Exercises from the Sixth Jiang/Chen Meeting

Exercises from the Sixth Jiang/Chen Meeting
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
December 24, 2010

The sixth Chiang/Chen meeting has drawn to a close. The two sides have successfully reached an agreement on "cross-Strait medical and health cooperation." But the meeting has also provoked a string of questions. These questions are even more intriguing than the results of the sixth Chiang/Chen meeting.

The first question concerns the consultation mechanism adopted by the two organizations, and the status of the two organizations. An agreement on investment insurance has yet to be reached. The establishment of a Cross-Strait Economic Cooperation Committee (CSECC) has been postponed. This has raised questions about what the Chiang/Chen meeting accomplished. It has also induced the two sides to issue comments testing the waters. SEF Chairman Chiang Pin-kung said if the two sides fail to sign an agreement, they need not convene another Chiang/Chen meeting. PRC Taiwan Affairs Office Director Wang Yi responded. He said the purpose of the meetings was not merely to sign agreements. It was also to establish a system for future consultations. Indeed, if one recalls the history of previous consultations, not all of them led to the signing of agreements. The Chiang/Chen meetings established an institutionalized consultation mechanism. The MAC considers this one of its major policy achievements.

Chiang's statement however, did make a valid point. Look at the 15 cross-Strait agreements that have been reached. Nearly all of them led to articles establishing direct cross-Strait links, to information exchanges, and to problem-solving between competent authorities. Suppose the status of agreements reached by the two organizations remains unchanged. More cross-Strait agreements will be signed. Fewer and fewer agreements will require the two organizations to act as buffers. But without the two organizations acting as buffers, simmering cross-Strait political issues will be laid bare, and lead to confrontations. That is hardly an answer. Therefore the sixth Chiang/Chen meeting has made another contribution. It has underscored a need to rethink the status of the two organizations.

The second question concerns the postponement of the establishment of a CSECC. The government has never fully explained the nature of the CSECC. Everyone is confused. They misinterpret its significance. This leads to widespread misunderstandings. In fact, the function of the CSECC is quite simple. It is to clarify the position of the ROC Ministry of Economic Affairs to the PRC Commerce Department. It does not change the status quo. This includes other systems, including those under the aegis of the Legislative Yuan. The opposition DPP has caricatured it as some sort of superauthority. In fact the CSECC will merely coordinate and integrate Taipei's negotiation resources in a synergistic manner. This will be highly beneficial to Taipei, When the DPP government negotiated a free trade agreement (FTA) in the past, it established similar institutions. The government erred when it negotiated ECFA. It failed to specify its function and the benefits it would bring. It failed to promptly rebut the opposition DPP's false allegations, It allowed a non-issue to spread and become an issue.

The third and final question concerns the cross-Strait investment protection agreement. Investment insurance agreements reduce the risk of overseas investment. They serve as incentives to increase mutual investment. They are mechanisms that have been adopted by the international community, not just Taipei and Beijing. Beijing has insurance agreements with over one hundred other governments. Taipei has concluded agreements for investment promotion and protection with 26 governments, Among these, Indonesia, the Philippines, Malaysia, Vietnam and India do not have diplomatic relations with Taipei, but would nevertheless like to conclude FTAs. Insurance agreements are not nearly as politically sensitive as FTAs or ECFA. But even cross-Strait negotiations over insurance agreement are beset with difficulties. According to Zheng Lizhong, vice chairman of ARATS, the two sides have yet to reach a consensus on the definition of cross-Strait investment, investment benefits, investment facilitation, expropriation compensation, and dispute settlement. This covers almost all issues of disagreement. This means that not one word has been written on cross-Strait insurance agreements!

Insurance agreements involve a broad range of complex legal issues. Negotiations will consume both time and energy. That is understandable. But in the final analysis, both sides must take a step back so they can see the big picture. Beijing should not be such a stickler over the institutional arrangements. Taipei should open itself up more to Mainland capital. It should adopt a more flexible attitude toward the formal aspects of mainland investment arbitration. Investment on the Mainland has reached record highs. Increasing the amount of protection afforded to Taiwan businessmen and their personal property, will benefit everyone. Businessman abroad have always placed a high priority on harmonious relations. Few are likely to sue the government. In fact, virtually no arbitration cases have arisen among the nations with which Beijing has signed insurance agreements. Even assuming grievances requiring lawsuits arise, Beijing already has a wide range of mediation channels.

