columbia (biukovic@law.ubc.ca). The research for this article is supported by the Major Collaborative Research Initiative Grant of the Social Science and Humanities Research of Canada and it is a part of the project on Cross-Cultural Dispute Resolution. It is a part of an initial draft of the chapter in the book L.Biukovic & P. Potter, Doing Business in Asia (forthcoming in 2008, LexisNexis Canada). Comments welcome. 1 P. Gruenwald and M. Hori, See P. Gruenwald and M. Hori, Intra-regional Trade Key to Asia s Export Boom, IMF Survey Magazine, February 6, 2008, available at http://www.imf.org/external/pubs/ft/survey/so/car02608a.htm (last visited March 17, 2008). 2 IMF report, (2007) Vol. 44:3 Finance and Development, available at http://www.imf.org/external/pubs/ft/fandd/2007/09/amiti.htm (last visited March 17, 2008). 3 In general, economic growth throughout the region has been steady. Japan reached only 2.1% GDP growth in 2007, but Taiwan, Singapore, and Indonesia grew at 6% GDP per year, South Korea 7%, Malaysia and Thailand 8%, India 10%, and China 11.5%. See: www.wto.org and OECD at www.oecd.org.
goods and services traded 4, are some of the factors normally considered by foreign investors in deciding whether to do business in Asia. 5 One other factor, the importance of which is sometimes underestimated in this decision making process, is the system of legal rules in effect in the various countries. Regardless of the form that the business is to take, the regulatory power of governments, how and how well the court system functions, specific legislation on ownership, including intellectual property rights, and on investment, acquisitions, financing, employment, taxation, cross-border trade and dispute settlement, are all important elements that should be considered in deciding whether to conduct business in any foreign jurisdiction. The question of whether a country s substantive legal rules are good for foreign investors can be translated into questions about justice and fairness of the legal system and equality for all business actors in the market. Do the legal rules provide equal rights to foreign and domestic businesses, and to small, medium size and big businesses? Are they easy for everybody to understand? Are the rules certain and predictable? Do they protect businesses from arbitrary decisions by local authorities and do they actually hold local authorities accountable for their actions? Are the stated rules actually applied by local institutions and are the procedures for their application and enforcement transparent and sufficiently accessible to all business actors? Finally, would the rules be more reliable if they were to assimilate principles and standards based on the models of Western law familiar to foreign investors? The legal studies have emphasized the importance of legal reforms in the development of the region s market economies. Some legal scholars have focused on the reforms undertaken following Asia s 1997/1998 financial crisis in order to determine how strengthening the rule of law and building institutional infrastructure have influenced economic prosperity and business development in the region. 6 Other studies, considering the multi-layered legal framework to be a complex relationship among international, regional and national laws in the region, have attempted to find out whether local laws and standards comply or conflict with international agreements. 7 Yet other studies have analyzed legislation against the backdrop of the customary rules and values of the local societies and have tried to find out whether any observed lack of compliance is the result of a lack of understanding of state laws by the local communities and institutions. 8 4 Intra-regional trade in Asia in 2006 accounted for 51.9 percent of total trade in Asia. See P. Gruenwald and M. Hori, Intra-regional Trade Key to Asia s Export Boom, supra note 1. 5 C. Campbell, Legal Aspects of Doing Business in Asia and the Pacific, vol. 3 (The Hague: Kluwer Law International, 1998) at 2. *Faculty of Law, University of British Columbia. The research for this article is supported by the Major Collaborative Research Initiative Grant of the Social Science and Humanities Research of Canada and it is a part of the project on Cross-Cultural Dispute Resolution. 6 See for instance C. Antons and V. Gessner, eds., Globalisation and Resistance, Law Reform in Asia since the Crisis (Portland: Hart Publishing, 2007). 7 See for example C. Wu, One Country, Two Legal Systems, and Three Memberships: Legal and Economic Integration between China and its Two SARs (2007) 7:3 Global Jurist (Advances), Article 7 available at http://bepress.com/gj/vol7/iss3/art7, M. Ulric Killion, China and Neo-liberal Constitutionalism (2003) 3:2 Global Jurist Frontiers, Article 3, available at http://bepress.com/gj/, K. Pistor and P.A. Wellons, The Rule of Law and Legal Institutions in Asian Economic Development: 1960-1995 (Oxford: Oxford University Press, 1999). 8 See D. Nelken and J. Feest, eds., Adapting Legal Cultures (Portland: Hart Publishing, 2003), D. Martiny, Traditional Private and Commercial Law Rules under the Pressure of Global Transactions: The Role for an International Order in R. Appelbaum, W. Felstiner and V. Gessner, eds., Rules and Networks; The Legal Culture of Global Business Transactions ((Portland: Hart Publishing, 2007) 123-159, and D. Cass, B. Williams and G.
