Cross-Strait Insurance Agreement: Mutual Trust and Mutual Reliance

Cross-Strait Insurance Agreement: Mutual Trust and Mutual Reliance
China Times editorial (Taipei, Taiwan, ROC)
A Translation
October 5, 2011

Summary: The SEF recently announced that the 7th Chiang-Chen meeting will be held during the second half of this month. The most important goal is to sign a Cross-Strait Insurance Agreement. But Minister of Economic Affairs Shih Yen-hsiang said three disputes still stand in the way of an accord. They pertain to matters of personal safety, dispute settlement, and investment controls. Progress is being made, but our side is still not satisfied.

Full Text Below:

The SEF recently announced that the 7th Chiang-Chen meeting will be held during the second half of this month. The most important goal is to sign a Cross-Strait Insurance Agreement. But Minister of Economic Affairs Shih Yen-hsiang said three disputes still stand in the way of an accord. They pertain to matters of personal safety, dispute settlement, and investment controls. Progress is being made, but our side is still not satisfied.

The Cross-Strait Insurance Agreement affects many vital investments by Taiwan businessmen on the Chinese mainland. The two sides began negotiations last June, before the Cross-Strait Economic Cooperation Framework Agreement (ECFA) was signed. It was originally supposed to be signed in December, during the 6th Chiang-Chen meeting. But crucial disagreements prevented the two sides from reaching an accord. Now the two sides have announced that a partial agreement has been reached. The 7th Chiang-Chen meeting has long been viewed as a replay. Originally no consensus was reached on matters of personal safety and dispute settlement mechanisms. But efforts by both sides have resolved most major differences. So far the two sides still lack the determination to push the insurance agreement through, Will the 7th Chiang-Chen meeting enable its smooth passage? Many doubts remain.

The insurance agreement was originally one of ECFA's four major investment agreements. But the two sides agreed to give priority to insurance agreement negotiations. This was mainly in response to the demands of Taiwan businessmen over the years. In recent years the investment environment on the Chinese mainland has changed. Taiwan businessmen have encountered many problems, especially concerning personal safety and investment disputes. The Chinese mainland has a "Taiwan Investment Protection Act." It is the law that protects Taiwan businessmen. But when public safety agencies, public authorities, and government departments violate the rights of Taiwan businessmen, the law is inadequate. Taiwan businessmen hope the two sides will sign an insurance agreement. They want the Taiwan authorities to back them up They want them to protect the rights of Taiwan businessmen.

Our government has signed insurance agreements with nearly 30 nations. The Chinese mainland has signed insurance agreements with over 120 nations. A quick examination shows that the contents of these agreements are largely similar. They include definitions of investments and investors, the treatment of investments (treatment of citizens and MFN), freedom of movement for capital, compensation, collection and compensation, subrogation, dispute settlement, and information transparency. But Taiwan and the Chinese mainland have a special relationship. Cross-Strait insurance arrangements and international insurance agreements are not the same thing. This has led to a number of problems that require mutual consultation.

Taiwan businessmen are concerned about their personal safety. Such concerns are not usually part of international insurance agreements. But strong demand from the Taiwan side have made them part of the Cross-Strait Insurance Agreement. But jurisdiction over personal safety is a sensitive issue, After much wrangling, the personal safety of Taiwan businessmen was included in the agreement, with certain time limits. Victims must notify their families and the competent authorities within 24 hours. According to Chinese mainland law, when foreign, Taiwan, Hong Kong, and Macao businessmen are detained or held, family members and the competent authorities must be notified within 2 to 7 days. The insurance agreement requires 24 hour notice. According to Taiwan Affairs Office Director Wang Yi, this "breaks out of the existing framework" and affords Taiwan businessmen better treatment than the public on the Mainland, But according to reports, the Ministry of Economic Affairs says the 24-hour notice requirement will not be included in the text of the agreement. Instead, it will publish a press release. This shows that the authorities on the Chinese mainland are still reluctant to afford our people the same treatment it affords PRC citizens. If the clause is not included in the text of the agreement, it will inevitably be criticized as demeaning to Taiwan, and lead to internal disputes.

Now let us examine trade dispute settlement mechanisms. Person to person (P2P) disputes will be handled according to commercial arbitration mechanisms. Commercial contracts shall prevail. The key is how to solve disputes between local Taiwan and local mainland governments. This is the person to government (P2G) part. Our side wants international arbitration. The recent Taiwan-Japan investment agreement stipulated that disputes involving individuals and the government would be submitted to the International Chamber of Commerce, Abitration would be conducted according to an arbitral tribunal organized according to the Arbitration Rules of the United Nations or an arbitration institution agreed to by the two sides.

But International Arbitration touches Beijing's most sensitive political nerve. The Chinese mainland is unlikely to agree, According to reports, the two sides have reached a compromise. They are leaning toward "mediation" instead of "arbitration." But will "mediation" have legal teeth? That is a big question, and shows how complex the problem is.

Now consider "treatment as citizens" and "most favored nation treatment." Originally World Trade Organization (WTO) rules were to apply, But the treatment our side afforded Mainland Chinese businesses was far below WTO requirements. The Chinese mainland understands and is willing to make accomodations. This is clearly an internal matter. This principle was included in the text of the agreement. Our government has probably misinterpreted it. Its hesitancy is not surprising.

