중국과 대만 양안(兩岸) 간의 경제교류 협력을 위한 투자분쟁해결 제도와 남북경협에 있어서의 시사점

The close cross-strait economic exchange between China and Taiwan has been possible since the Chinese government announced the implementation of ‘reformation and opening policy’ and ‘one country, two systems’ policy at the third session of the 11th Central Committee of the Communist Party of Chinain Dec. 1978. This has led to the expansion from human exchanges to economic exchanges based on cultural homogeneity. Investment disputes in international investment are roughly classified as follows: a) investment dispute between a foreign investor and natural person, corporation and other economic organization of investment host country; b) Investor-State Dispute (ISD) between a foreign investor and an investment host country; and c) investment dispute between the government of foreign investor and the investment host country. Each type of investment dispute has its own solution. In order to resolve the disputes arising from the international investment process, the Chinese government has set up the “Investment-State Dispute Settlement (ISD) between a foreign investor and an investment host country’ at Bilateral Investment Treaty (BIT) and Free Trade Agreement (FTA) and furthermore to resolve investment disputes between individuals, the dispute resolution methods based on international agreements and domestic laws are established. In particular, in view of the political specificity with Taiwan, the Chinese government regards the cross-strait investment disputes not as an international investment dispute but as an “investment dispute between different jurisdictions within a single country”. As a result, the “Cross-strait investment promotion and protection agreement” was concluded between China and Taiwan and through it, the investment guarantee system has been established, the transparency of the investment related regulations has been improved, and the investment dispute resolution method has been legislated, thus investment stability is being promoted. In addition in Dec. 2015, China first established the “Arbitration Center Across the Straits (ACAS)”, a private arbitration institution with independence to deal with civil and commercial disputes related to Taiwan and on Jun. 01, 2016, “Arbitration Rules for Cross-Strait Arbitration Center” was set up. I would like to suggest some points to be considered in the process of restoration of economic exchanges through normalization of relations between the two Koreas as follows by examining the investment situation and dispute resolution methods between China and Taiwan: a) establishment of a ‘Private Negotiation Organization’ for practical economic exchange and cooperation; b) in order to resolve the dispute between South and North Korea, the composition and operation of ‘the Inter-Korean Commercial Arbitration Committee’ and the enactment of the ‘Arbitration Rules’ considering the ‘special relationship’ between the two Koreas and taking into account the principle of party autonomy, c) establishment of ‘Independent Dispute Resolution System’ for Economic Exchange and Cooperation between South and North Korea; d) judicial cooperation between the two Koreas; and 5) implementation of legislation exchange and support policy to build legal infrastructure of North Korea