As for Taiwan, insurance agreements are merely a means. The end is the promotion of investments. A multitude of restrictions continue to limit Mainland investments on Taiwan. If Mainland capital cannot come to Taiwan, what good is an an agreement providing investment insurance? The five cities elections have drawn to a close. The legislative elections have yet to begin, Now is the time to promote the next wave of Mainland investments, to issue an active expression of goodwill. Allowing Mainland capital to enter will facilitate an investment insurance agreement. But that is hardly its main purpose. Its main purpose is to lay a foundation for even larger scale cross-Strait interaction.

江陳六會留下的習題
【聯合報╱社論】 2010.12.24

第六次江陳會落幕，並順利完成「兩岸醫藥衛生合作協議」的洽簽。但這次會議所挑起的一連串問題與答案，反而比江陳六會的成果還值得關注。

首先是兩會協商機制的功能與定位問題。由於投保協議未及完成與經合會延後宣布成立，引發外界質疑江陳會的成果，也使得兩岸分別對兩會協商的功能與定位，拋出試水溫的言論。海基會江丙坤董事長表示，兩岸未來若無協議可簽，江陳會可不召開；中共國台辦主任王毅則回應，兩會功能不僅是簽協議，仍應保持制度化的協商。確實，回顧兩會協商的歷史，並非都以簽署協議為目的，而且陸委會也把透過江陳會建立的兩岸制度性協商機制，列為重大政策之一。

然而，江丙坤的說法，好像也不是無的放矢。仔細看看兩岸目前完成的十五項協議，幾乎都有建立兩岸主管機關直接聯繫、資訊交換及解決問題的條款。換言之，若兩會事務性協商的定位不調整，兩岸協議簽得愈多，需要藉由兩會這個白手套協商的議題就愈少；但若沒有兩會機制作為緩衝，兩岸間許多隱而未發的政治問題，就須赤裸裸地攤開碰撞，其實並非良策。因此，江陳六會的另一個貢獻，就是彰顯出重新思考兩會協商定位的急迫性。

第二個關注的焦點，是延後宣布成立兩岸經合會。政府對經合會的性質一直沒有說清楚，大家在霧裡看花下以辭害義，頗多誤解。其實，經合會的功能很單純，就是把ＥＣＦＡ談判時，台灣經濟部對大陸商務部的協商平台明文化而已，並未改變現狀下包含立法院審議在內的其他制度，遑論成為反對黨所謂的太上組織。以經合會協調、整合談判資源所發揮的綜效，對台灣特別有利，而且過去民進黨政府時代洽簽的自由貿易協定（ＦＴＡ）中，也有成立類似機構。但是，政府又犯了洽簽ＥＣＦＡ時的錯誤，非但沒有具體說明其功能與利益，更未在第一時間有效導正這些錯謬的指控，使得這個不應是議題的議題擴散蔓延。

最後是兩岸投資保護協議的問題。透過投保協議降低海外投資風險，作為增加相互投資的誘因，是國際乃至於兩岸普遍採行的機制。中國大陸與其他國家的投保協定已經超過一百個，台灣也已締結了廿六個投資促進及保護協定，其中包括印尼、菲律賓、馬來西亞、越南與印度等我國想締結ＦＴＡ的非邦交國，可見投保協議的政治敏感度，遠不如ＦＴＡ或ＥＣＦＡ，但兩岸談起投保協議卻是困難重重。依據大陸海協會副會長鄭立中的說明，兩岸對於投資定義、投資待遇、投資便利、徵收補償、爭端解決等事項，都尚未形成共識。這些幾乎涵蓋了整部協議主要內容的分歧議題，其實代表著兩岸投保協議八字還沒一撇！

投保協議涉及高度法律問題，涵蓋面也很廣，談起來費時費神，可以理解；但追根究柢，其關鍵是兩岸都需要退一步、看大局的胸襟；除了大陸方面不應拘泥於機制安排的形式外，台灣也要有進一步開放陸資的體認與決心。對於大陸對投資仲裁等形式上的憂慮，其實可以更彈性的思維面對；畢竟台商在大陸投資金額屢創新高，提升對台商財產與人身的保護，正是利人利己之事；何況商人在外一向以和為貴，走上告政府一途者恐怕有限。事實上，大陸政府與他國所簽的投保協議中，幾乎沒有發生過仲裁案件。即使真有非告不可的冤屈，大陸當局原本就應利用各種調解協助化解。

至於台灣，畢竟投保協議只是一種手段，其目的在於促進相互投資。在陸資來台限制仍然很高的情形下，大陸投資既無法入場，又何來利用投保協議促進的意義。因此，在五都已選完、立委選舉未到的此刻，正是推動下一波陸資開放、主動釋放善意的時機。當然，開放陸資並非單純為了促成投保協議，而是一種在更大的格局下，創造未來兩岸互動新局的基礎。