Cross-Strait issues are special and complex. But a concerted effort by both sides led to the signing of 15 agreements, including the highly complex ECFA, whose purpose was to establish a free trade area. Mutual trust and mutual understanding achieved a major breakthrough. The two sides must cherish these hard-won achievements. Mutual trust and mutual understanding should enable the two sides to compromise and reach an agreement on the insurance agreement, Can the insurance agreement be signed at the 7th Chiang-Chen meeting? The key to the problem is one's basic attitude. If the insurance agreement is not signed, the 7th Chiang-Chen meeting will not have much meaning.

中時電子報 新聞
中國時報 　2011.10.05
社評－互信互賴完成兩岸投保協議的簽署
本報訊

日前海基會表示，第七次江陳會最快在本月中、下旬召開，簽署兩岸投保協議是最主要目標，不過，經濟部長施顏祥透露，投保協議還有3項爭議，包括人身安全、爭端解決及投資管制，目前協商雖有進展，但尚未達到我方的期望。

兩岸投保協議攸關眾多大陸台商投資權益的保障，早在去年6月《兩岸經濟合作架構協議》（ECFA）完成簽署之前，雙方即已展開協商，原訂在去年12月第六次江陳會進行簽署，但因若干癥結問題未能達成協議，僅由雙方公布階段性協商成果。今年第七次江陳會早已將簽署投保協議列為重頭戲，原先未有共識的人身安全、爭端解決機制等，經雙方努力，主要歧見多已獲致解決之道。但迄今為止，投保協議似仍缺少臨門一腳的關鍵決心，能否在第七次江陳會順利簽署，變數仍多。

兩岸投保協議原是ECFA四大協議中投資協議的一部分，但雙方同意優先進行投保協議的商談，主要是回應大陸台商多年來的訴求與期待。近年大陸投資環境丕變，眾多台商遭遇形形色色的問題，其中尤以人身安全保障及投資糾紛最受台商關切。雖然大陸已訂有《台商投資保護法》作為保護台商的法律依據，然而，遇到侵害台商權益者涉及到公安機關或政府部門執行公權力時，大陸法律已不足以保護台商，因而讓台商寄希望於兩岸簽署投保協議，以台灣政府的力量作為後盾，提升保護台商權益的可靠度。

我國和近30個國家已簽署投保協定，大陸也與120多個國家簽署投保協定，檢視其內容皆大同小異，包括：投資及投資人定義、投資待遇（國民待遇及最惠國待遇等）、資金自由移動、損失補償、徵收與補償、代位求償、爭端解決及資訊透明化等。然而，因為台灣和大陸關係特殊，兩岸投保協議的範圍與安排，和國際投保協定很難完全比照，因而也衍生若干雙方協商的複雜問題。

如台商關心的人身安全保障問題，非屬一般國際投保協定的範疇，因為台商的強烈訴求，才納入兩岸投保協議。但是，人身安全涉及管轄權敏感問題，經過折衝，最後只納入台商人身安全受限制時，需在24小時內通知家屬及單位。依據大陸法律現行規定，外商和台、港、澳商涉法遭拘留和羈押時，需在2至7天內通知家屬及單位；投保協議爭取到24小時通知時限，是比照大陸人民的待遇，國台辦主任王毅指此已「突破框架」，但據報導，經濟部指24小時通知時限將不列入協議文本，而是以新聞稿方式發布，顯示大陸方面對此仍有顧忌。而我方爭取到比照大陸人民的「國民待遇」，如果又不列入協議文本，難免被批評遭到矮化，引發內部爭議。

在經貿糾紛解決機制方面，個人和個人（P2P）糾紛可沿用商務仲裁機制，以商業合約為準。最關鍵的是如何解決眾多台商和大陸地方政府間的紛爭，也就是個人和政府（P2G）部分。我方希望援引國際仲裁制度，最近台日投資協議明訂涉及個人和政府的爭端可交付國際商會、依聯合國仲裁規則組成的仲裁庭或兩造同意的仲裁機構進行仲裁，就是最好的範例。

但是，國際仲裁已觸及北京最敏感的政治神經，大陸方面自難同意，據報導，經雙方妥協，傾向以「調解」取代「仲裁」，但「調解」結果是否有強制力，又是很大問題，可見其複雜度。

至於投資的「國民待遇」及「最惠國待遇」，原本就是世貿組織（WTO）的基本規則，但我方迄今給予大陸企業的待遇遠低於WTO要求，大陸方面雖能理解並配合，但顯然為對內交代，故要求將此原則納入協議文本。我政府則惟恐遭到錯誤解讀，猶豫不決自在意料之中。

我們必須指出，兩岸問題至為特殊且複雜，但經雙方共同努力，已簽署15項協議，包括以建立自由貿易區為目標、複雜度極高的ECFA，這是出於雙方互信互諒才能達到的重大突破。是以，兩岸應珍惜得之不易的成果，以相互信賴及諒解的態度，來處理投保協議問題，則不難找出折衷之道。第七次江陳會能否簽署投保協議，關鍵在於處理問題的基本態度；如果不簽，召開第七次江陳會也就沒有太大的意義。。