http://www.wantchinatimes.com/news-subclass-cnt.aspx?cid=1701&MainCatID=17&id=20110208000086
這是有關領域管轄和引渡問題的傳統國際法議題，許老師本週六在台大校總區的霖澤館（法學院）有一場座談，同學可以去聽聽看喲！
The jurisdiction dispute that arose after the Philippines deported 14 Taiwanese nationals suspected of fraud to China for crimes against Chinese nationals indicates Taiwan's challenges in maintaining ties with Southeast Asian countries, despite improved cross-strait relations.
Taiwan's relations, especially in trade with Southeast Asia, regressed after the Democratic Progressive Party came to power in 2000 due to increased tensions with China.
As Taiwan's relations with China have a great influence on the island's trade with Southeast Asia, which improved after the cross-strait economic cooperation framework agreement was signed in 2010, Taiwan cannot afford to see relations worsen as its economic strength could again be undermined.
Taiwan's Ministry of Foreign Affairs (MOFA) should be held responsible for its slow reaction to the current dispute since it did not have first-hand information about the arrests involving the Taiwanese nationals last December.
While Taiwan has to protest against the Philippines bowing down to China's demands to hand over the Taiwanese suspects, the MOFA should work on building closer ties with Southeastern Asian countries, particularly in trade, education and culture, even though Taiwan and China have ceased the fight for diplomatic allies.
Chinese pressure to extradite the Taiwanese suspects is understandable, since Taiwan had ruled in a similar previous case that the defendants were innocent, which meant the Chinese victims are unable to seek compensation. Fraud is a felony that carries a sentence of 10 years to life imprisonment in China, while the maximum jail term for the same crime is five years in Taiwan.
However, since Taiwan and China have different human rights standards, the location of the trial has a significant impact on the rights of the accused Taiwanese nationals.
Taiwan should make it clear to China that the island is toughening its stand against crime with heavier sentences in order to prevent similar disputes in the future, especially since both sides signed a judicial cooperation agreement in 2009.
Taiwan should also be credited for its restrained official reaction to the matter, focusing only on the return of the Taiwanese suspects. It would increase trust between the two sides if China hands back the Taiwanese nationals to stand trial in Taiwan after it completes its own investigation.
(issued by TA wei-en)
2011年2月25日 星期五
Warning: old stone temples can start wars
甫里維哈寺位於泰國與柬埔寨之間邊界山脈中一塊高地（Dangrek）上，根據1904年暹羅（泰國舊稱）和法國（當時柬埔寨是法國的保護地）之間的一項條約規定，雙方同意有關此山脈邊界線之劃定，應沿著分水嶺線為之。兩國為此另設立了一個混合委員會，礙於技術因素，當時泰國政府委託由法國調查隊來負責繪製該地區地圖的工作。1908年地圖繪製完成，當時泰國政府收到此地圖時即已發現古寺被標註在柬埔寨的領域內（即山脈分水嶺的另一邊），但卻未表明任何異議（直到1935年）。1953年柬埔寨獨立之後，新政府試圖在該地區確立其領土主權，但因泰國派駐軍隊於古寺，效果有限。1959年10月，柬埔寨向國際法院提起訴訟，請求法院宣告古寺的領土主權屬於柬埔寨，泰國應將其駐紮於古寺的武裝部隊撤離。法院先於1961年確立對本案的管轄權，接著在1962年對本案進行實質審理與裁決，判定古寺是屬於柬埔寨。(issued by TA wei-en)
Thai-Cambodian conflictFeb 10th 2011
KANTHARALAK
SITTING on her straw mat, Pisamai Poonsuk recalls how her family of ten fled their border village in a pickup truck soon after the shells began falling. After staying the night with relatives, the family moved into a temporary camp. Ms Pisamai, a cassava farmer, is waiting for the all-clear to go home. She prays the ceasefire will hold between the Thai and Cambodian soldiers ranged along a disputed border. She has little time for Thai jingoism. “We should trade with the Cambodians. We should be brothers.”
Fat chance. The clashes that erupted on February 4th were the fiercest since July 2008, when the two armies first began rumbling at each other in the vicinity of Preah Vihear, an 11th-century Khmer temple that Cambodia wants to develop for mass tourism. Six people died and dozens more were injured during four days of fighting. The temple itself was only slightly damaged. Each side accuses the other of firing first into populated areas.
