{"title":"迈向欧盟-台湾双边投资协定:路线图","authors":"Chien-Huei Wu","doi":"10.4337/9781788971904.00020","DOIUrl":null,"url":null,"abstract":"In its latest trade strategy document, released in 2015, Trade for All, the EU declared that “[B]uilding on the investment provisions under negotiation with China, the EU will explore launching negotiations on investment with Hong Kong and Taiwan”. Such proposal has been welcomed by Taiwan, but the road toward an EU-Taiwan bilateral investment treatment (BIT) is destined to be long and tortuous. \nPolitically, the EU has, since the establishment of official diplomatic relations with China in 1975, adhered to a “One China policy”. Whether and how this “One China policy” might impact the shape and substance of a EU-Taiwan BIT is a subject to be explored. This political issue can be expressed in two specific questions. On the EU side, it is doubtful whether the EU would be willing to conclude a BIT with Taiwan before the inking an EU-China BIT. On the Taiwan side, the juxtaposition of Taiwan and Hong Kong seems to imply that the EU treats Taiwan and Hong Kong equally, at least from an economic perspective. Whether such a juxtaposition undermines Taiwan’s sovereignty should be carefully examined. \nLegally, while the EU and Taiwan are both Members of the World Trade Organisation (the WTO), they are not active actors in international investment law. Moreover, given that the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) is open for signature only to sovereign states, neither the EU nor Taiwan is contracting parties to this Convention; similarly, the institutional design of the International Centre for the Settlement of Investment Disputes (ICSID) limits its activities to sovereign states, the dispute settlement mechanism of an EU-Taiwan BIT should be thus located in some other forum. Would such a design affect the effectiveness of an investment dispute resolution? Additionally, as there are no official diplomatic relations between the EU and Taiwan, how should this EU-Taiwan BIT be signed is also an intriguing question. Would it be done through their respective missions, or are their missions to the WTO an option? \nIn view of these uncertainties, this chapter aims to probe the possible course of the EU-Taiwan BIT negotiations and outline a roadmap. This chapter first portrays current political and economic relations between the EU and Taiwan and then explores the possible form of the envisaged EU-Taiwan BIT by examining such critical issues as the contracting parties, the design of investor-State dispute resolution, the investment court proposal by the EU and the sequence in which the EU might conclude BITs with China and Taiwan.","PeriodicalId":378416,"journal":{"name":"International Economic Law eJournal","volume":"55 1","pages":"0"},"PeriodicalIF":0.0000,"publicationDate":"2018-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":"{\"title\":\"Toward an EU-Taiwan Bilateral Investment Treaty: A Roadmap\",\"authors\":\"Chien-Huei Wu\",\"doi\":\"10.4337/9781788971904.00020\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"In its latest trade strategy document, released in 2015, Trade for All, the EU declared that “[B]uilding on the investment provisions under negotiation with China, the EU will explore launching negotiations on investment with Hong Kong and Taiwan”. Such proposal has been welcomed by Taiwan, but the road toward an EU-Taiwan bilateral investment treatment (BIT) is destined to be long and tortuous. \\nPolitically, the EU has, since the establishment of official diplomatic relations with China in 1975, adhered to a “One China policy”. Whether and how this “One China policy” might impact the shape and substance of a EU-Taiwan BIT is a subject to be explored. This political issue can be expressed in two specific questions. On the EU side, it is doubtful whether the EU would be willing to conclude a BIT with Taiwan before the inking an EU-China BIT. On the Taiwan side, the juxtaposition of Taiwan and Hong Kong seems to imply that the EU treats Taiwan and Hong Kong equally, at least from an economic perspective. Whether such a juxtaposition undermines Taiwan’s sovereignty should be carefully examined. \\nLegally, while the EU and Taiwan are