EDUCATING THE ASEAN PRACTITIONER:

LEGAL EDUCATION IN THE TIME OF THE ASEAN ECONOMIC INTEGRATION

Danilo L. Concepcion
Dean, UP College of Law

In an age where globalization has become a reality, the focus has shifted from a debate on the merits of this

economic order to a more pragmatic discussion on how nations can cope with a borderless world. On December

31, 2015, the members of the ASEAN will follow their counterparts in Europe and the Americas by organizing

the ASEAN Economic Community. This regional economic integration will be characterized by a single market

and production base, and will aim to transform the ASEAN into a region with a free movement of goods,

services, investment, skilled labor, and capital.1 While the economic integration is not as extensive as that of the

European Community, it is nonetheless expected to make a lasting impact on the legal and regulatory

superstructure of each ASEAN member.

One of the modalities of the integration is the harmonization of trade laws of ASEAN countries. The idea is

to avoid duplication so that, for instance, compliance by a party with the laws of Singapore would be considered

compliance with the laws of the Philippines, and vice versa. This modality will usher in a new regime of legal

practice. Hence, law schools must adjust their pedagogy in order to prepare future lawyers for this eventuality.

This short paper intends to identify the changes which legal education has to undergo in order to adapt to or

cope with the effects of the integration. The paper first highlights the expected legal developments in the region.

It then proposes changes in legal education that can be immediately implemented as a short-term response to the

integration. The paper ends with suggestions on how law schools and legal education can get ahead of—if not

influence—the effects of the economic integration on the laws of the ASEAN nations.

Expected Legal Developments in the Region

As far as law is concerned, the main difficulty with the integration is in its implementation. For it to be

effective, there is a need to impose a single regulatory framework on the multifarious economic activities in the

region. However, unlike the EU, the ASEAN integration does not call for a super lawmaking body that can pass

laws and measures with binding effect on all member states. The economic integration only requires ASEAN

1
Asean Economic Community, ASEAN.ORG, http://www.asean.org/communities/asean-economic-community (last
accessed Feb. 18, 2015).
countries to "harmonize" their laws.2 But even if the laws of all ASEAN states are uniform, such uniformity

does not necessarily result to a uniform application by the executive authorities of these states, or to the uniform

interpretation by their respective national courts. 3 This latter problem arises especially because the ASEAN

integration does not provide for a single court to issue authoritative interpretations of these laws.

The economic integration therefore requires harmonization on two levels: first, as to the legislation and

implementing regulations of the different ASEAN legislatures; and second, as to the judicial interpretation of

these legislative fiat. While absolute uniformity may very well facilitate transnational commerce, this regional

interest must be balanced with the reality that the ASEAN is a heterogeneous alliance, and its members have

domestic concerns that their laws must likewise address. In this light, the expected response of ASEAN nations

is to (1) identify a set of common principles for commercial law, and (2) build an ASEAN common law by

recognizing and respecting the interpretations of domestic courts. Legal education in turn must provide the

forum, and act as the catalayst, for the the shaping of the emerging common principles and in minting the

juridical basis for the nascent judicial interpretation.

Identifying an ASEAN commercial jus commune

As a comparatively late mover in regional integration, the ASEAN benefits from the experience of the

European Community, which traces its origins to the Treaty of Rome in 1957.4 Currently, the policy objectives

of the EU are set out in various types of legal acts and instruments. These include regulations of the EU

legislative bodies and decisions of the European Commission, both of which are acts binding on concerned EU

members; and directives, which are legislative acts that set out goals but leave how they are attained to the

concerned states.5 However, even as these institutions were being formed, several proposals geared towards

harmonizing the different private laws of Europe were raised, including the passage of a European Civil Code 6

and a European Code of Contracts.7

Despite the endorsement of the European Parliament, the proposal for a European Civil Code, in particular,

did not pass because the diversities among national systems were strong, legal harmony could be achieved