Though the shelling has stopped, any ceasefire remains fragile as long as nationalists in both countries keep stoking the dispute. Thailand’s prime minister, Abhisit Vejjajiva, faces street protests by the ultra-conservative People’s Alliance for Democracy (PAD) over his alleged failure to defend Thai soil. Cambodia’s prime minister, Hun Sen, does not tolerate protests but is sensitive to claims of lost sovereignty. He quickly castigated war-mongering Thailand and called for UN peacekeepers on the border.
It is not the first time that an ancient temple has bred violence. In 2003 anti-Thai riots erupted in Phnom Penh after a Thai actress was misquoted as saying that Angkor Wat, which appears on the Cambodian flag, belonged to Thailand. On February 8th PAD leaders said that Thai troops should threaten to invade, forcing a return of Preah Vihear. To Cambodians, resentful of being pushed around by big neighbours, this is bully-boy stuff.
In 1962 the World Court ruled that Preah Vihear, which sits on a ridge, was on Cambodian soil. But it did not rule on overlapping claims to the temple’s hinterland. In 2008 UNESCO listed the temple as a World Heritage site, to the delight of Cambodia’s tourist industry. The PAD cried foul over what it claimed was a loss of Thai territory. The controversy became a pretext for marathon protests that helped topple an elected government and sweep Mr Abhisit into power. Now the PAD vows to topple its erstwhile ally.
Despite international concern, Mr Hun Sen’s plea for UN intervention seems a non-starter. Thailand insists that bilateral talks can resolve the border dispute and rejects outside mediation. This did not stop Indonesia from dipping a toe into the row. It currently holds the rotating chair of the Association of South-East Asian Nations (ASEAN), to which the two feuding parties belong (see Banyan). Its foreign minister, Marty Natalegawa, flew to both capitals this week for talks. But, an ASEAN diplomat sniffs, Indonesia should keep its own ambitions in check, lest the tables are turned in future. Nobody wants anyone “meddling in his own affairs”, he says. So much for Ms Pisamai’s brotherhood.
Thai-Cambodian conflictFeb 10th 2011
KANTHARALAK
SITTING on her straw mat, Pisamai Poonsuk recalls how her family of ten fled their border village in a pickup truck soon after the shells began falling. After staying the night with relatives, the family moved into a temporary camp. Ms Pisamai, a cassava farmer, is waiting for the all-clear to go home. She prays the ceasefire will hold between the Thai and Cambodian soldiers ranged along a disputed border. She has little time for Thai jingoism. “We should trade with the Cambodians. We should be brothers.”
Fat chance. The clashes that erupted on February 4th were the fiercest since July 2008, when the two armies first began rumbling at each other in the vicinity of Preah Vihear, an 11th-century Khmer temple that Cambodia wants to develop for mass tourism. Six people died and dozens more were injured during four days of fighting. The temple itself was only slightly damaged. Each side accuses the other of firing first into populated areas.
Though the shelling has stopped, any ceasefire remains fragile as long as nationalists in both countries keep stoking the dispute. Thailand’s prime minister, Abhisit Vejjajiva, faces street protests by the ultra-conservative People’s Alliance for Democracy (PAD) over his alleged failure to defend Thai soil. Cambodia’s prime minister, Hun Sen, does not tolerate protests but is sensitive to claims of lost sovereignty. He quickly castigated war-mongering Thailand and called for UN peacekeepers on the border.
It is not the first time that an ancient temple has bred violence. In 2003 anti-Thai riots erupted in Phnom Penh after a Thai actress was misquoted as saying that Angkor Wat, which appears on the Cambodian flag, belonged to Thailand. On February 8th PAD leaders said that Thai troops should threaten to invade, forcing a return of Preah Vihear. To Cambodians, resentful of being pushed around by big neighbours, this is bully-boy stuff.
In 1962 the World Court ruled that Preah Vihear, which sits on a ridge, was on Cambodian soil. But it did not rule on overlapping claims to the temple’s hinterland. In 2008 UNESCO listed the temple as a World Heritage site, to the delight of Cambodia’s tourist industry. The PAD cried foul over what it claimed was a loss of Thai territory. The controversy became a pretext for marathon protests that helped topple an elected government and sweep Mr Abhisit into power. Now the PAD vows to topple its erstwhile ally.
