Challenge Those Who Challenge the Taiwan Japan Investment Agreement

Challenge Those Who Challenge the Taiwan Japan Investment Agreement
China Times editorial (Taipei, Taiwan, ROC)
A Translation
September 29, 2011

Summary: The Taiwan Japan Investment Agreement has been signed. It must now be sent to the Legislative Yuan. The relevant procedures must be followed, enabling it to take effect. The Legislative Yuan has no reason to reject this ground-breaking agreement between Taipei and Tokyo. Taipei can use this precedent to increase its international economic and trading space. It can use it to attract foreign investment. Who has the heart to belittle this investment agreement between Taipei and Tokyo? Opposition motivated by sheer orneriness. Now that is something we truly do not need!

Full Text below:

On April 22, the Association of East Asian Relations and the Chinese Commerce and Cultural Exchange Association signed a cooperation agreement to protect investments between Taiwan and Japan. This is the first major breakthrough on trade and economic diplomacy since the two sides signed ECFA. It is also the most substantive agreement signed between Taipei and Tokyo since diplomatic relations were severed in 1972. The linkage between this agreement and ECFA is obvious. For the first time the Ministry of Foreign Affairs was responsible for signing the agreement. This shows how much relations between Tokyo and Taipei have improved. The gains were hard-won. An agreement was far from assured. This is a happy milestone for Taipei in the international arena, where it has expanded its foreign relations. It deserves recognition. But domestic political struggles are vicious. Therefore it has become a target for criticism. Can political parties on Taiwan arrive at any sort of consensus? This agreement will be a litmus test. We will soon discover whether a consensus can be reached on this investment agreement between Taipei and Tokyo.

Some critics challenge the use of the English term "arrangement" for "agreement." Why not call it an agreement an agreement, instead of an arrangement? International agreements written in English are common. English is not the mother tongue for either the Republic of China or for Japan. Using English avoids an affront to the dignity of either nation. Using a single language rather than two languages-- Chinese and Japanese -- to sign this important document, avoids problems that arise when the text is changed. The benefits are obvious. In 1972 the first of two protocols were signed. In Chinese it was referred to as an agreement. The current document is consistent with the document signed then, which was referred to as an "arrangement." An international agreement can be referred to as an agreement or an arrangement. There is no difference. The DPP is splitting hairs. It is making much ado about nothing. Does the DPP really believe the Taiwan Japan investment agreement is not an international agreement? Its criticisms are pointless. They are as pointless as questions about why the Association for East Asian Relations and the Chinese Commerce and Cultural Exchange Association signed on behalf of the two parties.

Other critics demand to know why investors are defined on the Japanese side as "natural persons of Japanese nationality," but as "natural persons with Taiwan citizenship" on the Taiwan side. The fact is the agreement refers to the two sides as 台灣 / Taiwan and 日本 / Japan. These can be understood as geographical names. But they also allow the term "Taiwan" to appear. This was the greatest common denominator. Other critics said the name of the nation should have been the Republic of China. But in that case, there would have been no need for such terms as the "Association for East Asian Relations" and the "Chinese Commerce and Cultural Exchange Association." Would critics prefer that the two sides use terminology they consider acceptable, and not sign the agreement at all? Actually, for inhabitants of the global village, "citizen" is a considerably more progressive term than "national." An overweening preoccupation with sovereignty has left some critics mummified. This is one of the reasons Taiwan continues to spin its wheels and to go nowhere. Critics should listen to criticisms of their own criticisms. Are they binding Taiwan hand and foot? Are they making non-negotiable demands?

Others claim this agreement has little connection with ECFA, that it will not necessarily persuade Japanese capital to enter Taiwan as a prelude to venturing into the Chinese mainland. They say Tokyo and Beijing signed a similar agreement earlier. But for Japanese businessmen who entered the Chinese mainland directly but lost money, joint ventures with businessmen on Taiwan as a prelude to entering the Chinese mainland are an attractive option. The Taiwan Japan Investment Agreement addresses Japanese concerns about the lack of legal protections on Taiwan. Are critics saying that Taipei and Tokyo should even not bother signing an investment agreement? Does that make any sense? Taipei and Tokyo have signed a bilateral investment agreement. The next step is to negotiate and sign a bilateral trade agreement. Suppose the two sides had not signed ECFA earlier? Would Tokyo have begun consultations with Taipei during the second half of last year? Would it have signed the Taiwan Japan Investment Agreement? Whenever the DPP is out of office, no political or diplomatic success is ever deemed a success. This is probably the most regrettable aspect of DPP criticism. Given the DPP's attitude, Taiwan is unlikely to ever achieve consensus.

As international investment protection agreements go, the Taiwan Japan investment agreement is considered a rare masterpiece. It covers norms local governments ought to follow when placing levies on foreign governments, including direct and indirect levies. It covers the prompt collection of compensation, adequate and effective compensation, and the fair market value of compensation. It covers International Chamber of Commerce arbitration and ad hoc arbitration, in accordance with United Nations rules or other agreed upon cross-border arbitration. It is simultaneously idealistic and pragmatic. It is no exaggeration to describe it as exemplary.

