| Summary: | 碩士 === 國立臺灣大學 === 法律學研究所 === 101 === 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.
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