I The Law of the Horse

Judge Frank Easterbrook once argued that rather than establish narrowly defined areas of legal research, scholars should stick to the study of general rules, which can be applied to any number of subject areas. The specific target in Judge Easterbrook’s crosshairs was cyberlaw, which was ascendant in the 1990s. His argument, and the metaphor within, is worth quoting at length:

Lawrence Lessig responded to Judge Easterbrook’s denunciation of cyberlaw as a specialized field of study. Lessig did not defend “the law of the horse,” but rather argued that the study of the intersection of law and cyberspace could teach us something that we otherwise would not learn.Footnote ² That something, for Lessig, was that the “architecture” or soft and hardware of cyberspace could itself have regulatory effects on behavior, functionally equivalent to law.Footnote ³ Lessig elaborated his assertion in his book Code and Other Laws of Cyberspace (1999), which opened up whole new fields of scholarship on cyberlaw, the internet, and other digital domains. Lessig showed that the study of cyberlaw was itself generative of new rules of general application. In retrospect, Lessig’s argument in “the law of the horse” debate carried the day.

Inter-Asian Law (IAL) may also be dismissed as another “law of the horse.”Footnote ⁴ Critics may deem it to be geographically circumscribed and parochial, an exercise in extracting more general legal phenomena and shoehorning them into a regional setting or, worse yet, a dressing up of long-standing relationships in post-colonial language. Seen in such a light, Judge Easterbrook’s opprobrium would seem to return; IAL may be “doomed to be shallow and to miss unifying principles.” In short, “there is no ‘there there’.”

Contrary to the above view, we believe IAL is just starting. To be clear, there are important antecedents, for example, the spread of Confucian ideas about ethics, morality, and law from China to Korea as early as the third century CE and several centuries later in Japan. Legal scholars have suggested that these rich historical layers of repeated borrowing and cross-borrowing are productive of “Confucian constitutionalism” in East Asian states.Footnote ⁵ For sure, religio-philosophical traditions that were formative of premodern IAL warrant more scholarly attention.Footnote ⁶ For purposes of this volume, our focus is on the contemporary context for IAL, expounding the idea that whereas IAL is, in many instances, embryonic, it nonetheless is beginning to affect domestic and transnational legal orders. While nascent, IAL will likely only grow in the future. Current trends for global trade and investment devalue globalization and prioritize regionalization or supply chain realignment. These shifting geo-economic conditions, including those found in the Asian region, are poised to foment more IAL. Consequently, IAL provides a lens into what the future may be, extending beyond Asia.

The payoff, then, in studying IAL is to understand the emergence of intra-regional law, including sub-national, national, and transnational levels, outside Euro-America, which potentially has dynamism precisely because the locus of the law is non-Western. More specifically, there are two broad takeaways. First, whereas IAL is not fully divorced from Anglo-American and European civil law and in some instances is derivative from Western law, it features its own normative origins, dynamics, processes, trajectories, and effects. These are worthy of study unto themselves as, to some extent, they fulfill post-colonial historian Dipesh Chakrabarty’s charge to “provincialize Europe.”Footnote ⁷ Second, IAL may serve as a springboard for a comparative study of intra-regional law. By this, we mean not only IAL, but also inter-Latinx law, inter-African law, and inter-European law, among other post-global futures.Footnote ⁸ In the remainder of this chapter, we first summarize and synthesize the findings of the volume pursuant to the analytical framework proposed in the Introduction: The Emergence of Inter-Asian Law. Next, we expand beyond the findings to suggest the broader significance of IAL and provide an outline for an agenda for future research. Lastly, we propose an agenda for comparative and international study in a period of heightened regionalization.

II Analytical Findings

IAL shows emerging interactions between and among Asian jurisdictions that are generative of legal, policy, and regulatory innovation. These include both substantive and procedural law. Substantive law reveals a wide range of legal domains, from religious freedom and abortion to corporate law and alternative dispute resolution (ADR) to cybersecurity and artificial intelligence (AI) regulation. Procedural law includes lay assessors as adjunct adjudicators and treaty formation through consensus formation. In each of these examples, law from Asian jurisdictions serves as a normative resource, and it is this law that is subsequently incorporated into the domestic legal framework of the recipient or host state. Yet, in most cases, with possible exceptions like the Association of Southeast Asian Nations (ASEAN) multilateralism, IAL does not lead to a homogenous body of law. Even in extreme cases of export from a hegemon to a weaker jurisdiction, the latter adapts law according to its own institutional framework and policy needs. While the development of a distinct body of law is not an impossibility, for the near term, contextualization, localization, and differentiation will likely characterize the growth and spread of IAL.