After the financial crisis in Asia numerous organizations and institutions, including banks, NGOs, academic and research centers, and Western law firms, offered Asian states and their governments technical and financial assistance in their quest to transform local laws and institutions. 9 That help came with a handful of ready-to-use models of Western laws and institutions essentially, a shortcut to establishing market economies. International institutions and organizations such as the 1947 General Agreement on Tariffs and Trade (GATT), 10 the agreement establishing the World Trade Organization (WTO), 11 the World Bank, the International Monetary Fund (IMF) 12 and the Organization for Economic Cooperation and Development (OECD) 13, have fostered the creation of common rules for globalized trade that inevitably minimize state intervention in economic development. For example, this has been done both through the framework for international trade built around the GATT and WTO agreements that regulate state obligations and through the great number of international conventions that regulate specific private business transactions such as the international sale of goods, the bills of lading and leasing contracts, or determine mechanisms of disputes related to international trade and investments. 14 It is noteworthy that most of the earlier mentioned legal studies have found that, since 1998, economic development in Asia has been facilitated by specific legal regimes built on an interesting mix of state regulatory power and the increasing influence of the international institutions assisting Asia in its legal and socioeconomic changes. 15 The state remains an important actor in regulating (and, in some cases, even in managing) the economic sector, usually by borrowing Western laws and Western practices in order to achieve fast modernization of local societies and economies. As a result of the above mentioned national and international regulatory attempts, legal reforms in Asia appear to rely on a continuing series of borrowings of Western legal principles, either through accession to and internalization of international treaties or through the adoption of Western-style laws by national legislatures. 16 In either Barker, eds., China and the World Trading System; Entering the New Millennium (Cambridge: Cambridge University Press, 2003) 9 For analysis of the Asian financial crisis that hit Korea, Indonesia, Thailand, Malaysia, Philippines and to a less extent Singapore see in K. Jomo ed., Southeast Asian Paper Tigers? From Miracle to Debacle and Beyond (London: RoutlageCurson, 2003). 10 General Agreements on Tariffs and Trade, 30 October 1947, 55 U.N.T.S. 187. 11 Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 U.N.T.S. 3 (entered into force 1 January 1995) ( Marrakesh Agreement ). See the WTO official web site http://www.wto.org. 12 For more on the International Monetary Fund see http://www.imf.org/external/. 13 For more on the OECD see http://www.oecd.org/pages/0,3417,en_36734052_36734103_1_1_1_1_1,00.html. In brief, the OECD contributes to convergence of business laws by encouraging national regulators to adopt particular models of legislation endorsed by the organization. Currently, the OECD is involved in legislative reforms of over 70 developing countries. 14 The International Trade Centre (ITC), an agency of the WTO and the UNCTAD, maintains a data base on ratification of international trade instruments by country (LegaCarta available online at www.legacarta.org). A compiled data refers to the term international instruments which is broader than a term treaty because it includes not only international trade treaties (or conventions) but also model laws and trade usages. According to the ITC data, each country in the world ratifies at average 74 of 217 international instruments related to trade. A country in Asia ratifies at average 63 of 217 international instruments. For example, China ratified 102, India 92, Indonesia 70, Japan 118, and Korea 94 of 217. The first on the list is the Netherlands with 155 ratified international instruments. But note that Singapore, the first on the World Bank Doing Business Report list of the easiness of doing business, ratified only 82 of 217 international instruments. It is noteworthy that Canada ratified 98, the United States 107, and the United Kingdom 138 of 217 international instruments. 15 See, for example, all contributions to the volume by C. Antons and V. Gessner, eds., Globalisation and Resistance, supra note 6. 16 K. Pistor and P.A. Wellons, The Rule of Law and Legal Institutions in Asian Economic Development, supra note 7. Indeed, Pistor and Wellons found that China, Hong Kong, India, Japan, Korea and Taiwan all received Western
case the adoption of well-known and already-tested laws of other states, or of the accession to international treaties borrowing is appealing. It is a time and cost efficient shortcut to legal reforms and an immediate response to the need foreign investors have to operate within a certain, predicable legal environment. Similarity of national business laws and the acceptance of international standards are viewed as important elements of the harmonization of business laws upon which international business and cross border transactions depend while diverse laws are usually seen as obstacles to regional business and even more so to international business. However, that borrowing is usually selective and filtered by the local cultural, historical, religious, social and political context. Ultimately, rules that appear similar and harmonious on the books become interpreted and applied differently by different communities. Adoption of the WTO rules and disciplines certainly leads to the harmonization