兩岸投資爭端解決機制之研究

Abstract

本論文「兩岸投資爭端解決機制之研究」主要研究問題：兩岸投資爭端解決機制之過去和現狀，以及「海峽兩岸投資保護和促進協議」（兩岸投保協議）爭端解決機制之介紹與評析。 海峽兩岸經貿交流密切，台商赴大陸投資絡繹不絕，衍生的爭端也屢見不鮮。對於境外投資者而言，公正的紛爭解決機制十分重要。適逢台灣與中國大陸於2012年8月9日由海基會與海協會完成簽署兩岸投保協議，除了是兩岸經濟合作架構協議（ECFA）下一大進展外，亦是保障投資人之重要指標。 本論文即以投保協議中爭端解決機制為核心加以探索與檢討，比較和其他國家簽訂的投保協議相關內容。另外整理出協議簽訂前之既有爭端解決機制，如訴訟、仲裁、調解、協商等，歸納其優缺點，再對照兩岸投保協議內容加以檢討。輔以海基會與經濟部公布之真實案例來檢驗既有機制的不足，同時藉此判斷協議條款之實用性。最後依照以上研究過程之結果，對兩岸投保協議中爭端解決機制提出結論。

The economic interchange between Taiwan and Mainland China has been processing for a long period. Taiwan investors invested large amounts of money in Mainland China; however, the disputes happened a lot. Whether the dispute was between the Taiwan investor and Mainland China Government, or between the investors, the Taiwan investors were rarely treated fairly. After Taiwan and Mainland China singed Cross-Strait Bilateral Investment Protection and Promotion Agreement in August, 2012, it is more meaningful to discuss the investment dispute resolution.In this thesis, the following two topics are discussed. First, to gather the investment dispute resolutions before Cross-Strait Bilateral Investment Protection and Promotion Agreement was signed. Second, to discuss the pro and con of the investment dispute resolutions provided by Cross-Strait Bilateral Investment Protection and Promotion Agreement, and give the author’s opinions. The investment dispute resolutions are summarized and reviewed. In this thesis, I summarized and discussed the investment protection agreements which were signed between Mainland China and other countries or between Taiwan and other countries, and studied the cases about the difference of the investment dispute resolutions. But, the dispute resolution provided by Cross-Strait Bilateral Investment Protection and Promotion Agreement did not achieve the breakthrough results through the laws which were signed by Mainland China government. However, this bilateral investment protection and promotion agreement was still a milestone for the economics interchange between Taiwan and Mainland China. If this agreement is fully carried out, the economics interchange between Taiwan and Mainland China will be deeply influenced.