Returning to the analytical framework set out in the Introduction to this volume, the chapters provide empirical, doctrinal, and theoretical insights into IAL’s origins, mechanisms, and end results. One, the focus on types and methods of interaction helps explain how IAL operates, and the contributions offer instructive examples and analyses. The first is various forms of collaboration, cooperation, or joint/collective efforts. These include, pre-eminently, bilateral relationships of, variously, borrowing, appropriating, diffusing, or transplanting law from one jurisdiction to another. Examples include Vietnam’s borrowing of ADR models from Singapore (Naiki) and Cambodia, Uzbekistan, and Vietnam’s use of Chinese law, including cyber/data as well as constitutional provisions (Erie). Another type of collaboration is various instances of exchange of best practices and regulatory learning (Hans, Lin). A third type is cross-referencing of cases, laws, or soft law (Yew, Das Acevedo, Naiki). A fourth type is multilateralism, which may be more formal as in the case of the Regional Comprehensive Economic Partnership (RCEP) (Hsieh) and Digital Economy Partnership Agreement (DEPA) (Lin) or informal as in the example of the Belt and Road Initiative (Erie).

In addition to the collaborative approach, IAL, specifically, within East Asia, is infused with rivalries. Consequently, there is also a competitive alternative to cooperation. Examples include Singaporean, Chinese, and Japanese actors vying for supremacy in their smart city projects in emerging economies in Southeast and South Asia (Naiki) and, likewise, Chinese, Japanese, Korean, and Taiwanese contesting for optimal regulatory approach to global technology supply chains (Lin). Collaboration and competition are not mutually exclusive; many inter-Asian relationships exhibit both at the same time for different types of legal questions.

Both the collaborative and competitive approaches highlight (in)compatibility between legal systems and reveal two sub-regional clusters. The first cluster is the East Asian civil law systems. China, Japan, Taiwan, and Korea show some readiness to borrow from each other, although historic frictions that survive to this day can shape outcomes. Parallels in constitutional jurisprudence and democratic process in Taiwan and Korea allowed for policy learning during the COVID-19 pandemic crisis (Chang and Lee). Japan and China, in particular, have sometimes emerged as norm exporters. Singapore is a slight outlier in its being a common law system and yet one that has, to some extent, bridged the common law–civil law divide by influencing legal development in such civil law jurisdictions as Vietnam (Linh) and ASEAN states, which are predominantly but not exclusively civil law systems (Naiki). The second cluster is South Asian common law systems. Here, India is the leading exporting state and has influenced development among its neighbors (Tew, Das Acevedo). In the South Asian cluster, we see post-colonial inheritance fostering compatibility between legal systems and creating the conditions for IAL interactions.

Collaboration and competition are not the only types of interaction; contributors also employed IAL interactions in surprising and novel ways that defy such descriptions. For instance, Goto and Puchniak used IAL as a lens for understanding differentiation in corporate law localizations. Pillai employs “IAL as method,”Footnote ⁹ generating hypotheticals that highlight IAL as an imaginative domain that may include such inversions as Nepal operating as normative inspiration for India.

Two, the analytical framework suggests that IAL evolves through different types of actors and intermediaries that facilitate the movement of law within inter-Asia, linking interactions to outcomes. These exist at the sub-national or firm level, for example, company towns (Nguyen) or arbitration centers (Linh). States and their constitutive parts including judiciaries, naturally, comprise a consistent unit for IAL exchanges (Goto and Puchniak, Tew, Das Acevedo, Lin). Transnational networks comprise another type of actor as seen in the examples of networks of officials between home and host states (Erie) or religious networks (Putri and Taylor). Multilateral treaty bodies, whether RCEP (Hsieh), the Singapore Convention (Linh), or DEPA (Lin) may also serve as platforms. Lastly, civil society may also form transnational links, sharing normative resources (Chang and Lee). The density of these overlapping actors and intermediaries comprises one of the defining elements of inter-Asia.

Three, IAL leads to diverse effects, consequences, and even conflicts. First, in the wake of the US–China trade war, deglobalization, and the sidelining of the World Trade Organization, other multilateral, mega-preferential, and plurilateral agreements have taken root, and many of these are in Asia. These include the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, RCEP, and the Asia-Pacific Trade Agreement. Pursuant to anti-globalization, which is causing a downsizing in international law globally, from “mini-deals”Footnote ¹⁰ to “micro international law,”Footnote ¹¹ inter-Asia is becoming the site for a recalibrated and chastened yet nevertheless vibrant international trade and investment law,Footnote ¹² which in turn fosters new forms and vectors of IAL.