Despite international concern, Mr Hun Sen’s plea for UN intervention seems a non-starter. Thailand insists that bilateral talks can resolve the border dispute and rejects outside mediation. This did not stop Indonesia from dipping a toe into the row. It currently holds the rotating chair of the Association of South-East Asian Nations (ASEAN), to which the two feuding parties belong (see Banyan). Its foreign minister, Marty Natalegawa, flew to both capitals this week for talks. But, an ASEAN diplomat sniffs, Indonesia should keep its own ambitions in check, lest the tables are turned in future. Nobody wants anyone “meddling in his own affairs”, he says. So much for Ms Pisamai’s brotherhood.
A sea of disputes
這是有關國家間爭端領土的問題，剛好與老師下週開始要談的國家領域有關。台灣也是這起爭端中的一造，值得大家關注。(issued by TA wei-en)
Feb 21st 2011, 8:44 by Banyan
TWO truths about the disputes in the South China Sea are well-recognised: they are extremely complex, and much misunderstood. An illuminating day-long conference at the Institute of South-East Asian Studies in Singapore on February 18th brought home a third. There is no realistic prospect of a settlement in the foreseeable future. The best that can be hoped is to manage the disputes without any resort to armed conflict.
Part of the difficulty is that the dispute has so many aspects—or rather there are so many separate disputes. The territorial issue that receives so much attention is itself a plethora of different and overlapping claims. China and Vietnam claim sovereignty over the Paracel island chain, from which China evicted Vietnam in 1974, in the dying days of the Vietnam war. Taiwan—because it is the “Republic of China”—mirrors China’s claim, so that huge unresolved dispute also has a bearing on this one. The same three parties also claim the Spratly archipelago, to the south. But in the south, Malaysia, the Philippines and Brunei also have partial claims.
Some of these arguments might in theory be soluble under the United Nations Convention of the Law of the Sea (UNCLOS), established in 1982. Some of the parties have tried to align their claim with UNCLOS. In 2009, for example, Malaysia and Vietnam made a joint submission, showing where they thought their claims lay, based on their continental shelves. This implied that the Spratlys—a collection of reefs, rocks and tiny islands—were all too small to support human habitation and hence have their own exclusive economic zones (EEZs) under UNCLOS.
China, however, objected to that submission and tabled its own map, with nine dotted lines outlining its claim. Joined up, the dotted lines give it not just the two chains, but almost the whole sea. There seems to be no basis for this in UNCLOS. But China points to history. It says the map has been in use since the Republic of China published it in 1946, and, until quite recently, nobody minded. Indonesia, in turn, subsequently objected to China’s objection, which gave China a claim over some Indonesian waters, too. According to American officials, China has upped the ante by talking of its territorial claims in the South China Sea as a “core” national interest, on a par with Tibet and Taiwan.
There is a huge amount at stake. Besides fisheries, the sea, particularly around the Spratlys, is believed to be enormously rich in hydrocarbons. The lure of such riches ought to make it attractive to devise joint-development mechanisms so that all could benefit. In practice, the resources potentially available make it even harder for any country to moderate its claim.
The sea is also a vital shipping route, accounting for a big chunk of world trade. It is the importance of the freedom of navigation and of overflight that has given America its pretext for louder involvement. This was initially welcomed by the members of the Association of South-East Asian Nations when voiced at a regional forum in Hanoi in July last year, So fiercely did China object to America’s rather disingenuous offer of “mediation”, however, that some countries may now be ruing it.
So a second related dispute is between two regional superpowers: China and America. In particular, America and China differ over whether military activities are permissible in another country's EEZ. America insists they are. China objects to them and has on occasion harassed America’s spy planes and survey ships.
A third dispute is between China and ASEAN. These two reached a common “Declaration on Conduct” (DoC) in 2002 in an attempt to minimise the risk of conflict. But efforts to turn it into a formal and binding code have got nowhere, partly because of China’s anger at ASEAN’s attempts to develop a common approach.
China argues that ASEAN has no role in territorial issues, and insists on negotiating with the other claimants bilaterally. ASEAN sees this as an effort to pick off its members one by one. It argues that its own charter forces members to consult, as they do before each working group on the code of conduct (the next one is due in March).
Optimists point out that, distant though any settlement seems to be, at least the DoC has helped keep tensions down. Indeed, since 1988, when China and Vietnam clashed near the Spratlys, there have been no serious armed flare-ups. Tension rose in 1995, when China was found to have built on Mischief Reef, claimed by the Philippines. Fishermen are sometimes locked up for encroaching in another country’s claim. But the risk of escalation into conflict has seemed limited.
