Taiwan TIFA: Board of Foreign Trade Passes the Buck on WTO

UNCLAS SECTION 01 OF 04 TAIPEI 000134 SIPDIS SIPDIS STATE PASS TO AIT/W STATE FOR EAP/RSP/TC, EAP/EP and EB/TPP/MTA/IPC STATE PASS to USTR for BOLLYKY and ALTBACH, STRATFORD USDOC for 4431/ITA/MAC/AP/OPB/TAIWAN/JDUTTON USDOC for USPTO Gin and Browning and Snydor USDOC FOR 3132/USFCS/OIO/EAP/WZARIT FAS FOR OCRA/Smith, Mireles E.O. 12958: N/A TAGS: ECON ETRD EIND EAGR KIPR TW SUBJECT: Taiwan TIFA: Board of Foreign Trade Passes the Buck on WTO GPA; Progress on Other Issues REF: TAIPEI 2962 Summary -------------- ¶1. On December 17 Assistant USTR Timothy Stratford and Deputy Assistant USTR Eric Altbach reviewed the U.S. - Taiwan Trade Investment Framework Agreement (TIFA) agenda with Bureau of Foreign Trade (BOFT) Director General Franco Huang and relevant government agencies. Stratford made a strong case for Taiwan acceding to the WTO GPA and accepting current footnote language. Huang stated that current footnote language was unacceptable to Taiwan at this time. Taiwan would, however, be prepared to negotiate a bilateral GPA with the US. Stratford and Huang also reviewed the status other TIFA items including possible agreements on investment and taxes. Stratford noted that Tyco was preparing to file a 301 petition and urged Taiwan to settle the case quickly. Stratford also urged Taiwan end the ban on medical devices manufactured in China, and open up Taiwan's market to chiropractors. Meetings with other officials are reported septels. End summary. Current Language Unacceptable for WTO GPA Accession -------------- -------------- ¶2. Stratford opened the meeting by urging Taiwan to move ahead with its accession to the WTO Government Procurement Agreement. He stated that the language proposed by the US together with the EU was neutral, and the benefits of accession far outweigh any negatives. Taiwan, Stratford noted, had made a commitment to accede to the GPA and had already done a great deal work negotiating its accession. The U.S. hopes that Taiwan will not be isolated and supports Taiwan's membership in international organizations where sovereignty is not a requirement. Acceding to the GPA will improve Taiwan's international standing. ¶3. Stratford said that over time it may become more difficult for Taiwan to accede to the GPA. In the future, when China is a member or is actively negotiating its own accession, the dynamic of the committee may change and requirements for Taiwan may become more onerous. The current situation may be Taiwan's window of opportunity. Stratford raised the example of Taiwan's decision not to continue it's participation in the United Nations, noting that sometimes walking away from opportunities have long-term ramifications. ¶4. The underlying principles of the GPA are worth enjoying and embracing, he continued. It would provide advantages for Taiwan's own industries in international government competitions and make government procurement in Taiwan more efficient and transparent. Our greatest hope, he said, is for Taiwan to join the WTO GPA, but if Taiwan is not ready, the U.S. is ready to launch a bilateral GPA negotiation as an alternative. The U.S. would have special advantages under a bilateral arrangement, Stratford noted, but we are trying to think broadly, beyond our own commercial interests. ¶5. In conclusion, AUSTR stated that his purpose was to get a clear indication of Taiwan's intentions in this regard. If Taiwan is not interested, USTR is extremely busy and will focus on other matters. The Nomenclature Problem is a Problem -------------- ¶6. Director General Huang acknowledged that Taiwan had committed to acceding to the WTO GPA and had finished bilateral negotiations with GPA members. He thanked both the U.S. and EU for the support that they have provided to Taiwan's accession bid. He went on to state however that Taiwan had serious problems with deal that Taiwan would have to accept to join the agreement. The first decision taken by the committee that refers specifically to "customs territories" is a problem for Taiwan and current proposed footnote language, which refers to the decision or to prior decisions, is not acceptable to Taiwan at this time. ¶7. Stratford noted that this issue had been discussed for many TAIPEI 00000134 002 OF 004 months and that the language of the footnote, while probably not ideal for Taiwan, was neutral. He hoped Taiwan could agree on the language and move to accede to the WTO GPA quickly. Huang replied that acceding to the WTO GPA was a priority for Taiwan, but that it could not accept the language as it now stands. He claimed that the Ministry of Foreign Affairs rejects the current