Enforcing DEFA Compliance within ASEAN’s Rules-based Framework

In this second part of our two-part series on the ASEAN Digital Economy Framework Agreement (DEFA), Dr Tan Hsien-Li and her team explore the critical aspect of compliance within ASEAN's Rules-based Framework and offer their recommendations.

By Dr Tan Hsien-Li. Assistant Professor at the Law Faculty; and Co-Director of the ASEAN Law and Policy Programme at the Centre for International Law (CIL) at National University of Singapore (NUS), Chan Sze-Wei, Research Associate in the ASEAN Law and Policy Programme at CIL, NUS and Ms Yvette Foo, Research Assistant in the ASEAN Law and Policy Programme at CIL, NUS.

 

Within ASEAN’s rules-based order, compliance with both hard legal obligations and soft legal commitments is expected, and the enforcement of DEFA and its secondary instruments could manifest in two main ways. Firstly, as previously mentioned, DEFA is likely to be a treaty with binding obligations and dispute settlement provisions to address violations or interpretive differences. In the event that DEFA does not contain specific dispute settlement provisions, as a treaty arising out of the ASEAN economic sector, it will very likely have provisions referring to the ASEAN Protocol on Enhanced Dispute Settlement Mechanism (EDSM, 2019). As stated in Article 24(3) of the ASEAN Charter (the ASEAN Community’s ‘constitutional’ treaty), the EDSM is a general dispute settlement treaty that may be used for all disputes arising out of ASEAN economic treaties. Moreover, Article 1(1) of the EDSM explicitly states that it can apply to ‘future’ ASEAN economic agreements. It is worth flagging again that ASEAN members have erstwhile been reluctant to use any of ASEAN’s dispute settlement mechanisms to resolve differences among themselves.

In such an environment, the ASEAN rules-based order has developed monitoring mechanisms as an alternative modality to ensure compliance. General oversight would be vested in the ASEAN economic ministers who are supported by the senior civil servants and their staff from their respective national agencies responsible for implementing digital economic integration. Using the BSB Roadmap as an example, the ASEAN Coordinating Committee on Electronic Commerce serves as the main implementing body with oversight by the ASEAN economic ministers and senior officials and updates the economic, digital, finance sectors’ ministers, and central bank governors. A similar arrangement of having a coordinating committee may be required for DEFA given its broad, cross-sectoral relevance. Foreseeably, at the national level, implementing and monitoring digital integration measures flowing from DEFA would not only be undertaken by economic, trade, and industry ministries, but this would also involve input from the digital, telecommunications, labour, and national development ministries.

Implementation and monitoring lessons can again be drawn from the Masterplan on ASEAN Connectivity 2025 (MPAC 2025) and its Mid-Term Review. ASEAN connectivity initiatives were supported by the establishment of the ASEAN Connectivity Division within the ASEAN Secretariat, and the designation of national focal points and coordinators. The Mid-Term Review found that ‘progress has been uneven’ across various areas of the Masterplan. The forthcoming full-term review of MPAC 2025 should also reveal lessons on the implementation of coordinating structures at the ASEAN and national levels, who were handed responsibilities of enormous complexity with varying levels of success.

Alternatively, DEFA may task the ASEAN Secretary-General and Secretariat as the centralised regional institution to monitor DEFA’s implementation. Such a provision would be in line with Article 11(2)(b) of the ASEAN Charter that articulates the ASEAN Secretary-General’s general monitoring competences, including the submission of an annual report to the ASEAN Summit on the implementation of ASEAN agreements. This monitoring duty is shared with the ASEAN Secretariat and ‘any other designated ASEAN body’ (Article 27 of the ASEAN Charter). ASEAN’s prioritisation of economic integration means that monitoring is the most advanced in the economic pillar, and hopefully such rigorous monitoring would be applied to track ASEAN’s digital economic integration. Again using the ASEAN Digital Masterplan as an example, this instrument led to the establishment of the Digital Economy Division in the ASEAN Secretariat in 2022 as the project management team (formerly known as the Information and Communication Technology Division).

More broadly, the ASEAN Integration Monitoring Directorate of the ASEAN Secretariat is beginning to administer the Monitoring and Evaluation Framework (M&E Framework) in three important ways.

First, there is compliance monitoring where quantitative and qualitative data are collected from member states and sectoral bodies. Genuine implementation must be evidenced — merely enacting national legislation or policy to ‘comply’ with ASEAN economic instruments without taking follow-up action is insufficient. Additionally, country visits are part of the oversight protocol.