It is even possible to claim that the “self-restraint” the DoC calls for is being observed, since no new uninhabited islands or rocks have been occupied. However, that may be because none of those that is left is remotely big enough, and on those that were already occupied, building has continued, in some cases as if the claimants hope to turn rocks, or even “low-tide elevations”, into real islands—a practice not recognised under UNCLOS.
In their complexity, the South China Sea disputes provide material for endless scholarly bickering. Now that America has made it a focus for its re-engagement in Asia’s seas as a superpower and guarantor of the peace, and China has made clear it resents this, they also present some serious risks.
Feb 21st 2011, 8:44 by Banyan
TWO truths about the disputes in the South China Sea are well-recognised: they are extremely complex, and much misunderstood. An illuminating day-long conference at the Institute of South-East Asian Studies in Singapore on February 18th brought home a third. There is no realistic prospect of a settlement in the foreseeable future. The best that can be hoped is to manage the disputes without any resort to armed conflict.
Part of the difficulty is that the dispute has so many aspects—or rather there are so many separate disputes. The territorial issue that receives so much attention is itself a plethora of different and overlapping claims. China and Vietnam claim sovereignty over the Paracel island chain, from which China evicted Vietnam in 1974, in the dying days of the Vietnam war. Taiwan—because it is the “Republic of China”—mirrors China’s claim, so that huge unresolved dispute also has a bearing on this one. The same three parties also claim the Spratly archipelago, to the south. But in the south, Malaysia, the Philippines and Brunei also have partial claims.
Some of these arguments might in theory be soluble under the United Nations Convention of the Law of the Sea (UNCLOS), established in 1982. Some of the parties have tried to align their claim with UNCLOS. In 2009, for example, Malaysia and Vietnam made a joint submission, showing where they thought their claims lay, based on their continental shelves. This implied that the Spratlys—a collection of reefs, rocks and tiny islands—were all too small to support human habitation and hence have their own exclusive economic zones (EEZs) under UNCLOS.
China, however, objected to that submission and tabled its own map, with nine dotted lines outlining its claim. Joined up, the dotted lines give it not just the two chains, but almost the whole sea. There seems to be no basis for this in UNCLOS. But China points to history. It says the map has been in use since the Republic of China published it in 1946, and, until quite recently, nobody minded. Indonesia, in turn, subsequently objected to China’s objection, which gave China a claim over some Indonesian waters, too. According to American officials, China has upped the ante by talking of its territorial claims in the South China Sea as a “core” national interest, on a par with Tibet and Taiwan.
There is a huge amount at stake. Besides fisheries, the sea, particularly around the Spratlys, is believed to be enormously rich in hydrocarbons. The lure of such riches ought to make it attractive to devise joint-development mechanisms so that all could benefit. In practice, the resources potentially available make it even harder for any country to moderate its claim.
The sea is also a vital shipping route, accounting for a big chunk of world trade. It is the importance of the freedom of navigation and of overflight that has given America its pretext for louder involvement. This was initially welcomed by the members of the Association of South-East Asian Nations when voiced at a regional forum in Hanoi in July last year, So fiercely did China object to America’s rather disingenuous offer of “mediation”, however, that some countries may now be ruing it.
So a second related dispute is between two regional superpowers: China and America. In particular, America and China differ over whether military activities are permissible in another country's EEZ. America insists they are. China objects to them and has on occasion harassed America’s spy planes and survey ships.
A third dispute is between China and ASEAN. These two reached a common “Declaration on Conduct” (DoC) in 2002 in an attempt to minimise the risk of conflict. But efforts to turn it into a formal and binding code have got nowhere, partly because of China’s anger at ASEAN’s attempts to develop a common approach.
China argues that ASEAN has no role in territorial issues, and insists on negotiating with the other claimants bilaterally. ASEAN sees this as an effort to pick off its members one by one. It argues that its own charter forces members to consult, as they do before each working group on the code of conduct (the next one is due in March).
Optimists point out that, distant though any settlement seems to be, at least the DoC has helped keep tensions down. Indeed, since 1988, when China and Vietnam clashed near the Spratlys, there have been no serious armed flare-ups. Tension rose in 1995, when China was found to have built on Mischief Reef, claimed by the Philippines. Fishermen are sometimes locked up for encroaching in another country’s claim. But the risk of escalation into conflict has seemed limited.
It is even possible to claim that the “self-restraint” the DoC calls for is being observed, since no new uninhabited islands or rocks have been occupied. However, that may be because none of those that is left is remotely big enough, and on those that were already occupied, building has continued, in some cases as if the claimants hope to turn rocks, or even “low-tide elevations”, into real islands—a practice not recognised under UNCLOS.