Beneath this layer of international economic law, the coupling of “regional international law”Footnote ¹³ with the resilience of Asian economiesFootnote ¹⁴ means that global supply chains, which are already rooted across inter-Asia, will most likely continue to deepen and expand despite the global headwinds and geopolitically driven realignment. As Mae Nguyen shows in her chapter, inter-Asian company towns that support such supply chains have become centers for multi-layered contracting, including contracts that use the local host state law as governing law.Footnote ¹⁵ Following global trends, these supply chains may be shifting, but they are doing so within the region (e.g., from China to Vietnam). That said, regionalization or decentering might not come easily, as institutional inertia and path dependency persist.

As a result of the commercial activity within the region, as Linh demonstrates in her chapter, the regional centers for dispute resolution, namely, Hong Kong and Singapore, have attained not only regional pre-eminence but also international renown. Second-tier cities, including Seoul, Shenzhen, Tokyo, Dubai, Kuala Lumpur, and Shanghai, are gaining ground, followed by third-tier cities like Jakarta, Ho Chih Minh City, Bangkok, Nur-Sultan, and others. The inter-Asian dispute resolution ecosystem is extraordinarily active, if not over-crowded. These centers are engaging through soft law, cross-training, and institutional and regional promotion. While many of these centers will fail, others will continue to thrive and ascend the international rankings.Footnote ¹⁶

In addition to intra-regional lawmaking and dispute resolution, there are two other observations from the studies. First, and somewhat surprisingly, many of the IAL interactions have not resulted in convergence or harmonization. In fact, interactions have, in several instances, caused increased differentiation as local host states incorporated normative resources within their existing legal, political, and economic frameworks. Chapters by Das Acevedo, Tew, and Goto and Puchniak most clearly exemplify what the latter term “strategies for adaptation and localization.” In a similar vein, in her chapter, Naiki shows that whereas ASEAN states were open to Japanese guidelines as a template for their own smart city guidelines, they also explicitly labeled them as Japanese, which Naiki interprets as an intentional act of distancing. In short, IAL interactions do not lead to legal sameness; country-of-origin matters, including for transplanted norms.

Second, and perhaps less surprisingly, regional heavyweights like China cause legal and regulatory spillovers in neighboring jurisdictions. DeLisle creates a taxonomy of these influences in the example of the People’s Republic of China (PRC) and the Hong Kong Special Administrative Region (SAR). These influences are not reducible to transplants and represent a spectrum from formal impositions of PRC law to PRC pressure on Hong Kong lawmakers to adopt measures within the SAR framework in light of PRC interests. The PRC–Hong Kong story is a strong case for IAL, even if the political relationship between the two polities (i.e., the SAR is technically part of the PRC) makes the relationship unique.

Despite that uniqueness, some of the informal nature of PRC–Hong Kong IAL is replicated in China’s relationships with sovereign states in Central Asia and Southeast Asia, as Erie shows in his chapter. The transnational networks that Erie’s study points to are also consequences of China’s economic and political clout in those countries. Yet, contrary to the Hong Kong example, countries like Vietnam have a much higher degree of sovereignty than the SAR. Their incorporation of Chinese-inspired legal, regulatory, and institutional innovations may not necessarily benefit the PRC; rather, they may use them to bolster their own sovereignty and even contest Chinese encroachments through, for example, their own version of data localization.

In summary, just as IAL movements may lead to greater localization rather than convergence across borders, so too may borrowing from regional powers augment differentiation instead of simply feeding neo-imperial projects although greater legal interactions can also create the conditions for economic interdependence.

III Broader Significance

The wider value of IAL is to suggest not the narrative of the “decline of the West and the rise of the rest” popularized by certain Asian autocrats; instead, Asian jurisdictions – collectively and in competition with one another – are building local, regional, and transnational law to address issues of practical and theoretical importance. These include greater commercial ties, corporate governance, multilateralism, resolution of conflicts, infrastructure development, public order pertaining to religious freedom, women’s rights, and constitutionalism, authoritarian creep, digital economy, and advanced technologies like AI and those in smart cities. In creating law to address such concerns, Asian jurisdictions are not exclusive. IAL is not monopolistic; rather, it integrates Western and global law influences, as seen in such examples as AI governance (Lin) and court reforms (Hans). Asian law is thus one referent among many in an increasingly complexified sourcing of law globally.

IAL shows that legal origins are becoming more diversified. Moving away from the conventional typology of common law originating from England and civil law from France, Germany, and Switzerland, IAL demonstrates the growing importance of China (Erie, Lin, DeLisle, Naiki), India (Yew, Das Acevedo, Pillai), Japan (Hans, Naiki), Singapore (Linh, Naiki, Goto and Puchniak), and Saudi Arabia (Putri and Taylor). Further, IAL shows greater and intensified hybridization and pluralization of legal origins, including not only common law and civil law but also religious law and digital law. Law travels horizontally (Erie, Putri and Taylor) and vertically (Hsieh, Lin).Footnote ¹⁷

