The trans-national cybercrime court: towards a new harmonisation of cyber law regime in ASEAN

Abstract

Legal harmonisation of cyber laws in the Association of Southeast Asian Nations (ASEAN) is necessary to combat the transnational nature of cybercrimes. However, this is a difficult task in ASEAN as it requires all ASEAN member states to agree on a uniform cybercrime regulatory framework. The rapid evolution of cybercrime also undermines the strength of a static convention. This leads to the following question: How can a harmonized regulatory framework that would efficiently tackle the rapid evolution of cybercrime be designed? Regrettably, the Budapest Convention failed to facilitate the legal harmonisation in ASEAN with its inability to reach universal consensus. This paper argues that a regional cybercrime court, namely the ASEAN Cybercrime Court, can be an alternative approach to achieving legal harmonisation with the prevalence of cybercrimes. The theoretical framework of this paper is based on the concept of international common law articulated by Andrew Guzman and Timothy Meyer, in which certain members unable to agree on a broad agreement can instead agree to shallow rules to create an institution with authority to promulgate rules. In effect, it reduces the transaction costs for reaching a consensus. This paper also analyses the feasibility and merit of the creation of the ASEAN Cybercrime Court from three aspects: the jurisdiction, the existence of an independent prosecutorʼs office and the legal interpretation. Although the solution is not a perfect answer to legal harmonisation, it serves as a starting point on a path to progress ultimately leading to the conclusion of a binding multilateral treaty.