The Emergence of Inter-Asian Law: Normative Origins, Trajectories, and Contours

What if Anglo-American common law and European civil law are no longer the only referents for legal development and innovation in the world? This question is addressed in the forthcoming volume Inter-Asian Law, edited by Matthew S. Erie and Ching-Fu Lin, to be published by the Cambridge University Press’s Studies in Comparative Law series, and featuring sixteen chapters by leading legal scholars from Asia and beyond. This edited volume is the first to present an analytical framework for the new field of ‘Inter-Asian Law’ (IAL). It draws on papers presented at the IAL workshop, December 16 & 17, 2022, National Tsing Hua University, Taiwan.

Building on the paradigm of ‘Inter-Asia’ which has gained ascendance in recent years across a number of scholarly fields in the social sciences and humanities, IAL points to an emerging field of comparative law that explores the legal interactions—historical and contemporary—between and among Asian jurisdictions. These interactions lead to a number of important formations (some caused bilaterally, others resulting from pan-regional trends), including (informal) empire, legal transplantation, law and development, multilateralism and trade blocks, reconfigured global value chains, transnational orders, judicial networks, legal educational exchange, and digital integration, to name a few.

IAL is particularly relevant in the post-pandemic period given shifting geo-politics, increased regionalization, and the importance of key Asian states including Japan, Singapore, South Korea, China, Taiwan, and India. These jurisdictions are both learning from each other through law and, in the process, reconfiguring the substance and procedure of a number of areas of law in the region, and posing ramifications that are felt well beyond Asia.

Degrees of harmonization between Asian jurisdictions are particularly salient in the area of commercial law, and may offer some explanation as to why both individual jurisdictions and the region as a whole have generally performed well economically in recent history. Examples range from investment law to corporate law to dispute resolution, and include procedural and substantive aspects. For instance, ASEAN states demonstrate a distinct process for making multilateral law, such as the ASEAN Comprehensive Investment Agreement that shows, rather than top-down or coercive approaches, how domestic investment regimes can be harmonized to form multilateral agreements. In the field of corporate law, whereas derivative actions, independent directors, and shareholder stewardship have Anglo-American common law origins, they each feature distinct elements in Asian legal systems that in some respects show much more internal convergence than with US or UK law. Likewise, some forms of ADR, including mediation, have gained considerable traction in Asian jurisdictions, and are becoming popularized by both private and state actors. While arguments for legal integration should not be overstated given the complex histories between Asian jurisdictions, the harmonization of commercial laws explains, to some degree, the high volumes of trade and investment between such states.

In parallel, a number of Asia-based multilateral platforms, including the UN Convention on International Settlement Agreements Resulting from Mediation and the Regional Comprehensive Economic Partnership, Asian Infrastructure Investment Bank, Shanghai Cooperation Organization, Belt and Road Initiative, Global Development Initiative, Global Security Initiative, and others, are further shaping both international law and the law and regulatory norms of member states. The salience of these countries, their multilateral organizations, the dynamic flows of law, capital, and legal professionals, and the region as a whole generate legal creativity that warrants interdisciplinary research through doctrinal analyses, case studies, empirical approaches, historical assessments, and other methods of comparative law.

IAL is of increasing importance given ongoing tension between the US and China and the regionalization or even deglobalisation of trade and investment. IAL is not divorced from Western legal systems but demonstrates a complex set of relationships with Western law, such as post-colonialism, ‘late-comer advantages,’ path dependency, and divergence. While there is inheritance, there is also modification and innovation. The 2008 global financial crisis and the COVID-19 pandemic have cast doubt on Western liberal forms of law and governance and calls for decolonizing comparative law have become more urgent. It is no longer the case that legal change derives from Anglo-American common law or European civil law; rather, IAL shows how the Asian region is a dynamic field of legal modernization and experiment, an observation particularly germane during the Covid-19 pandemic and the emergence of data-driven economies. Additionally, IAL does not assume that Asian legal diffusion or convergence is a facile process; rather it operates through and against rivalries, tensions, and conflicts.

IAL spotlights not only comparative law, but also comparative international law, law and history, and law and society. More specifically, IAL touches on such fields as inter alia constitutional law, labor, property, contract, trade and investment, dispute resolution, data governance, law and technology, civil and criminal procedure, human rights, gender, and law and religion. Most fundamentally, at the epistemological level, IAL asks what it means if Asia–and not the West–is the referent for Asia’s own legal modernity.

This volume, the first of its kind, charts out the main mechanisms of IAL, their effects at the national, regional, and transnational levels, and broader consequences for the political-economy of the Asian region and beyond. Specifically, the contributions examine both state-led initiatives at legal harmonization, commercial causes for convergence many of which are driven by lawyers and their corporate clients, judges’ citations to and networks with neighboring courts, and the role of other non-state actors including intellectuals.

Hence, the volume’s individual contributions assess different units of analysis, among them, states, transnational networks, and company towns that effect legal and regulatory change across multiple jurisdictions. The volume explicitly endeavours a form of deep interdisciplinarism to understand the nature and operation of IAL; it tracks between secular and religious law, private and public law, and national and international law. The operating assumption is that hyper-specialization in legal analysis has created siloed thinking which sacrifices historical perspectives and macroregional breadth for doctrinal minutiae. It hence eschews the safety of blinkered thinking and boldly recenters causation.

As such, the volume takes a diachronic view of IAL, ranging from historical approaches that lay a groundwork for understanding the origins and trajectories of legal modernization in the region to contemporary doctrinal and policy analyses that assess how national legal systems have responded to current crises, whether in the forms of pandemics or wars. This emphasis on robust comparison facilitates thinking across disciplinary and national distinctions to show the evidence of and possibilities for legal pasts, presents, and futures that may benefit from Western precedents but also create new bases for solving regional and global dilemmas.

Matthew S. Erie is Associate Professor of Modern Chinese Studies, Member of the Law Faculty, and Associate Research Fellow of the Centre for Socio-Legal Studies, University of Oxford. He can be reached at matthew.erie@law.ox.ac.uk.

Ching-Fu Lin is Professor of Law at National Tsing Hua University. He can be reached at chingfulin@mx.nthu.edu.tw.