The Taiwan Japan Investment Agreement has been signed. It must now be sent to the Legislative Yuan. The relevant procedures must be followed, enabling it to take effect. The Legislative Yuan has no reason to reject this ground-breaking agreement between Taipei and Tokyo. Taipei can use this precedent to increase its international economic and trading space. It can use it to attract foreign investment. Who has the heart to belittle this investment agreement between Taipei and Tokyo? Opposition motivated by sheer orneriness. Now that is something we truly do not need!

質疑台日投資協議 心態可議
2011-09-29 中國時報

亞東關係協會與交流協會於本月廿二日簽署了台日投資保護合作協議。這是兩岸簽署ＥＣＦＡ之後，第一個經貿外交上的重要突破，也是台日自一九七二年因斷交而簽署兩會協議之後，最有分量的協議。這分協議與ＥＣＦＡ間之連鎖關係十分明顯，日方首次由外務省負責主導簽署此項協議，也顯示出日台實質關係親密與改善的程度。對於這來之不易、事前也難以期待的協議，原應視做台灣在國際舞台上拓展對外關係一項令人高興的里程碑，值得肯定，卻因為國內政治鬥爭環境險惡，出現了若干批評。如果台灣內部要形成任何共識，不妨就用這分協議做個觀察，台灣共識的追求者，會認為台灣可以對台日投資協議形成什麼樣的共識！

一項批評是質疑此項以英文簽訂的協議使用arrangement的名稱，而且認為何不稱「協定」而要稱為「協議」。國際書面協議使用英文，本極常見，英語並非台日任何一方的母語，即不發生任何一方尊嚴受損的問題，用一種語言而非兩種語言（中文與日文）簽署此項重要文件，可以避免文字改簽所產生的問題，好處也顯而易見。一九七二年兩會簽署的首分協議，中文即稱為「協議」；此次簽署的文件第一條即將當年的協議稱為arrangement，維持了一致性。國際協議稱做「協議」或「協定」，本無不同，雞蛋裡挑骨頭，只是庸人自擾。如果懷疑台日投資協議不是國際協議，猶如質疑為什麼要由亞東關係協會與交流協會代表雙方出面簽署，一樣地無聊。

另一項批評，則是質疑為何「投資人」的定義日方寫的是「擁有日本國籍之自然人」，台方則稱「具台灣公民身分之自然人」？其實此項協議稱呼雙方為「台灣（Taiwan）」及「日本（Japan）」，做為地理名稱加以理解，又看見了台灣的名稱，不但是最大的公約數，本來也是值得高興的事。批評者如果認為該稱中華民國的國名，那還用得著亞東關係協會與交流協會嗎？難道認為雙方各使用自己較能接受的字眼不如不簽嗎？其實從身為地球村的一分子而言，「公民」可是遠比「國民」進步的字眼。過度陷在主權的泥淖中故步自封，甚而不可自拔，正是台灣不斷內耗自傷的主因之一。批評者值得思考所提出的類似批評，是否正在傷害台灣自己的能動性，是否也是強人所難的要求？

還有的說法，則是此項協議與ＥＣＦＡ的關係不大，也未必有助於引日資進入台灣以為再圖西進的策略。日方與中方已簽有相關協議在先，對於直接進入中國市場投資失利的日商而言，先在台灣與台商合作再共同進入中國市場，的確是一個誘人的選項。台日投資協議，恰可彌補日商進入台灣法律保障不足的顧慮。批評者的說法倒像是在說台日投資協議不如不簽了？有任何道理嗎？台日簽了雙邊投資協議的下一步，就該是協商簽訂雙邊貿易協定了。試問，如果不是兩岸已有ＥＣＦＡ在先，日本會從去年下半年開始與我方協商簽署台日投資協議嗎？不是由我主政，一切的政治外交成就都不是成就的心態，恐怕最要不得。這樣的心態始終存在，台灣恐怕永遠成不了任何共識。

從國際投資保障協議的理想模式看，台日協議稱得上是一分難得的佳作。它涵蓋了在地政府對於外資的徵收應該遵守的規範，及於直接徵收與間接徵收，徵收賠償應該符合即時、適當與有效的補償，而且以徵收時的公平市場價值為準，也納入了國際商會仲裁、依聯合國規則進行專案仲裁，或是其他雙方同意的跨國仲裁，務實卻符合理想性，稱為一項典範性的協議，亦不為過。

台日投資協議簽署之後，應該要送到立法院，完成相關的程序後，才會生效。我們肯定台日這份突破性的協議，也認為立法院沒有不予接受的理由。如果希望台灣能夠用這一個例子開啟後續的國際經貿活動更為廣闊的空間，也做為吸引外資進入台灣投資的張本，誰又忍心對於台日投資協議妄自菲薄？為了反對而反對的批評，真的不需要！