Jie Huang is Associate Professor of Law and Director of the Foreign Affairs Department at the Shanghai Institute of Foreign Trade School of Law.
On August 9, 2012, Mainland China and Taiwan concluded the Cross-Strait Bilateral Investment Protection and Promotion Agreement (hereinafter “BIA”) during the eighth Chen-Jiang Meeting (meeting between the Association for Relations across the Taiwan Straits and Straits Exchange Foundation). It is the first cross-strait investment agreement and also the first follow-up agreement to the Economic Cooperative Framework Agreement (hereinafter “ECFA”) concluded on April 26, 2009.
As a highlight of the BIA, the dispute resolution mechanism covers three types of disputes: disputes between Parties to the BIA, investment disputes, and investment business disputes. This post focuses on the latter two types. All comments are highly appreciated.
The BIA defines “investment dispute” as a dispute between an investor and a host region where the investor claims that the host region fails to fulfill its obligations under the BIA and results in the investor’s losses. The BIA provides five different options to resolve such a dispute: (1) through friendly negotiations between an investor and a host region; (2) through the coordination mechanism at the place of the investment or at the next higher level; (3) through the assistance provided by the investment division of the ECC; (4) through the Mediation Procedure for Investment Disputes Concerning Compensation (hereinafter “Mediation Procedure”); and (5) through the administrative or judicial proceedings in a host region. The Mediation Procedure is different from the other four options, because it only deals with investment disputes concerning compensation. Mainland China and Taiwan shall exchange and publish a name list of the Cross-Strait Investment Dispute Resolution Organization soon after the BIA becomes effective. Investors can submit investment disputes concerning compensation to this Organization according to the Mediation Procedure. Every half a year, the Organization shall report to the investment division of the ECC about results of investment compensation disputes. If an investor has initiated an administrative or judicial proceedings for his or her investment disputes concerning compensation in a host region, the investor is precluded from submitting the same dispute to the Cross-Strait Investment Dispute Resolution Organization, except as otherwise provided by the law of the host region.
The Mediation Procedure is an annex to the BIA. An investor can submit an investment dispute concerning compensation to the Cross-Strait Investment Dispute Resolution Organization according to the Mediation Procedure. Notably, a host region cannot reject the jurisdiction of the Organization, because by concluding the BIA, both Mainland China and Taiwan have consented to the jurisdiction of the Organization. The Mediation Procedure requires the Organization to solve investment disputes concerning compensation in an objective, fair, just, and reasonable way. Investors and the host region should actively and honestly participate in the mediation without undue delay. Except as otherwise agreed by the parties, the mediation process is confidential. The confidential obligation also binds the Cross-Strait Investment Dispute Resolution Organization, its staff, and mediators, except as otherwise agreed by the parties. However, the right to mediation under the Mediation Procedure will expire in three years starting from the investors know or should have known the host region breaches the BIA. Nevertheless, the statute of limitation can be suspended if the delay is caused by force majeure.
According to the Mediation Procedure, a mediator shall be neutral and try to help both parties to reach a consensus. If parties reach a consensus, the mediator shall prepare a mediation agreement according to the consensus, both parties and the mediator shall sign or seal the agreement, and the Cross-Strait Investment Dispute Resolution Organization shall also affix its stamp to the agreement. Mainland China and Taiwan shall establish a new system or improve the existing one for recognition and enforcement of mediation agreements. Investors can also recognize and enforce mediation agreements in a Party according to its law. If parties fail to reach an agreement in the mediation, they can submit the same dispute to administrative or judicial proceedings of a host region. However, except as otherwise agreed upon by the parties, any indication, confession, and concession made by a party or the mediator in the mediation process shall not be introduced as evidence unfavorable to the party in the administrative or judicial proceedings. Moreover, under the Mediation Procedure, remedies for investment disputes concerning compensation are limited to the following three options: (1) monetary compensation and appropriate interests; (2) property restitution, or using monetary compensation and interests to replace property restitution; (3) other lawful compensation agreed upon by the parties.