2
See, e.g., Lim Yew Nghee, Note, A case for harmonisation of ASEAN contract laws, 17 SING. L. REV. 373 (1996).
3
Mauro Bussani & Ugo Mattei, The Common Core Approach to European Private Law, 3 COLUM. J. EUR. L. 339, 345
(1997).
4
The history of the European Union, EUROPA.EU, http://europa.eu/about-eu/eu-history/index_en.htm (last accessed Feb.
18, 2015).
5
Regulations, directives, and other acts, EUROPA.EU, http://europa.eu/eu-law/decision-making/legal-acts/index_en.htm
(last accessed Feb. 18, 2015).
6
Bussani & Mattei, supra note 3, at 349 et seq.
7
See id. at 347.
through other means, and there were disputes as to who should decide to impose a code and the content of the

code itself.8 This said, a similar proposal, even for the more culturally-neutral commercial laws only, appears to

be entirely impracticable in the ASEAN Economic Community as all of these factors are not only present, but

are in fact more pronounced.

Nevertheless, it is possible to identify already-existing principles common to the private and commercial

laws of ASEAN nations, similar to the jus commune of Continental Europe. Once identified, these may assist

national legislations in amending or crafting new laws that would address both the need for regional consistency

and that for responsiveness to the special circumstances of their respective jurisdictions. The potential of an

identified jus commune cannot be fully realized without an ASEAN lawmaking body that can build on these

commonalities to develop legal norms for the region. Nevertheless, because these legal principles are already

extant, the lawyer who wishes to practice in the ASEAN must be aware of its jus commune, as the development

of national laws in an integrated economy without a regional legislature is still likely to revolve around it.

Judicial interpretations of ASEAN private laws

The practical value of law is realized only once it is applied. Hence, the utility from identifying this set of

common principles would disappear should national courts interpret them inconsistently. The question then

turns to how these courts will probably approach the problem of interpretation.

The courts of the United States offer a useful analogue. While interstate commerce is regulated by the US

Congress,9 each state has its own body of commercial laws.10 Generally, state courts apply both state and federal

laws. While the interpretations by federal courts of federal law are binding on state courts,11 it is not uncommon

for state courts to settle questions of law that have yet to be settled by federal courts. Furthermore, a law of one

state may be identical to that of another state, often as a result of deliberate efforts to promote uniformity. 12 In

8
Id. at 349.
9
CONST. (U.S.) art. I, § 8(3).
10
General laws governing corporations, for instance, differ from state to state, as it is a matter left by the US
Constitution to the states in line with federalism. See CONST. (U.S.) amend. X.
11
CONST. (U.S.) art. VI(2). This is also known as the Supremacy Clause.
12
See, e.g., NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS & AMERICAN LAW INSTITUTE,
UNIFORM COMMERCIAL CODE (2007 ed.). The Uniform Commercial Code is a model legislation and represents an effort to
enhance the predictability and uniformity among the commercial laws of the US states.
these last two cases, states may and do often find recourse in the opinions of courts of other states resolving

these legal questions. These opinions have a persuasive character.13

Similarly, while there is no court of justice for the ASEAN, the courts of its members may choose to apply

the judicial interpretations promulgated by the other jurisdictions in the region. Such an arrangement is likely to

be encouraged by the ASEAN itself, especially since any benefits in harmonizing laws would be neutralized if

they were to be applied uniquely in each jurisdiction.

The Immediate Response of Legal Education

It was necessary to review the experience of Europe and the US in order to map out the probable legal

developments in the region. A forward-looking law school must train practitioners to not only deal with a larger

body of foreign legal material, but also to navigate structural changes in the ASEAN legal landscape.

Commenting on legal education’s response to the European economic integration, Van Erp observes that

the “need to educate ‘European’ lawyers, who should have a good knowledge of the major legal systems of the

[European Community] as well as of the [Community] itself” was “not really considered to be a part of the

integrating process.”14 The ASEAN risks repeating this mistake, thereby slowing down the progress of law in

the region and the harvest of the gains from this endeavor. Therefore, the attention now shifts to how ASEAN

law schools can immediately address the legal changes arising from the economic integration.

