Author
Dr Anne McNaughton
Organisation/Institution
Country
AUSTRALIA
Panel
International Regulation of Trade
Title
Regional integration, preferential trade agreements and non-tariff measures: a new application for the Functional Method of Comparative Law
Abstract
In 2021, a large number of states concluded an ambitious regional comprehensive partnership agreement, the Regional Comprehensive Economic Partnership Agreement (‘RCEP’). As one of the new generation of preferential trade agreements, RCEP contains chapters addressing the liberalisation of financial services, professional services, government procurement, investment and small and medium-sized enterprises. These chapters are included, ostensibly, to promote greater economic integration that, in turn, is supposed to promote development and deliver greater economic benefits to the citizens of the signatory states. Using RCEP as a case study, this paper interrogates the assumptions underpinning the rhetoric that such agreements promote development and deliver these economic (and other) benefits. The Functional Method of comparative law is applied to address the question of whether it is possible to evaluate meaningfully any domestic reforms undertaken in order to give effect to the treaty obligations contained in the chapters referred to above. Even in the most homogenous of regional groupings, there will be differences in how legal systems (understood broadly to include regulatory and soft governance measures) deal with particular socio-economic and socio-legal issues that the inclusion of chapters focussing on measures behind borders are intended to address. The situation becomes even more complex when one is dealing both with more heterogenous legal and political systems and more complex policy settings, ones that are often in tension with each other. The subject matter of these chapters (reaching, as they do, behind borders) touch on complex socio-economic problems that transcend national borders and require nuanced and mature policy solutions. In addition to the variety of political configurations across the Contracting Parties to this agreement, there are diverse levels of economic development, transparency and good governance as well as differing geographical idiosyncrasies and a variety of cultural, ethnic and religious groups. How then, might the espoused political goals underpinning agreements such as the RCEP be achieved in a meaningful and positive way? This is the broader question that demands a robust research model for investigating the stated aims of regional integration agreements such as RCEP. This paper develops an initial proposal for such a research model.
Biography
I am a comparative lawyer researching at the intersection of international and comparative law. I am also the Director of the ANU Centre for European Studies (ANUCES). As a recipient of a DAAD scholarship, I completed my first LLM at the Eberhard-Karls University in Tübingen (Germany). My thesis examined the incorporation of the territory of former East Germany into the European Union. I completed my second LLM at the University of Technology Sydney (UTS), specialising in International Law (with Distinction). My doctoral thesis, ‘Reshaping the Rules-based International Order: case studies in action’ explored the nature of treaty-based entities such as the EU and ASEAN as New Legal Orders of international law. I am particularly interested in the complex issues associated with how global economic integration affects the local legal framework at various levels. I research the concept of mutual recognition as developed in EU jurisprudence and its migration into international trade treaties and agreements. Building on this work, my current research examines the nature of legal transplants between new and emerging legal systems of international law. I have conducted this research as a member, and research lead, of several research projects funded through the European Union’s Jean Monnet activities programme and the Australian Research Council.
