试论两岸投资争端解决的仲裁方法

Discussion on Arbitration Policy of Settling Investment Disputes between Taiwan and Mainland

仲裁方法广泛运用于国际投资争端的解决,亦可运用于两岸投资争端的解决。两岸可以事先订立区际仲裁协议,创设两岸间的仲裁组织,并设专门的投资仲裁庭。两岸投资仲裁以两岸间的区际经济协议为最主要的法律依据,并由两岸协商确定具体的程序规则。对于仲裁裁决,需要有配套的复核救济程序以及完善的执行监督措施。应规定只有香港、澳门两个经济体有资格成为本区际投资仲裁机制的第三方,以促两岸四地相互投资的热络与和谐。考虑到两岸尚未真正实现双向投资,目前还不宜设计和采行私主体直接参与的制度。

Having been widely applied in settling disputes of international investment, arbitration methods could also be used in solving investment disputes between Taiwan and mainland. Taiwan and mainland may conclude an interregional arbitration agreement in advance, found an arbitration organization and set up a special arbitral court. Investment arbitration between Taiwan and mainland takes their interregional arbitration agreement as the major legal basis, and determines concrete rule of procedure by negotiation between the two sides. For arbitration award, a matched re-check remedy procedure as well as thorough measures of supervision over execution is necessary. It is to be formulated that only Hong Kong and Macao, these two economic entities, could become the third party in interregional investment arbitration mechanism, so as to promote the intensity of mutual investment among the four regions. While considering that real two-way investment between Taiwan and mainland has not been realized, we don’t think it appropriate to devise or apply systems that private subjects could participate directly.