In their complexity, the South China Sea disputes provide material for endless scholarly bickering. Now that America has made it a focus for its re-engagement in Asia’s seas as a superpower and guarantor of the peace, and China has made clear it resents this, they also present some serious risks.
2010年12月14日 星期二
國際刑事法院相關案件時事
Posted 22 hours ago Sunday, December 12th, 2010 at 11:55 am UTC
The Zambian government has announced it will not arrest Sudanese President Omar Al-Bashir if he attends a regional summit there next week.
A government spokesman says Zambia will abide by the African Union's decision to ignore an International Criminal Court arrest warrant against Mr. Bashir on charges of war crimes and crimes against humanity. The AU says the Sudanese president has not been convicted of any crimes and therefore should not be detained.
Zambia is a member state of the International Criminal Court and under its rules is obliged to arrest Mr. Bashir if he is in the country.
Mr. Bashir has not said publicly if he will attend next week's summit.
The Sudanese leader has already traveled to other ICC member states including Chad and Uganda and was not arrested
But, Mr. Bashir's expected presence at a meeting in Kenya recently attracted so much controversy the event was moved to Ethiopia.
(本篇由勇銘助教代偉恩助教張貼)
The Zambian government has announced it will not arrest Sudanese President Omar Al-Bashir if he attends a regional summit there next week.
A government spokesman says Zambia will abide by the African Union's decision to ignore an International Criminal Court arrest warrant against Mr. Bashir on charges of war crimes and crimes against humanity. The AU says the Sudanese president has not been convicted of any crimes and therefore should not be detained.
Zambia is a member state of the International Criminal Court and under its rules is obliged to arrest Mr. Bashir if he is in the country.
Mr. Bashir has not said publicly if he will attend next week's summit.
