中國自由貿易協定下國家間爭端解決條款之再評價

Abstract

有關中國自由貿易協定（FTA）中爭端解決條款（dispute resolution clause，簡稱DRC）的研究並不多，探討過此問題的學者均給予負面評價。本論文首先分析其方法，質疑其結論，並進而進行更完整的分析，以便獲得更周延的見解。 多數其他研究者僅比較中國DRC與WTO的DSU（dispute settlement understanding，即爭端解決機制），即作出評價；故其對中國DRC並不滿意，有其原因。筆者認為，這種研究方法僵硬，無法正確衡量中國DRC的品質。 再者，學者一般沒有深入探究中國FTA中DRC的細節；也沒有具體指明問題所在。而只繞著圈子立論：因為中國文化傾向於運用談判解決衝突，而非依賴規則，所以中國沒有能力承擔以規則取向的爭端解決方式。實際上，運用談判技巧解決衝突既正常又健康；而值得注意的是，在談判失敗之後，中國是否難以接受第三者仲裁。 筆者認為，與其事先以WTO的DSU做為比較的對象，不如綜觀中國FTA中所有DRC，探究其爭端處理的方式。 筆者的研究結果顯示，中國FTA都設有關於談判與仲裁程序的規定。首先，所有的FTA中都有硬性談判期限；並且雙方都有權利放棄談判，進行仲裁。再者，中國少數FTA係確保雙方起動仲裁程序的權利；大部分FTA只允許申訴方啟動仲裁程序。顯然，如僅看其FTA的內容，尚不能確定中國是否傾向於談判或仲裁。 雖然每一協定都仍有疑點，但中國FTA對第三方仲裁的規定相當清楚；從仲裁者的選擇機制到仲裁者所需履行的程序皆然；並且仲裁結果一般均具有約束力。 根據筆者的解讀，研究者處理中國FTA中的DRC時，視中國為大國，因而懷疑其對規則導向的爭端處理的堅持，並使用過高的標準來衡量。然而，本文研究結果顯示，中國這方面的作法與其他國家並無明顯差異。

Although there has been almost no research conducted on China’s bilateral dispute resolution clauses, the few scholars who have examined China’s FTAs were unimpressed by China’s interstate dispute resolution chapters. Taking these views as the initial inspiration of this inquiry, this thesis reassesses China’s dispute resolution chapters by analyzing the arguments of scholars and their research methodologies, in addition to conducting a survey of all dispute resolution chapters found in China’s FTAs. This thesis demonstrates that scholars have little faith in China’s ability to honor its commitments to rule-based dispute resolution. Thus, they dismiss these dispute resolution chapters without conducting a rigorous analysis. In fact, most of the scholars surveyed in the thesis failed to identify specific concerns with China’s dispute resolution chapters and merely quoted China’s traditional distaste of rule-based dispute resolution. As will be discussed in Chapter 3, such an analytical approach is highly problematic. Second, most of the scholars surveyed in the thesis have been comparative in their analysis of China’s dispute resolution chapters and evaluated their quality with reference to the WTO DSU. This explains why the academic community is largely dissatisfied with China’s dispute settlement chapters. A deeper look into this research methodology demonstrates that it is overly rigid, prescriptive and does not accurately portray the quality of China’s agreements. This is because of the fact that scholars mostly measure effectiveness through a comparison of various design features and not substantive content. In order to overcome existing analytical pitfalls and provide a fresher perspective on China’s interstate dispute resolution chapters, this thesis conducts a survey of all bilateral dispute resolution chapters found in China’s free trade agreements. The approach offers a number of advantages over existing methodologies. First, it is less prescriptive and measures the effectiveness of an agreement based on its actual contents rather than based on expectations of what a dispute resolution chapter should contain. Second, it allows one to test observations made by scholars who have examined China’s dispute resolution chapters. Are China’s dispute resolution chapters promoting negotiated settlement of disputes? If so, is such a preference manifested in a manner that could make it difficult for parties to engage in third-party arbitration? Are these agreements inadequate or vague? The survey demonstrates that China’s apparent preference for consultations is not clearly manifested in its agreements. Most of China’s agreements allow only the complaining party to initiate arbitration. While this is not a major area of concern, it nonetheless shows that parties are not given equal access to third-party arbitration. However, two of China’s agreements allow both sides to file arbitration complaints. Additionally, in all cases, consultations are subject to firm deadlines and do not create opportunities for parties to stonewall proceedings. The thesis also argues that, in most of these FTAs, parties may directly forego consultations and proceed to arbitration. With regards to arbitral proceedings, most of China’s FTAs provide parties with an effective and predictable dispute settlement mechanism to resolve their differences. While FTAs with Costa Rica and New Zealand have the potential to complicate the resolution of disputes (as they are most unpredictable), all other agreements employ very typical dispute resolution formats. Thus, while China’s agreements exhibit a number of idiosyncrasies, they do not demonstrate the problems identified by the scholarly community.