Diversification of sourcing law may shape legal flows and outcomes, including the trajectories of legal development in host states. Authoritarian forms of law, for instance, may gain popularity alongside liberal law. Globally, democratic and liberal systems are undergoing backsliding in confronting populist pressures;Footnote ¹⁸ in concert, authoritarian legal systems may possibly gain appeal among low-income states featuring non-liberal or weak democracies. While it is not easy to infer causal relationships between stagnant or retrograde democracies and surgent authoritarians, it is clear that established democratic states face new competition in the form of authoritarian versions of legal development overseas.Footnote ¹⁹ China is the most prominent actor in this new competition, but there are others including Singapore. India, the other major Asian power, and the would-be largest democracy in the world, has undergone its own slow slide into illiberal politics.Footnote ²⁰ While de-democratization appears to be a global trend, the stakes are particularly high in Asia given its combination of major economies, demographic size, and fragile political systems. Deepening authoritarianism in China and illiberalism in India darken the prospects for IAL as a form of autochthonous democratic law.

IV Agenda for Future Research

IAL is in no way limited to the thematic areas covered in this present volume. For instance, one area of law that requires further study is the role of religio-philosophical traditions, whether Confucianism, Buddhism, or other traditions, in promoting IAL.Footnote ²¹ Given the centrality of the family to private law in Asia, family law also warrants elaboration.Footnote ²² Of equal relevance are culture, gender, community, village/folk/customary law, and social movements across Asian jurisdictions, intra-regional environmentalism and climate change innovations, as well as the structure and power in financial regulation, transfer of control, and cross-border consumer protection. All such fields have their historical roots, and because of this, the legal histories of IAL are also ripe for scholarly exploration.Footnote ²³

Further, this volume’s thematic organization into the four sections – commercial law, constitutional law, law’s movements, and emerging problems – is by no means static. It is meant only to provide an entry into the areas of IAL. Each thematic section deserves further and sustained attention, not to mention the overlap or intersection between these thematic discourses. To take one example, given the primacy of business and commercial law in the region, more work needs to be done on consumer law, competition law, corporate law, and insolvency law. Finance law, too, is a sprawling field in Asia, ranging from informal markets to shadow banking to venture capital and alternative development finance, each of which has cross-border elements.Footnote ²⁴ Each of these invites both multi-scalar and multi-disciplinary approaches.

Beyond substantive (or procedural) areas of law specific to IAL, the concept on which IAL is based – intra-regional legal interactions – invites a broader comparative intra-regional approach. How this volume unpacks and contextualizes IAL’s unique characteristics and diverse origins and patterns of influence that shape its contours may also serve as a methodological lens for or at least shed light on other emerging regional developments. One could think of, for example, “Inter-European law,” “Inter-African law,” and “Inter-Latinx law.” Each one shows both internal interaction within the respective region and broader effects internationally.

To provide a thumbnail sketch of each, Inter-European law is not reducible to EU law, the paragon of regional law and which has had spillover effects more globally.Footnote ²⁵ Inter-European law is the interaction of European state legal systems, an interaction with a long history.Footnote ²⁶ More in line with IAL, other post-colonial regions may demonstrate even more interactions and international influence. Inter-African law includes both regional law and influences on international law. For the former, an example is the possibility for African Union Law to produce a continent-wide legal system.Footnote ²⁷ For the latter, at the international level, African scholars have examined the extent to which the “Africanization” of inter-African investment agreements offers a viable alternative to conventional international investment law.Footnote ²⁸

Inter-Latinx law is an active field of legal engagement, cross-fertilization, and regional law. There are numerous instances of a country within the region serving as a model for legal reform in neighboring countries. Examples include the invocation of an “unconstitutional state of affairs” first used by Colombian courts and subsequently borrowed by Brazilian counterpartsFootnote ²⁹ and Mexico’s constitutional provision on prioritizing workers’ claims vis-à-vis secured creditors, which has influenced the constitutions of other Latin American states.Footnote ³⁰ In the Caribbean, states have followed one another in modifying transplanted UK legislation in the field of family law. Examples there include de facto relationships, constructive trusts, and the statue of children.Footnote ³¹ Tracy Robinson has written, “The new states looked at their neighbours and built ideas of Caribbean legal kinship as much as they turned to common law countries in the Global North as a traditional and practical resource.”Footnote ³² Still, inter-Latinx law, like IAL, may demonstrate continued inheritance from and incomplete decentering of established models. For instance, in the digital trade space, Latin American countries have had difficulty moving away from the approach introduced by the United States.Footnote ³³

Each one of these prospective fields could reveal the historical and contemporary aspects of interactions to challenge long-standing conventions in the study of comparative and international law. Going forward, IAL and its parallels may offer pathways to reconsider and reconfigure comparative and international law from the perspective of former peripheries, which may now be emerging as new centers in times of deglobalization and regional realignment.