The Sudanese leader has already traveled to other ICC member states including Chad and Uganda and was not arrested
But, Mr. Bashir's expected presence at a meeting in Kenya recently attracted so much controversy the event was moved to Ethiopia.
(本篇由勇銘助教代偉恩助教張貼)
2010年12月8日 星期三
名古屋議定書條文爭議之初探
http://www.tradelaw.nccu.edu.tw/epaper_html/經貿法訊電子報第108期.htm
第10屆生物多樣性公約締約國大會（The tenth meeting of the Conference of the Parties to the Convention on Biological ，CBD-COP10）於10月18日至10月30日於名古屋舉辦 ，經過多方談判及協商，最終達成了三個目標 ；其中，名古屋議定書（Nagoya Protocol）之簽訂更為本次大會最重要之里程碑...(詳全文)
第10屆生物多樣性公約締約國大會（The tenth meeting of the Conference of the Parties to the Convention on Biological ，CBD-COP10）於10月18日至10月30日於名古屋舉辦 ，經過多方談判及協商，最終達成了三個目標 ；其中，名古屋議定書（Nagoya Protocol）之簽訂更為本次大會最重要之里程碑...(詳全文)
2010年12月3日 星期五
經長:6次江陳會簽投保難度高
旺報 2010/12/3
【記者陳秀蘭／台北報導】
經濟部長施顏祥昨日在答覆立委的質詢時指出，兩岸投保協定目前還在協商中，要在本月中召開的第6次江陳會完成簽署「困難度很高」，儘管會列入協商議程，但「不一定會簽」。
兩岸預定在本月16日至18日召開的第6次江陳會中簽署兩岸投資保障協議，但施顏祥昨天的說法，也為兩岸投保協議能否順利簽署，投下變數！
施顏祥說，如果在本月中下旬召開，時間太緊迫，達成協議困難度高。陸委會副主委高長說，6次江陳會時間還未確定，16日至18日是我方主觀意願。
另外，面對外界關切兩岸投保協議的是否引進國際仲裁機制，施顏祥也首度表示，由於兩岸投保協定是兩岸ECFA文本規範的4項後續展開的協議之一，依據ECFA文本，最後很可能回到調解ECFA糾紛爭議的兩岸經合會的架構機制。此說法也等於間接透露兩岸投資保障協議，我方將放棄指定國際仲裁機制擔任仲裁單位。
施顏祥、高長昨天赴立法院經濟委員會，就「推動兩岸洽簽投保協議情形」進行專案報告。會中，對立委逼問即將在本月16日至18日舉行第六次江陳會簽署兩岸投保協議內容。施顏祥作了上述表示。
人身安全未達共識
高長在報告時指出，兩岸投資保障協議的內容將參考國際上雙邊投資協定案例、並考量兩岸的特殊性，就投資人定義、投資待遇、匯兌、徵收、損失補償、爭端解決等6項目進行規範。他說，兩岸投資保障協議目前在仲裁機制和台商人身安全保障上仍無法達成共識，尤其是在爭端解決與仲裁機制上，牽涉到需要指定國際仲裁機構。
依據國際間相關協議的慣例做法，簽約雙方都會指定世界銀行或WTO等國際仲裁機構，擔任爭端仲裁單位。但施顏祥解釋，之所以無法比照一般國際慣例，主要是台灣並不是世界銀行的會員，至於援引WTO擔任國際仲裁機制也不適合，因為WTO是多邊架構組織，不適用兩岸雙邊架構組織。
另外，兩岸投保協議本來就是兩岸ECFA協議架構下進行的後續協議，因此後續協議涉及爭端解決，本該回歸ECFA賦予經合會爭端調解的架構下進行，另兩岸特殊政治環境及台商特殊需求，也需建立具兩岸特色的爭端解決機制。其言下之意，未來雙方可能模式，是在兩岸經合會架構下，建立具有「國際特色」的兩岸仲裁機制，做為解決涉及公權力或民間商事爭端時的解決途徑。
立院催生新機制
據了解，兩岸經貿糾紛調解，包括台商及民間設立的機構，就有300多個。立委丁守中昨天也在立法院催生「兩岸聯合調解仲裁機制」。
(本篇由勇銘助教張貼)
【記者陳秀蘭／台北報導】
經濟部長施顏祥昨日在答覆立委的質詢時指出，兩岸投保協定目前還在協商中，要在本月中召開的第6次江陳會完成簽署「困難度很高」，儘管會列入協商議程，但「不一定會簽」。
兩岸預定在本月16日至18日召開的第6次江陳會中簽署兩岸投資保障協議，但施顏祥昨天的說法，也為兩岸投保協議能否順利簽署，投下變數！
施顏祥說，如果在本月中下旬召開，時間太緊迫，達成協議困難度高。陸委會副主委高長說，6次江陳會時間還未確定，16日至18日是我方主觀意願。
