兩岸投保協議正式上路

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2012 / 9月

文‧李珊


備受大陸台商關注的兩岸投資保障協議,經過長期協商終於完成簽署,為兩岸合作關係建立新里程。


有關兩岸投資保障協議的議題自2010年陸委會在第5次江陳會上提出,經過多次會談與溝通,終於定案。這份攸關兩岸主權定位與司法體制的敏感協議,可謂得來不易。

有學者指稱,大陸的底線是,條文絕不能出現「國際」定位;我方的策略則是「簽得早不如簽得好」,希望為台商爭取到最好的保障。

兩岸投保協議參考國際投保協定的體制,並考量兩岸關係的特殊性,以及協議的執行力,內容包括:投資和投資人定義、適用範圍和例外、投資待遇、透明度、損失補償、爭端解決、聯繫機制等重要議題,相當周延。

糾紛仲裁溯及既往

其中最受矚目的是,投資人和大陸地方政府發生爭端可採取5種解決方式,包括雙方自行協商、上級行政單位「協調」、兩岸主管部門「協處」、兩岸仲裁機構「調解」、行政救濟或司法程序等。

一般投保協議很少涉及的投資人之間爭端,也納入此次協議,過去台商只能選擇大陸當地仲裁機構,未來還能選擇台灣與香港的仲裁機構,並於第三地仲裁,但前提是需經雙方同意。

經濟部表示,這份協議與一般投保協定有很多差異,充滿「兩岸特色」;一般投保協定只適用直接投資,例如去年簽署的「台日投資保障協議」,但由於許多大陸台商經由第三地投資,因此此次特別放寬適用對象,讓透過第三地(如新加坡)投資的台商也能適用。

投資人間糾紛可選擇於第三地仲裁正是利多所在。例如在大陸有11家分店的太平洋SOGO百貨公司,今年7月曾出面指控大陸房東採取斷電、上鎖方式,惡意要求調高租金至一年1.2億人民幣,漲價五倍多;或者如新光三越百貨在「北京新光天地」的經營權之爭,若能在第三地仲裁,對台商較有利。

更重要的是,投保協議效力「溯及既往」。過去如富士康與比亞迪的智財權爭議、新光三越百貨股權之爭,只要還沒解決的,將來都有機會處理。

不過,「投保協議並不是解決所有商務糾紛的萬靈丹,」海基會董事長江丙坤指出,台商投資前準備和防範,比事後處理還重要。許多外商進入大陸,事前多會透過會計師、律師,充分研究大陸法規再投資,台商也應在投資前熟悉法規、了解環境和慎選夥伴。

人身安全更有保障

至於台商最關切的人身安全保障,協議僅做原則規範,兩會以「共識文件」承諾兩岸警察機關會在依法限制投資人及其家屬的人身自由時,於24小時內通知其當地家屬或企業,並透過兩岸打擊犯罪的通報機制,儘速知會對方主管部門。雙方對家屬探視權、律師會見等基本權益也會提供便利。

全國商業總會理事長張平沼認為,協議最明顯的效益在於人身保護的範圍擴大到台商眷屬和員工,以及財產保護;若有任何損及台商財產情事(如土地徵收),對方必須提出正當理由,並在協商後給予台商及時、充分、有效與合理的補償條件,對台商更有保障。

至於協議簽署後能發揮多大的效果,關鍵仍在於執行。輿論指出,過去7次江陳會共簽署16項協議,其中多項協議重簽署不重執行,與社會期待出現很大落差。

台商期待政府能做他們的後盾,投保協議必須徹底落實,才能樹立協議執行的典範。

相關文章

近期文章

EN

The Cross-Strait Investment ­Protection Agreement Arrives

Coral Lee /tr. by Jonathan Barnard

The Cross-Strait Investment Protection Agreement, much awaited by Taiwanese investors in mainland China, has been finalized and signed after a long period of negotiations. It represents a new milestone in cross-strait cooperation.


