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The ASEAN Way or No Way?

A Closer Look at the Absence of a Common Rule

on Intellectual Property Exhaustion in ASEAN

and the Impact on the ASEAN Market

Irene Calboli *

I. Introduction

The Symposium in which this essay is published features recent developments
in the law of intellectual property (IP) in Asia. In this essay, I focus on the Association

of South East-Asian Nations (ASEAN), a region that I have had the opportunity to visit
extensively in the past several years. In particular, I analyze the enforcement of IP rights
in the context of the application of the principle of IP exhaustion in individual ASEAN

Members, and the relationship between this principle and free movement of goods
within the ASEAN region. In the past, I have addressed the same topic with respect to
the laws applicable in the European Union (EU) and the North American Free Trade

Area (NAFTA). As the principle of IP exhaustion states that the owners of IP rights are
no longer entitled to control the distribution of their products after the first lawful sale

in the marketplace, the extent of the application of this principle to cross border trade
is crucial for the free movement of goods in free trade areas.

* Professor of Law, Texas A&M University School of Law; Academic Fellow, School of Law, University
of Geneva; Visiting Professor, Nanyang Business School, Nanyang Technological University. This essay builds upon
my previous research and proposes, with more details, parts of the findings that are published in Shubha Ghosh &
Irene Calboli, Exhausting Intellectual Property Rights: A Comparative Law and Policy Analysis (Cambridge University
Press, 2018). A version of this essay will also appear in the book ASEAN Law in the New Regional Economic Order,
Cambridge University Press, 2019 (Pasha Hsieh & Bryan Mercurio, eds.).

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