of trade rules and, as long as those rules are uniformly interpreted and applied in each member state, brings certainty and predictability to the legal framework for business. However, uniform interpretation and application of the WTO rules depends not only on the political will of the member states to comply with the rules but also on the complexity of their domestic legal and political systems, on whether they posses the financial resources to introduce the reforms necessary to support application of the WTO rules, and on the ability of the local legal culture to absorb the Western ideas of trade liberalization and the rule of law. 17 Thus, despite the apparently significant similarity between Asian and Western business laws, the decision to conduct business in Asia should also take into consideration the procedural dimension of legal rules, or the way in which similar or even the same legal rules are actually interpreted and enforced locally, 18 and the effectiveness of local institutions in securing the interests of the business community. Each year the World Bank investigates business regulations around the world and publishes country evaluations in its Doing Business report. 19 The Doing Business 2008 Report suggests, for example, that requirements for complicated, multi-stage processes of incorporation and registration of business, which also tend to be costly and timeconsuming, are the most cumbersome ones. These processes are daunting to businesses, which could lead to the development of an informal or grey economy. They are also burdensome to the ultimate consumer because the higher transaction costs usually result in a higher final price of products. Moreover, the cumbersome (rules and) procedures create ideal conditions for a culture of bribery of the local authorities in charge of registering and approving business start-ups. Thus, the preferred is a simplified but transparent process. However, the Doing Business the World Bank report does not address the end goal of the laws that mandate these complex procedures. Therefore, the possibility does exists that some such procedures and a significant level of governments restrictions on private economic freedoms might have as their objective to provide legal laws during their colonial past in the second half of the nineteenth century Hong Kong and India received English common law while other received primarily French and German legal systems. 17 For more on adoption of the rule of law principle in Asia see R. Peerenboom, ed., Asian Discourses of Rule of Law Theories and Implementation of Rule of Law in Twelve Asian Countries (London and New York, RoutladgeCruzon, 2004). 18 K. Pistor and P. A. Wellons, supra note 7. 19 Doing Business 2008 Report compares 46 Sub-Saharan, 31 Latin American and Caribbean, 28 Eastern European and Central Asian, 24 East Asian and Pacific, 17 Middle East and North African, and 8 South Asian countries against the benchmark consisting of 24 OECD high income economies. See http://www.doingbusiness.org (last accessed on February 9, 2008). The study is based on the analysis of data collected until June 1, 2007. The report focuses on the legal rules and procedures governing: (a) starting a business; (b) dealing with licencing; (c) employing workers; (d) registering property; (e) getting credit; (f) protecting investors; (g) paying taxes; (h) trading across borders; (i) enforcing contracts; and (j) closing a business. The data generated for each country, taken together, is a measure of the ease of doing business in that country.
security, certainty and better screening by government of business activities. They might be intended to protect business from arbitrary actions on the part of local officials and they might even be transparent and non-discriminatory. The 2007 Word Bank Institute paper on the rule of law and economic growth finds that, over the past three decades, Japan, South Korea and China have consistently recorded high economic growth (at least 5 percent per year) despite the fact that they impose significant restrictions on economic freedoms and have governments that actively intervene in the economy. 20 Similarly, Pistor and Wellons in their study of the influence of the role of law and legal institutions in economic development in Asia during the period from 1960 to 1995 suggest that the state and strong bureaucracies have played a more important role in their development and that the states have adopted Western business laws as a means of promoting state control over economic resources in addition to jump starting economic development. 21 Thus, substantively similar laws have been used in the West and in Asia but by different institutions and in significantly different procedures; and, yet they brought about a similar result that is, economic development. The liberalization of trade at the multilateral and regional level makes it easier for national businesses to trade with and invest in other markets but it also intensifies the influence of international law on private business transactions in each country. On the other hand, there is not the chance that even businesses that operate within the confines of a single state are not affected by the myriad of legal provisions normally enacted in order to implement and to give meaning to international treaties locally. Thus, teaching the law of international business transactions should address a global perspective as much as the ways in which such a perspective gets transposed locally. 20 D. Kaufmann, A. Kraay and M. Mastruzzi, Governance Matters VI: Aggregate and Individual Governance Indicators 1996-2006, World Bank Research Policy Working Paper WPS 4280, July 2007. 21 K. Pistor and P.A. Wellons, supra note 7.