both Members of the World Trade Organisation (the WTO), they are not active actors in international investment law. Moreover, given that the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) is open for signature only to sovereign states, neither the EU nor Taiwan is contracting parties to this Convention; similarly, the institutional design of the International Centre for the Settlement of Investment Disputes (ICSID) limits its activities to sovereign states, the dispute settlement mechanism of an EU-Taiwan BIT should be thus located in some other forum. Would such a design affect the effectiveness of an investment dispute resolution? Additionally, as there are no official diplomatic relations between the EU and Taiwan, how should this EU-Taiwan BIT be signed is also an intriguing question. 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引用次数: 0
摘要
在2015年发布的最新贸易战略文件《全民贸易》(trade for All)中,欧盟宣布“在与中国谈判的投资条款基础上,欧盟将探索与香港和台湾展开投资谈判”。这一提议得到了台湾方面的欢迎,但通往欧盟-台湾双边投资待遇(BIT)的道路注定是漫长而曲折的。在政治上,欧盟自1975年与中国正式建交以来,一直坚持“一个中国政策”。“一个中国政策”是否以及如何影响欧盟-台湾双边投资协定的形式和实质是一个有待探讨的问题。这个政治问题可以用两个具体问题来表示。在欧盟方面,欧盟是否愿意在签署欧中双边投资协定之前与台湾签订双边投资协定值得怀疑。在台湾方面,把台湾和香港放在一起似乎意味着,至少从经济角度来看,欧盟对台湾和香港是平等的。这种并列是否会损害台湾的主权,值得仔细审视。从法律上讲,尽管欧盟和台湾都是世界贸易组织(WTO)成员,但它们都不是国际投资法的积极参与者。此外,鉴于《解决国家与他国国民之间投资争端公约》(ICSID公约)仅开放给主权国家签署,欧盟和台湾都不是该公约的缔约国;同样,国际投资争端解决中心(ICSID)的制度设计将其活动限制在主权国家,因此欧盟-台湾双边投资协定的争端解决机制应设在其他论坛。这样的设计会影响投资纠纷解决的有效性吗?此外,由于欧盟和台湾之间没有正式的外交关系,这个欧盟-台湾投资协定应该如何签署也是一个有趣的问题。这是通过他们各自的代表团完成的,还是他们对世贸组织的代表团是一种选择?鉴于这些不确定性,本章旨在探讨欧盟-台湾投资协定谈判的可能进程,并勾勒出路线图。本章首先描述当前欧盟与台湾之间的政治和经济关系,然后通过审查缔约方、投资者与国家争端解决方案的设计、欧盟提出的投资法院建议以及欧盟可能与中国大陆和台湾达成双边投资协定的顺序等关键问题,探讨设想中的欧盟-台湾双边投资协定的可能形式。
Toward an EU-Taiwan Bilateral Investment Treaty: A Roadmap
In its latest trade strategy document, released in 2015, Trade for All, the EU declared that “[B]uilding on the investment provisions under negotiation with China, the EU will explore launching negotiations on investment with Hong Kong and Taiwan”. Such proposal has been welcomed by Taiwan, but the road toward an EU-Taiwan bilateral investment treatment (BIT) is destined to be long and tortuous.
Politically, the EU has, since the establishment of official diplomatic relations with China in 1975, adhered to a “One China policy”. Whether and how this “One China policy” might impact the shape and substance of a EU-Taiwan BIT is a subject to be explored. This political issue can be expressed in two specific questions. On the EU side, it is doubtful whether the EU would be willing to conclude a BIT with Taiwan before the inking an EU-China BIT. On the Taiwan side, the juxtaposition of Taiwan and Hong Kong seems to imply that the EU treats Taiwan and Hong Kong equally, at least from an economic perspective. Whether such a juxtaposition undermines Taiwan’s sovereignty should be carefully examined.
Legally, while the EU and Taiwan are both Members of the World Trade Organisation (the WTO), they are not active actors in international investment law. Moreover, given that the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) is open for signature only to sovereign states, neither the EU nor Taiwan is contracting parties to this Convention; similarly, the institutional design of the International Centre for the Settlement of Investment Disputes (ICSID) limits its activities to sovereign states, the dispute settlement mechanism of an EU-Taiwan BIT should be thus located in some other forum. Would such a design affect the effectiveness of an investment dispute resolution? Additionally, as there are no official diplomatic relations between the EU and Taiwan, how should this EU-Taiwan BIT be signed is also an intriguing question. Would it be done through their respective missions, or are their missions to the WTO an option?
In view of these uncertainties, this chapter aims to probe the possible course of the EU-Taiwan BIT negotiations and outline a roadmap. This chapter first portrays current political and economic relations between the EU and Taiwan and then explores the possible form of the envisaged EU-Taiwan BIT by examining such critical issues as the contracting parties, the design of investor-State dispute resolution, the investment court proposal by the EU and the sequence in which the EU might conclude BITs with China and Taiwan.