The creation of an investment protection agreement was first discussed in 2010 at the fifth of the Chen-Chiang Summits, which are talks between Chiang Pin-kung of the ROC’s Straits Exchange Foundation (SEF) and Chen Yunlin of the mainland’s Association for Relations Across the Taiwan Straits (ARATS). It took many rounds of negotiations to finalize. Because the pact touches on sensitive issues connected to sovereignty and judicial procedures, it was not easy to reach.

Scholars say that for mainland China the bottom line was that the language of the agreement could nowhere imply an “international” status. The basic approach from the ROC was “better good than quick.” The goal was to garner the best guarantees for Taiwanese businesses.

The Cross-Strait Investment Protection Agreement was based on international investment protection agreements, which were tweaked to suit the peculiarities of the cross-strait relationship and to ensure enforceability. Its content includes definitions of investors and investments, scopes of application and exceptions, treatment of investments, transparency, compensation for losses, dispute settlement, contact mechanisms, and other important matters. It’s quite a comprehensive agreement.

Arbitration on past issues

What have attracted the most attention are the five methods of resolution that can be employed to resolve a dispute between investors and local governments on the mainland, including voluntary negotiations between the two, appeals to higher-level officials on the side where the investment is made, negotiations between government agencies across the strait, and appeals to arbitration institutions on either side of the strait, as well as administrative remedies and judicial procedures.

Unusual among investment pacts, the agreement also covers disputes among investors. It used to be that Taiwanese businesspeople on the mainland could only pursue arbitration with mainland arbitrators. In the future they will also be able to choose Taiwan and Hong Kong arbitration institutions. What’s more, they will also be able to change the venue to another location altogether, so long as both sides agree.

The Ministry of Economic Affairs has stated that the agreement differs significantly from most investment agreements because it reflects in many ways the special nature of the cross-strait relationship. Most investment agreements, such as the Taiwan-Japan Investment Agreement that was signed last year, are only applicable to direct investment. But because many Taiwanese invest on the mainland through another territory, the agreement took an especially broad approach in whom it was targeting, allowing Taiwanese investing via a third location (say Singapore) to enjoy the benefits of the agreement.

Even more importantly, the impact of the agreement is retroactive. With regard to issues such as the intellectual property disputes involving Foxconn and BYD, or the equity share dispute involving Shin Kong Mitsukoshi Department Store, so long as the disputes haven’t been resolved, the parties can employ the mechanisms facilitated by the agreement to resolve their differences.

“The investment agreement isn’t a magic pill for resolving all business disputes,” says Chiang Pin-kung, SEF chairman, who urges Taiwanese investors to take adequate precautionary measures rather than waiting for problems to crop up and relying on these new procedures. Before investing on the mainland, many foreign investors employ accountants and lawyers to thoroughly research regulations on the mainland. Taiwanese businesses should likewise still become familiar with regulations there, gain an understanding of the political and economic environment, and choose partners prudently.

Personal safety protections

With regard to issues of personal safety, which are of particular concern to Taiwanese business owners on the mainland, the agreement only states basic principles: Via a “document of consensus” the SEF and ARATS agree that when police detain investors or members of their families, they will notify their businesses or families within 24 hours. What’s more, via a mechanism of cross-strait judicial notification, they will promptly notify the appropriate government agency across the strait. Both sides will also meet basic human rights by allowing the detained person to meet with lawyers and have visits from family.

Chang Pen-tsao, chairman of the General Chamber of Commerce of the Republic of China, believes that the clearest benefit of the pact is that the scope of protection has increased to include both families and employees of Taiwanese businesspeople, as well as their property. If the decisions of mainland government agencies impose property losses on Taiwanese investors there, such as by repossessing land before the expiration of a lease, then they have to negotiate with the Taiwanese businesspeople involved and provide compensation. These measures offer more security to Taiwanese businesses.

The ultimate impact of the agreement will depend upon its implementation. Observers have pointed out that many of the 16 agreements reached at the previous seven Chen-Chiang Summits have never been seriously implemented, leaving society with a bitter taste of expectations left unfulfilled.

Taiwanese businesspeople are expecting the government to have their backs. If the new Investment Protection Agreement is to be regarded as a model of cross-strait cooperation, then it must be properly executed.

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