另外，面對外界關切兩岸投保協議的是否引進國際仲裁機制，施顏祥也首度表示，由於兩岸投保協定是兩岸ECFA文本規範的4項後續展開的協議之一，依據ECFA文本，最後很可能回到調解ECFA糾紛爭議的兩岸經合會的架構機制。此說法也等於間接透露兩岸投資保障協議，我方將放棄指定國際仲裁機制擔任仲裁單位。
施顏祥、高長昨天赴立法院經濟委員會，就「推動兩岸洽簽投保協議情形」進行專案報告。會中，對立委逼問即將在本月16日至18日舉行第六次江陳會簽署兩岸投保協議內容。施顏祥作了上述表示。
人身安全未達共識
高長在報告時指出，兩岸投資保障協議的內容將參考國際上雙邊投資協定案例、並考量兩岸的特殊性，就投資人定義、投資待遇、匯兌、徵收、損失補償、爭端解決等6項目進行規範。他說，兩岸投資保障協議目前在仲裁機制和台商人身安全保障上仍無法達成共識，尤其是在爭端解決與仲裁機制上，牽涉到需要指定國際仲裁機構。
依據國際間相關協議的慣例做法，簽約雙方都會指定世界銀行或WTO等國際仲裁機構，擔任爭端仲裁單位。但施顏祥解釋，之所以無法比照一般國際慣例，主要是台灣並不是世界銀行的會員，至於援引WTO擔任國際仲裁機制也不適合，因為WTO是多邊架構組織，不適用兩岸雙邊架構組織。
另外，兩岸投保協議本來就是兩岸ECFA協議架構下進行的後續協議，因此後續協議涉及爭端解決，本該回歸ECFA賦予經合會爭端調解的架構下進行，另兩岸特殊政治環境及台商特殊需求，也需建立具兩岸特色的爭端解決機制。其言下之意，未來雙方可能模式，是在兩岸經合會架構下，建立具有「國際特色」的兩岸仲裁機制，做為解決涉及公權力或民間商事爭端時的解決途徑。
立院催生新機制
據了解，兩岸經貿糾紛調解，包括台商及民間設立的機構，就有300多個。立委丁守中昨天也在立法院催生「兩岸聯合調解仲裁機制」。
(本篇由勇銘助教張貼)
2010年11月30日 星期二
社評－投保協議是兩岸聯手走向世界之鑰
資料來源: 旺報 2010/11/30
http://news.chinatimes.com/forum/0,5252,11051404x112010113000458,00.html
五都選舉結束，兩岸經貿議題隨之登場。月中即將舉行第六次江陳會，兩岸投資保障協議與兩岸經濟合作委員會組織運作相關協議如果協商順利，即可完成簽署換文程序。
我們尤其盼望投資保障協議正式簽署後，可以為大陸廣大的台商撐開強力的「保護傘」，也希望台灣能夠大幅開放投資市場，促使陸資透過台灣聯結全球主流投資市場。
兩岸投資保障協議內容將包括兩大主題，一是投資保護，二是投資促進。我方較重視投資保護，因台商在大陸投資項目已超過8萬項，登記投資金額超過500億美元，實際投資金額應超過2000億美元。如此龐大的投資規模，不但事關眾多企業、從業員工與投資大眾的權益與家庭生計，也與台灣的經濟命脈緊密相聯。台灣方當然高度重視，希望通過兩岸投資保障協議的簽署，強力保障大陸台商的經營環境、財產權益與人身安全。
大陸方面較重視的是投資促進，希望藉兩岸投資保障協議消除所謂「陸資歧視」現象。台灣雖然已於2009年開放陸資入台，但對陸資設下比其他外資更為嚴格的禁止與規範條件，如部分高科技產業，美日等外資均可投資，卻獨陸資設限，陸方非常詬病。大陸商務部長陳德銘曾說，在兩岸簽署投資保障協議前，大陸企業將暫緩入台投資。事實上，開放陸資入台一年來，陸資實際入台微乎其微。大陸顯然希望藉投資保障協議的洽簽，促使台灣取消歧視陸資規定，讓陸資取得平等地位後再鼓勵陸資入台。
總的看來，兩岸對投資保障協議內容，可說是各有所求，強調方向不一，且彼此立場也存在著矛盾。除所謂「陸資歧視」問題外，大陸對台商投資保護問題也有一些意見。部分大陸智庫學者就公開主張，大陸既已制定《台商投資保護法》及實行細則，提供台商足夠而適切的保障，台灣無需以公權力乃至以國際慣例介入台商保護，尤其台灣主張仲裁條款納入國際仲裁機構，以強化兩岸爭議的解決機制，但大陸很難接受。
第六次江陳會舉行在即，兩岸對投資保障協議的爭議實宜「各讓一步」，以求盡早達成共識。萬一江陳會上提不出協議文本，而致簽署不成，勢將嚴重衝擊兩岸經貿合作氛圍，不利兩岸和平發展大局。
兩岸雙方如何各讓一步呢？其實兩岸恢復經濟議題協商超過兩年，在良好的政治、社會氛圍下，已發展出經貿議題不涉政治爭議的共識，而兩岸投資保障的主體是企業單位，相關規範實在可以與政治脫鉤。何況台資在大陸一向準用外資法規，並未造成政治爭議。按理兩岸投資保障協議並行引用台灣及大陸的公權力，乃至國際引用慣例，應屬依循舊例。這種「務實主義」的表現，目的在完善投資保障機制，而非挑戰政治原則。更何況，兩岸投資保障協議將來也要保障入台陸資。現在就把該協議條文訂得完善周延，將來協議對入台陸資的保障也會更有力度。陸資入台數量雖然現在還少，但長期看總會大幅擴張。