Second, there is outcomes monitoring to ensure that AEC instruments produce the expected practical results of prosperity and development, and economic indicators of national and regional development arising from integration are measured. These include trade flows, national product, and national income.

Third, impact evaluation is measured — positive and negative integration effects and equitable development in ASEAN societies are examined to see how individuals and communities have benefited from the integration measures. The M&E Framework’s objectives are very much in accord with DEFA’s ideals. If ASEAN’s digital economic integration is as important as emphasised, such close monitoring would enable ASEAN members to attain their collective digital economic aspirations but would also require member states to commit resources for the necessary monitoring work at both the ASEAN Secretariat as well as national levels. The Secretary-General and Secretariat have a vital supporting role facilitating regional engagement.

Lastly, and no less importantly for compliance and monitoring, ASEAN cooperation entails numerous meetings. As ASEAN holds more than 1,500 meetings annually to discuss work-in-progress, the transparent accountability demanded at these meetings inevitably pressures members to keep to integration commitments. Such frequent engagement becomes a form of mutual accountability and enforcement. The transparent accountability demanded at these meetings inevitably pressures members to keep to commitments as increased transparency generates peer pressure to comply and deters member complacency on integration.

As the first major regional digital economy agreement, DEFA’s ambitious goals of transforming ASEAN’s economy and intensifying digital integration will be closely observed. To unlock its promised potential of USD 2 trillion contribution to the ASEAN economy, negotiators will need to prepare a sufficiently adaptable and all-encompassing instrument that can accommodate the digital revolution in ASEAN for now and further into the future.

 

The views and recommendations expressed in this article are solely of the author/s and do not necessarily reflect the views and position of the Tech for Good Institute.

 

 

About the writers

Dr Tan Hsien-Li is Assistant Professor at the Law Faculty; and Co-Director of the ASEAN Law and Policy Programme at the Centre for International Law (CIL) at National University of Singapore (NUS).

Chan Sze-Wei is a Research Associate in the ASEAN Law and Policy Programme at CIL, NUS. Sze-Wei’s research focuses on the development of ASEAN institutions and legal frameworks, and is a continuation of their involvement in  the ASEAN Charter drafting process from 2006-2007 while working in the Singapore Foreign Service.

Ms Yvette Foo is a Research Assistant in the ASEAN Law and Policy Programme at CIL, NUS, and Assistant Production Manager for the Asian Journal of International Law. She is researching ASEAN economic integration and dispute settlement mechanisms.

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Mouna Aouri

Programme Fellow

Mouna Aouri is an Institute Fellow at the Tech For Good Institute. As a social entrepreneur, impact investor, and engineer, her experience spans over two decades in the MENA region, South East Asia, and Japan. She is founder of Woomentum, a Singapore-based platform dedicated to supporting women entrepreneurs in APAC through skill development and access to growth capital through strategic collaborations with corporate entities, investors and government partners.

Dr Ming Tan

Founding Executive Director

Dr Ming Tan is founding Executive Director for the Tech for Good Institute, a non-profit founded to catalyse research and collaboration on social, economic and policy trends accelerated by the digital economy in Southeast Asia. She is concurrently a Senior Fellow at the Centre for Governance and Sustainability at the National University of Singapore and Advisor to the Founder of the COMO Group, a Singaporean portfolio of lifestyle companies operating in 15 countries worldwide.  Her research interests lie at the intersection of technology, business and society, including sustainability and innovation.

 

Ming was previously Managing Director of IPOS International, part of the Intellectual Property Office of Singapore, which supports Singapore’s future growth as a global innovation hub for intellectual property creation, commercialisation and management. Prior to joining the public sector, she was Head of Stewardship of the COMO Group and the founding Executive Director of COMO Foundation, a grantmaker focused on gender equity that has served over 47 million women and girls since 2003.

 

As a company director, she lends brand and strategic guidance to several companies within the COMO Group. Ming also serves as a Council Member of the Council for Board Diversity, on the boards of COMO Foundation and Singapore Network Information Centre (SGNIC), and on the Digital and Technology Advisory Panel for Esplanade–Theatres on the Bay, Singapore’s national performing arts centre.

 

In the non-profit, educational and government spheres, Ming is a director of COMO Foundation and Singapore Network Information Centre (SGNIC) and chairs the Asia Advisory board for Swiss hospitality business and management school EHL. She also serves on  the Council for Board Diversity and the Digital and Technology Advisory Panel for Esplanade–Theatres on the Bay, Singapore’s national performing arts centre.

 

Ming was educated in Singapore, the United States, and England. She obtained her bachelor’s and master’s degrees from Stanford University and her doctorate from Oxford.