I. INTRODUCTION II. TRIPS AND FTA A. Overview B. IP Issues in FTA Negotiations C. Taiwan's Approach D. China's Approach III. CHINA AND ITS CEPAs WITH HONG KONG AND MACAU. A. Overview B. Supplements to the Hong Kong CEPA C. Supplements to the Macau CEPA D. Comments IV. ECFA WITHOUT IP-RELATED PROVISIONS: IMPLEMENTATION OF THE "ONE CHINA" PRINCIPLES A. "One-China" Prerequisite B. Role of a Separate IP Agreement V. AFTERMATH OF THE ECFA VI. CONCLUSION
China continues to consider Taiwan as its territory. (1) In recent years, China has made many efforts to incorporate Taiwan into its economic system. (2) The traditional approach was to attract Taiwanese companies to set-up manufacturing facilities in China. (3) The new approach characterizes the Chinese market as Taiwan's most promising export market. (4) In 2010, China finally had a chance to include Taiwan into a central government-to-local government scenario. (5)
On June 29, 2010, Taiwan and China entered into an "agreement" named "Cross-Straits Economic Cooperation Framework Agreement" ([TEXT NOT REPRODUCIBLE IN ASCII], liang an ring ji he zuo jia gou xie yi, in Mandarin Chinese; hereinafter, ECFA) (6) which then was ratified by the Legislative Yuan (Taiwanese congress) on August 17, 2010. (7) The ECFA was designed, according to the Ma Ying-Jeou Administration, to facilitate stronger economic cooperation between the two states. (8) Particularly, the ECFA was expected by the same administration to make Taiwan a gateway for foreign companies to enter the Chinese market. (9)
During the making of the ECFA, another agreement was being negotiated by the two countries. (10) This unique agreement was specifically about the affairs of intellectual property protection (11) and is called "Cross-Strait Agreement on Intellectual Property Right Protection and Cooperation" ([TEXT NOT REPRODUCIBLE IN ASCII], hai xia liang an zhi hui cai chan quan bao hu he zuo xie yi, in Mandarin Chinese; hereinafter, Taiwan-China IP Agreement). (12) The Taiwan-China IP Agreement and ECFA were signed on the same day. (13)
Some commentators try to characterize the ECFA as a free trade agreement (FTA). (14) However, the ECFA is not a FTA because of its two distinctive features. First, the signatory representatives are not government agencies responsible for economic affairs. (15) The Taiwanese signatory is the Strait Exchange Foundation ([TEXT NOT REPRODUCIBLE IN ASCII], hai xia jiao liu ji fin hui, in Mandarin), while the Chinese signatory is the Association for Relations across the Taiwan Straits ([TEXT NOT REPRODUCIBLE IN ASCII], hai xia liang an ring mao jiao liu xie hui, in Mandarin Chinese), a special association created by the Chinese Government to deal with Taiwan affairs to avoid recognizing Taiwan's statehood. (16) The formation of the ECFA was managed by this Chinese special association. (17) On the other hand, China's FTAs are managed by the Ministry of Commerce. (18) The signature of each FTA is the Government of the People's Republic of China. (19) Hence, the ECFA is very different from China's regular FTA practice, which shows that China intended to treat the ECFA as a non-FTA agreement.
Second, the ECFA does not have IP-related provisions. (20) The independency of the Taiwan-China IP Agreement from the ECFA further demonstrates that the ECFA is not a FTA. (21) The general practice of forming a FTA includes IP clauses in an agreement. (22) For example, the United States always raises IP issues in negotiating FTAs with other countries and provides clauses in its model FTA. (23) Even China, as this Article discusses, has included IP clauses in its FTAs. (24) Therefore, China must have reasons for structuring the ECFA without IP clauses.
This Article particularly explores the second distinctive feature of the ECFA, a lack of IP-related provisions, and is intended to address what Taiwan has lost through the ECFA. …