ASEAN Law Electives

First, there is an obvious need for a basic instruction on the commercial laws of the ASEAN members. This

may be done soon by offering electives or special courses on the subject. In the short run, this appears to be

suitable considering that what ASEAN practitioners would likely require at the inception of the economic

integration is not so much the mastery of foreign laws, but simply a basic understanding of the legal systems and

private laws of the other jurisdictions in the region. In the earlier years of the European economic integration, it

was even suggested that law schools offer “a one year course on aspects of European integration and an

13
However, the opinion of a court of another state becomes a mandatory authority in the cases of (1) conflict of laws
(when the forum applies the other state’s law) and (2) full faith and credit. WILLIAM STATSKY, INTRODUCTION TO
PARALEGALISM 489 (7th ed. 2009).
14
Sief van Erp, Towards a European Law School? Conference on Legal Education in the Future, 1 TILLBURG FOREIGN
L. REV. 103, 103 (1992).
overall introduction in the major legal European systems, combined with a comprehensive course on legal

theory”15 as a practical short-term alternative to instituting a regional law school, as will be discussed later.

Assuming law schools will be able to meet the requirements of their own jurisdictions (such as government

qualifying examinations), there is no reason why ASEAN countries cannot adopt this proposal.

Alternatively, schools may also incorporate the study of ASEAN Law in the various courses that are

already being offered and taught. 16 For instance, a course such as Obligations and Contracts—a 5.00-unit course

in most Philippine law schools—may include a few class hours on general contract law in the other ASEAN

jurisdictions. However, apart from the difficulty with inserting new material in already-saturated courses, a

question might also arise as to whether it is even practical to teach so little of such expansive subjects. In this

regard, the ASEAN Law Association may exert its influence on Law Schools and Regulators of Legal

Education in the member states to confer and discuss the possibility of coming up with a module on the

economic integration that will be made the core of the course that will be adopted by all law schools in the

region as an elective subject in their respective law curriculum.

Premium on Foundational Skills

Second, law schools must equip their students with skills and tools that would allow them to engage in legal

work irrespective of the particular substance of law. These “foundational” skills include legal research and

bibliography, legal writing, and statutory construction, which are often taught in legal method courses. While

the debate in the US has centered on whether there is value in teaching these in a separate subject (as opposed

to teaching them pervasively in the substantive courses themselves), 17 it appears that in an economic

environment that would be regulated by a myriad legal systems, it is both necessary and practical to equip future

practitioners with universal skills that would enable them to work with a larger and ever-growing body of legal

material.

Furthermore, in developing foundational skills, it might also be necessary to teach subjects such as legal

history and legal theory—reworked for the ASEAN practitioner—in order to allow law students a deeper

appreciation and understanding of the 10 legal systems they will work with.

15
Id. at 105.
16
Danilo Concepcion, ASEAN Law and the ASEAN Student, workshop paper, 11th ASEAN Law Association General
Assembly (Bali, 2012), at 6, http://www.aseanlawassociation.org/11GAdocs/workshop6-phil.pdf (last accessed Feb. 18,
2015).
17
See Richard B. Cappalli, The Disappearance of Legal Method, 70 TEMP. L. REV. 393 (1997).
Student and faculty exchanges

Third, in the near future, it would benefit law schools to encourage student exchanges, which would

facilitate the harmonization of legal education in the member countries.18 To encourage students to engage in a

broader study of ASEAN law, schools may provide for a mechanism whereby students can claim credits for

taking substantive law courses in neighboring jurisdictions.

Similarly, member states could also facilitate a system of visiting faculties or lecturers on the topic of law

practice in the region. In the initial stages of integrating the study of ASEAN law into domestic curricula, there

will be a necessity for law instructors to first develop an expertise in the different fields of law practice in the

region.19 Moreover, this appears to be a cost-effective way of exposing a larger section of law students to the

laws of the ASEAN jurisdictions.

To facilitate and expedite the dissemination of significant written material on economic integration, the

ALA may take the lead in establishing a Journal on the integration. This Journal will be an effective forum for

the discussion of legal issues and proposed solutions.

How Legal Education can get Ahead

Regardless of its initial success or failure, the ASEAN economic integration will have long-term

consequences. Law schools must then prepare for the long haul. The hope is that by implementing deeper

reforms, legal education can be more responsive to the new challenges arising from the economic integration

and later actually influence or direct the legal progress in the region.

Restructuring the Law Curriculum and Establishing an ASEAN Law School

First, the law curriculum must be restructured to meet the new realities of the integration. Once the

Economic Community matures, the ASEAN practitioner must have a firm grasp of the law in his or her

domestic jurisdiction and those of the other countries in the region. Clearly, the law curriculum today does not

address that requirement.