The five options to resolve investment disputes between an investor and a host region are a distinguished part of the BIA. Except the administrative and judicial proceedings, the other four options are non-adversarial dispute settlement methods different from arbitration and litigation. From this aspect, the BIA is significantly different from international free trade agreements or bilateral investment treaties recently concluded by Mainland China, where international arbitration is a prevalent method to resolve disputes between an investor and a host state. The non-litigious Chinese tradition is only a superficial explanation of why the BIA prefers non-adversarial dispute resolution methods. The deep reason is that Mainland China and Taiwan have not yet resolved the issue of sovereignty, and adopting international investment arbitration for disputes between an investor and a host region may complicate the issue. The cross-strait relationship is so delicate that Mainland China tries to avoid any possibility that may internationalize cross-strait disputes. Therefore, the BIA does not adopt international investment arbitration.
The BIA’s emphasis on non-adversarial methods to resolve investment disputes also probably results from the successful practices of Taiwan Affairs Office at all levels, SEF, ARATS, and mediation practices in both Mainland China and Taiwan. Different from Taiwan Affairs Office, SEF, and ARATS, the Mediation Procedure under the BIA imposes both Mainland China and Taiwan an obligation to recognize and enforce mediation agreements. Also compared with judges in judicial mediation in Mainland China, the Cross-Strait Investment Dispute Resolution Organization is more neutral, because the Organization is an interregional institution. The investment division of the Economic Cooperation Committee (hereinafter “ECC”) is also an interregional authority created under the BIA to handle investment matters. The institutionalized protection will help boost investors’ confidence that their investment will not be discriminated by regional laws. Therefore, the dispute resolution methods under the BIA will combine the advantages of the current non-adversarial methods in regional laws to resolve investment disputes.
Notably, the BIA gives no claim to a host region against an investor in investment dispute. It also does not indicate whether a host region is allowed to bring a counterclaim against an investor in a case brought by the investor under the BIA.
Moreover, investors shall not invoke Article 3.4 of the BIA (most-favoured-nation treatment) to apply dispute resolution mechanisms in the bilateral investment treaties concluded by Mainland China or Taiwan, respectively. In other words, investors must select one of the five options under Article 13 of the BIA to resolve investment disputes with a host region. This is to prevent an investor from picking and choosing from different investment treaties by the most-favoured-nation clause. Importantly, this also avoids Taiwan residents to follow the example of Tza Yap Shum v. The Republic of Peru, to invoke bilateral investment treaties concluded by Mainland China. Furthermore, the definition of the “investor” under the BIA includes a business entity established in a third region but owned or controlled by a Mainland or Taiwan investor. Therefore, theoretically, if this third region has an investment treaty with Mainland China or Taiwan, this business entity can enjoy the protection under the treaty. Therefore, this business entity should have rights to invoke either the BIA or the treaty. However, in terms of dispute resolution mechanism, it cannot combine the BIA and the treaty.
Additionally, the confidentiality of the Mediation Procedure brings pros and cons. Without the exposure to the news media and the interference of interested third parties, a closed procedure may streamline the dispute resolution and promote parties to reach an agreement quickly. In investment arbitrations, parties can also close their procedure and make everything confidential. However, compared with well-developed international arbitration rules, the Mediation Procedure is not a sophisticated procedure. At least, it does not provide rules for joinder of additional parties and it also does not impose parties an obligation to inform interested third parties. Because the Mediation Procedure is confidential, if an investment dispute concerns a third party or the general public, they may have no opportunity to be heard in the Procedure.
Investment Business Disputes
According to the BIA, the concept of “investment business dispute” refers to a business dispute related to investment between an investor of a Party and a natural person, a legal person, or any other business entity of the other Party. Therefore, investment business disputes are between private parties. Private parties can submit their disputes to arbitration if they reach arbitration agreements before or after their disputes. The arbitration should be conducted under the auspices of arbitration institutions in Taiwan or Mainland China (Hong Kong and Macao included). But the seat of arbitration can be outside of China, such as Singapore, as long as it is mutually agreed upon by the parties. The arbitration award can be recognized and enforced in either Mainland or Taiwan courts according to relevant regional laws. Allowing parties to select a Taiwan arbitration institution to resolve investment business disputes is a breakthrough in current Mainland law. Article 24 of the Rules for Implementation of Law on Protecting Taiwan Compatriots’ Investment provides that investment business disputes can be submitted to a Mainland arbitration institution only. Therefore, after the BIA becomes effective, it will prevail against Article 24 of the Rules for Implementation of Law on Protecting Taiwan Compatriots’ Investment. Both Mainland and Taiwan arbitration institutions can hear investment business disputes. In case that parties fail to reach an arbitration agreement, they can bring a lawsuit before a competent court in the two regions.