language and has not proposed alternative language. He stated that it would probably take "several weeks" to receive an answer from MOFA as to whether other language would be acceptable. The Vice Premier would also need to be involved in the process. ¶8. Huang reassured Stratford that there were no concerns beyond the nomenclature issue blocking Taiwan's action on GPA. Stratford closed this topic by stating that he wanted to be frank so that Taiwan could understand the situation we were in. He stated that if any of the US logic was faulty to please correct him, but that logic seems clear for Taiwan's WTO GPA accession. Huang offered to push MOFA to respond quickly with any possible alternative language that would be acceptable in a footnote. Bilateral Tax Agreement -------------- ¶9. Moving on the possible bilateral tax agreement, Stratford noted that experts at the State Department and the U.S. Treasury were studying possible modalities for implementing any such agreement. Would a new law need to be passed by both houses of Congress? Which committees have jurisdiction? Exploring these issues has resulted in a delay on our side, but we are interested to move ahead on tax and investment agreements. If new tax legislation is required to implement a tax agreement, the administration may be reluctant to present such legislation to a congress which could use that as a vehicle to amend the U.S. tax code. Congressional leadership changes can also slow down the legislative process. ¶10. The U.S. Treasury is reluctant to move ahead on a tax agreement until an appropriate modality has been worked out. We are sorry that our complexities slow down the process, he said. Informal bilateral discussions might be useful and preliminary talks might be possible early next year, but the US side is not yet ready. More interagency consultations are necessary. ¶11. Taiwan Ministry of Finance officials noted that Taiwan's current tax treaties follow the OECD model, but they understand the U.S. treaty model is different. They asked for a draft agreement to informally discuss, noting that it might take some time to study. Bilateral Investment Agreement -------------- ¶12. Berton B.C. Chiu, Director General of the Department of Investment Services, MOEA led the discussion for Taiwan on the investment agreement. His office had reviewed the model agreement provided by USTR and the model agreement was now moving through the interagency process. He stated Taiwan had some technical questions about the text and anticipated that the interagency review would be completed after the end of the month. He agreed with AUSTR Stratford to forward a non-paper of Taiwan's comments by mid January and then schedule a digital video conference to discuss next steps. ¶13. Would any bilateral investment agreement need to be submitted to the U.S. Congress, he asked. Stratford replied that some form of Congressional approval would be required, but that the process would be easier than for a tax bill. Chiu asked what sectors might be covered in an agreement, noting that any agreement might have WTO implications. Stratford responded that the U.S. approach would be to have a negative list with virtually every sector covered. Altbach noted that there is no obligation under the WTO to extend MFN status to third countries for investment preferences negotiated in a bilateral agreement. ¶14. Stratford noted that during the just-completed Strategic Economic Dialogue with China both sides had agreed to set up an TAIPEI 00000134 003 OF 004 exploratory group to study a possible U.S.-China bilateral investment agreement. On the US side State and USTR lead. Commerce leads on the China side. China had wanted to launch negotiations and conclude an agreement in six months, but the US suggested at this stage it would be best begin more slowly to explore the feasibility of such an agreement. The U.S. would welcome more Chinese direct investment. Consultative Committee on Agriculture -------------- ¶15. Huang advised that Taiwan's Council on Agriculture (OA) was not opposed to establishing Consultative Committee on Agriculture (CCA), but preferred phytosanitary and sanitary issues to be covered in the technical bilateral working group which is already established. Stratford replied that it would be useful to discuss these issues via both mechanisms - at the working level in the technical bilaterals, and at a higher policy level in the CCA. He noted that he would meet with COA the following day where he would discuss the issue further. (Note: The Deputy Minister of Agriculture LEE Jen-chyuan confirmed that COA agreed to include sanitary/phytosanitary issues into the CCA and welcomed