而台灣方面所要做的，是全面檢討「陸資歧視」法規，應重新審視這些條文是否有繼續存在的理由。如果當初設定這些法規，只是基於權宜性或敵對性的「防範」心理，就應該全盤調整。兩岸已經簽署ECFA，正要展開全面性的經貿合作，再對陸資作特別管制未免突兀。
更大格局地看，台灣應進一步對全球開放投資市場。台灣剛在APEC高峰會上宣示，要通過泛太平洋戰略經濟夥伴協定（TPP）參加亞太自由貿易區（FTAAP）。台灣有必要盡早對全球實行經貿自由化，如此才具備「取得門票」的條件。其中，對陸資入台採取「一視同仁」的對待，乃是重要一環。因台灣可藉此爭取大陸支持，以順利參與TPP與FTAAP。換言之，如能取消嚴格管制陸資的相關規定，將有助兩岸「經濟互信」的強化，使台灣更有條件參與亞太經貿整合過程。
(本篇由勇銘助教張貼)
http://news.chinatimes.com/forum/0,5252,11051404x112010113000458,00.html
五都選舉結束，兩岸經貿議題隨之登場。月中即將舉行第六次江陳會，兩岸投資保障協議與兩岸經濟合作委員會組織運作相關協議如果協商順利，即可完成簽署換文程序。
我們尤其盼望投資保障協議正式簽署後，可以為大陸廣大的台商撐開強力的「保護傘」，也希望台灣能夠大幅開放投資市場，促使陸資透過台灣聯結全球主流投資市場。
兩岸投資保障協議內容將包括兩大主題，一是投資保護，二是投資促進。我方較重視投資保護，因台商在大陸投資項目已超過8萬項，登記投資金額超過500億美元，實際投資金額應超過2000億美元。如此龐大的投資規模，不但事關眾多企業、從業員工與投資大眾的權益與家庭生計，也與台灣的經濟命脈緊密相聯。台灣方當然高度重視，希望通過兩岸投資保障協議的簽署，強力保障大陸台商的經營環境、財產權益與人身安全。
大陸方面較重視的是投資促進，希望藉兩岸投資保障協議消除所謂「陸資歧視」現象。台灣雖然已於2009年開放陸資入台，但對陸資設下比其他外資更為嚴格的禁止與規範條件，如部分高科技產業，美日等外資均可投資，卻獨陸資設限，陸方非常詬病。大陸商務部長陳德銘曾說，在兩岸簽署投資保障協議前，大陸企業將暫緩入台投資。事實上，開放陸資入台一年來，陸資實際入台微乎其微。大陸顯然希望藉投資保障協議的洽簽，促使台灣取消歧視陸資規定，讓陸資取得平等地位後再鼓勵陸資入台。
總的看來，兩岸對投資保障協議內容，可說是各有所求，強調方向不一，且彼此立場也存在著矛盾。除所謂「陸資歧視」問題外，大陸對台商投資保護問題也有一些意見。部分大陸智庫學者就公開主張，大陸既已制定《台商投資保護法》及實行細則，提供台商足夠而適切的保障，台灣無需以公權力乃至以國際慣例介入台商保護，尤其台灣主張仲裁條款納入國際仲裁機構，以強化兩岸爭議的解決機制，但大陸很難接受。
第六次江陳會舉行在即，兩岸對投資保障協議的爭議實宜「各讓一步」，以求盡早達成共識。萬一江陳會上提不出協議文本，而致簽署不成，勢將嚴重衝擊兩岸經貿合作氛圍，不利兩岸和平發展大局。
兩岸雙方如何各讓一步呢？其實兩岸恢復經濟議題協商超過兩年，在良好的政治、社會氛圍下，已發展出經貿議題不涉政治爭議的共識，而兩岸投資保障的主體是企業單位，相關規範實在可以與政治脫鉤。何況台資在大陸一向準用外資法規，並未造成政治爭議。按理兩岸投資保障協議並行引用台灣及大陸的公權力，乃至國際引用慣例，應屬依循舊例。這種「務實主義」的表現，目的在完善投資保障機制，而非挑戰政治原則。更何況，兩岸投資保障協議將來也要保障入台陸資。現在就把該協議條文訂得完善周延，將來協議對入台陸資的保障也會更有力度。陸資入台數量雖然現在還少，但長期看總會大幅擴張。
而台灣方面所要做的，是全面檢討「陸資歧視」法規，應重新審視這些條文是否有繼續存在的理由。如果當初設定這些法規，只是基於權宜性或敵對性的「防範」心理，就應該全盤調整。兩岸已經簽署ECFA，正要展開全面性的經貿合作，再對陸資作特別管制未免突兀。
更大格局地看，台灣應進一步對全球開放投資市場。台灣剛在APEC高峰會上宣示，要通過泛太平洋戰略經濟夥伴協定（TPP）參加亞太自由貿易區（FTAAP）。台灣有必要盡早對全球實行經貿自由化，如此才具備「取得門票」的條件。其中，對陸資入台採取「一視同仁」的對待，乃是重要一環。因台灣可藉此爭取大陸支持，以順利參與TPP與FTAAP。換言之，如能取消嚴格管制陸資的相關規定，將有助兩岸「經濟互信」的強化，使台灣更有條件參與亞太經貿整合過程。
(本篇由勇銘助教張貼)
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