两岸投资协议的制度创新与实施前景

The Cross-strait Investment Agreement: Institutional Innovation and Prospect of Implementation

在长达20年的时间里,海峡两岸围绕投资保护和促进协议的谈判大致经历了两会议题交换、两会准备启动但被搁置、民间酝酿重启以及实质性推进四个阶段。《海峡两岸投资保护和促进协议》既参考了国际投资保护与促进协议的一般体例,又在充分考虑两岸关系的特殊性、双方投资者的关切以及协议的执行力等因素的基础上,在适用范围、投资待遇、人身保护和争端解决等方面作出了具有两岸特色的制度创新。在短期内,该协议在促进两岸相互投资方面的经济效应仍有待观察,但其有助于锁定两岸相互投资关系法律化的成果,避免两岸新增投资壁垒的出现,是逐步迈向两岸双向投资便利化的必要法律步骤。

Over the past twenty years, negotiations on investment protection and promotion between both sides of the Taiwan Strait can be divided into four stages, i.e. , from exchanging topics of discussion in the NPC and CPPCC sessions, shelving the ready-to-start programs in the NPC and CPPCC sessions, re-launching the programs by private businesses, to gaining substantive progress. The Cross-strait Agreement on Investment Protection and Promotion not only followed the gen- eral practice of international investment and promotion treaties but also considered such factors as the unique features of cross-strait relations, the reasonable concerns of investors on both sides and the enforceability of the agreement. It is an ex- ample of institutional innovation with cross-strait characteristics on the following specific provisions, i.e. , the scope of ap- plication, treatment of investment, personal safety and dispute settlement. It is still too early to forecast the economic effect of this agreement on the promotion of mutual investment across the Strait in the short run, but it will definitely prove con- tributory to securing the accomplishment of the legalization of cross-strait mutual investment relations and avoiding new in- vestment barriers. Therefore, it is a necessary legal step made to facilitate mutual investment across the Strait.