participation by the Department of Health. Details of this meeting reported septel. End note) MOU on Transshipment of Textiles -------------- ¶16. AUSTR Stratford stated that the MOU on Textile Transshipment was in the final interagency clearance process and he expected that it would be released quickly. The IPR Dialogue -------------- ¶17. Highlighting the importance of our IPR dialogue, Stratford noted that earlier that day he had met with the Taiwan Intellectual Property Office and had reviewed the status of several important pieces of pending IPR legislation. He asked the Board of Foreign Trade and the Ministry of Economic Affairs to actively support this legislation which covers regulation of Peer-to-peer file sharing, Internet Service Provider liability, and the creation of an intellectual property court. ¶18. He noted industry concerns that the ISP legislation was still too vague on take down provisions. The US recommended that details be spelled out in the law. Regarding the IP court legislation, we were pleased with the progress in this area, but since the law envisioned criminal cases to appear before district courts, the U.S. hoped for training and resources to be allocated to prosecutors and judges at the district level that will improve their capacity for handling IPR cases. ¶19. Stratford also noted that he had called on the Minister of Education to press the Ministry to take more aggressive action to deal with IPR protection on TANet and illegal textbook photo-copying. Pharmaceuticals -------------- ¶20. Turning to the pharmaceutical and drug pricing issue, Stratford noted that he would call on the Vice Minister of Health the following day and hoped to move ahead with establishing working groups to tackle some of the long term reform goals that the U.S. and Taiwan had talked about for some time. Director General Huang noted that the new president of Bureau of National Health Insurance was starting work that very day and was a former classmate. Individual Cases -------------- ¶21. Commencing a review of some specific trade-related cases, Stratford thanked the BOFT for it's handling of S.C. Johnson's long standing request to lift the ban on insecticide imports from China. After the issue was raised by DAUSTR Altbach in August (REFTEL),the TAIPEI 00000134 004 OF 004 ban was lifted, and the company was able source its Raid product from its regional production facility in China. ¶22. Stratford asked that the BOFT also lift the ban on blood glucose meters produced in China. U.S. firms were complaining that as more and more medical device production is shifted to China, the Taiwan ban on China-produced medical devices will have a greater effect on U.S. firms. ¶23. Stratford then turned his attention to the Tyco customs case, which also had been raised by DAUSTR Altbach during his August visit (REFTEL). He encouraged Taiwan to find a way to settle the case with Tyco and noted that the company was planning to file a WTO 301 petition if the case was not settled. Tyco had already started to build support for its stance in Congress and one member of congress had already written to TECRO asking for resolution of the case. Huang argued that since the Tyco case was already in the Taiwan court system that it would be difficult for the MOEA to intervene. In the past MOEA had been criticized in the court for supposed intervention. DAUSTR Altbach rejoined that the case would be much more difficult for Taiwan to deal with if it became a WTO case, as well as becoming very much a matter of public record. Altbach noted that Tyco was interested in settling the case and hoped that Taiwan Customs would find a way to do so. Chiropractors -------------- ¶24. Stratford also raised the issue of market access for U.S.-qualified chiropractors. It appeared, he said, that restrictions are based on protectionism, not due to concerns about medical care. He urged the BOFT to do what it could to look into the issue and resolve the problem. "Arresting them all" is not the way to do deal with the issue, argued Stratford. Comment -------------- ¶25. Clearly the decision on the GPA does not rest with the BOFT, but as our primary interlocutor on trade issues was well-prepared to discuss the list of TIFA items for action. Taiwan remains actively engaged in the TIFA process and expects to make progress in a number of areas. AIT will follow-up with BOFT next month on status of a non-paper with comments on the model investment agreement. Taiwan is waiting for our next move on the tax agreement and would like a copy of a model agreement for their preliminary review. AIT will also continue to push the long term IPR and pharmaceutical issues. YOUNG