18
Concepcion, supra note 16, at 7.
19
Id.
 The ASEAN law schools can find guidance in the proposals to reform the German legal curriculum in light

of the European Community. Brunnee suggested segmenting legal education into two stages, with the first

devoted to the European jus commune, and the second phase for training students in their respective national

laws.20

This is no different from the proposals to establish a European law school, 21 modeled after the so-called

“national” law schools of the US, where students “not only get a thorough introduction into the law of the state

in which the law school is established, but also in the law of other, from an economic point of view, important

states.”22 Van Erp recommends a scheme substantially similar to the German proposal, with only the order of

phases reversed, since “[i]t might be better to give law students a first legal education and training in their

home country. […] Comparing legal systems without considerable knowledge of one of the systems might prove

to be highly difficult and perhaps virtually impossible.” 23

In line with these suggestions, the law curriculum in an “ASEAN” law school can be structured into three

competencies. The first will consist of the teaching of foundational skills, legal theory, and legal history, as

these are tools of legal analysis and would be required for an efficient learning of substantive law, whether

national or foreign. The second will include national political and civil laws and domestic procedural law, as

these laws are likely to apply only within the domestic setting. The third and will be devoted to private and

commercial laws, and private international law—a subject which will become crucial as the number of conflicts

of laws will inevitably rise due to the spike in cross-border transactions. The law schools will determine the

weight that will be given to these competencies, in the exercise of their academic freedom.

Building an ASEAN “Common Core”

Discovering an ASEAN jus commune is only the beginning of building a regional common law. In Europe,

and precisely for this purpose, there was an effort of legal scholars to compile casebooks on particular subjects 24

in order to “provide students (lacking or wishing to improve a specific comparative background) with the

20
Jutta Brunnee, The Reform of Legal Education in Germany: The Never-Ending Story and European Integration, 42 J.
LEGAL EDUC. 399 (1992)
21
Bussani & Mattei, supra note 3, at 341-342.
22
Van Erp, supra note 14, at 103.
23
Id. at 104-105.
24
Namely, constitutional and administrative law, contracts, torts, conflict of laws, company and economic law, criminal
law, and social law. Bussani & Mattei, supra note 3, at 342 n.17. An application of this project to the ASEAN context is
arguably easier since the economic integration will most probably affect only private laws.
elements needed to understand legal systems different from their own.” 25 This is different from but related to

what is called the Common Core project, which aims to “map” the law of Europe and find commonalities in

order to “investigate in depth more specific areas of the law, especially focusing on technical problems.” 26

How are these different from proposals to make ASEAN commercial laws uniform? The Common Core

proponents explain that while they “believe that cultural diversity in the law is an asset, [they] do not wish to

take a preservationist approach. Nor do [they] wish to push in the direction of uniformity.” 27 This appears most

suited to the special context of the ASEAN. Compared to Europe, ASEAN countries are arguably more diverse

in their history, religion, culture, and language, among others. The legal systems in the region were formed by

very different factors over the course of many centuries, some of which are firmly imbedded in the collective

consciousness of the region’s many peoples. To impose a uniform system of laws, even if they be limited to

private or commercial laws, will not only disturb the way of life of the ASEAN people; because it may be

construed as a neo-imperial intrusion into deeply held values and practices, it might threaten peace and security

in the region, for which the ASEAN was originally founded.

Focusing on the deliberately gradual development of a Common Core, therefore, forwards the worthy goals

of economic integration while respecting the innate cultural and social differences among the region’s peoples.

Conclusion

The ASEAN economic integration promises progress for an exciting developing region. Laws in the

ASEAN must follow and adapt to this progress. At the same time, we should recognize that because of its norm-

creating function, law can itself be a catalyst for progress.

The challenge for ASEAN law schools today is to make legal education attuned and responsive to progress.

In the future, its task is to direct this progress by playing a very important role in the formation and development

of the ASEAN jus commone by organizing and mobilizing the legal thoughts and ideas of law teachers,

students, judges, lawyers and practitioners who have a deep and holistic understanding of how the domestic

laws in the region interrelate, into a focused powerful force that, like a powerful laser beam, will shape even the

hardest steel or stone.

25
Id. at 342.
26
Id.
27
Id. at 341.