Interpretation and Application of the New York Convention in Taiwan

“Commercial Arbitration Act” (Shang-wu Zhong-cai Tiao-li), Presidential Office Gazette (Zong-tong-fu Gong-bao), no. 1194, pp 1-3 (1961).

Article 1 of Commercial Arbitration Act 1961 states: “With regard to a dispute arising from commercial activities at present or in the future, the parties may enter into an arbitration agreement in accordance with the present Act, designating a single arbitrator or an odd number of arbitrators to arbitrate such dispute. The arbitration agreement shall be in writing. ”

See General Comment in the Bill for Revising the Commercial Arbitration Act (Shang-wu Zhong-cai Tiao-li), Legislative Yuan Gazette (Li-fa-yuan Gong-bao), vol 71, no.41, p 39 (1982).

“Commercial Arbitration Act” (Shang-wu Zhong-cai Tiao-li), Presidential Office Gazette (Zong-tong-fu Gong-bao), no. 3993, pp7-10 (1982).

See Explanation no. 9, Legislative Yuan Gazette (Li-fa-yuan Gong-bao), vol 71, no.41, p 41 (1982). Article I (1) of New York Convention provides: “This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought.”

Wu, 15.

“Arbitration Act” (Zhong-cai Fa), 6224 Presidential Office Gazette (Zong-tong-fu Gong-bao), no. 6224, pp. 40-50 (1998), was passed on May 29, 1998 by the Legislature and became fully effective on December 24, 1998.

Article 33 of the Arbitration Act 1998 states: “To the extent that a decision on the dispute may be satisfactorily obtained, the arbitral tribunal shall declare the conclusion of the hearing and within ten days thereafter, issue an arbitral award addressing the claims and issues raised by the parties.…An arbitral award shall contain the following items: 1.Names and residence or domicile of the individual parties. For a party that is a corporate entity or another type of organization or institution, then its name(s), administrative office(s), principal office(s)or business office(s) [address]; 2.Names and domiciles or residences of the statutory agents or representatives, if any, of the parties; 3.Names, nationalities and residences or domiciles of the interpreters, if any; 4.The main text of the decision; 5.The relevant facts and reasons for the arbitral award, unless the parties have agreed that no reasons shall be stated; and 6.The date and place of the arbitral award.” “The original copy of the award shall be signed by the arbitrator(s) who deliberated on the award. If an arbitrator refuses to or cannot sign the award for any reason, the arbitrator(s) who do sign the award shall state the reason for the missing signature(s).”

Article 37 of the Arbitration Act 1998 states: “The award shall be binding on the parties and have the same force as a final judgment of a court.…An award may not be enforceable unless a competent court has, on application of a concerned party, granted an enforcement order. However, the arbitral award may be enforced without having an enforcement order granted by a competent court if the contending parties agreed so to do in writing and the arbitral award concerns any of the following subject-matters: 1. Payment of a specified sum of money or certain amount of fungible things or valuable securities; or 2. Delivery of a specified movable property.” “The previous paragraph is binding not only on the parties but also on the following persons with respect to the arbitration: 1. Successors of the parties after the commencement of the arbitration, or those who have taken possession of the contested property for a party or its successors; and 2. Any entity, on whose behalf a party enters into an arbitration proceeding; the successors of said entity after the commencement of arbitration; and, those who have taken possession of the contested property for said entity or its successors.”

Explanation to Article 30 of Commercial Arbitration (Amendment) Act 1982, Legislative Yuan Gazette (Li-fa-yuan Gong-bao), vol. 71, no.41, p. 61 (1982).

See Supreme Court’s Judgment No. Tai-Shang 1264 of 1987, Decision No. Tai-Kang 174 of 1987, and Decision No. Tai-Kang 401 of 1987.

Explanation to Article 47 of Arbitration Act 1998, Legislative Yuan Gazette (Li-fa-yuan Gong-bao), vol 87, no. 31, p 266 (1998).

Article I(1) of the New York Convention states: “This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought.” The first sentence signifies that a “foreign arbitral award” is an arbitral award made in a foreign country. If a non-foreign arbitral award is not considered domestic under national law, it can be treated in the same way as a foreign one. If Taiwan can accede to the Convention, it is possible to apply its provisions to arbitral awards made in the Mainland China, Hong Kong and Macao even though they are not considered as domestic or Taiwanese arbitral awards.

Explanation to Article 47 of Arbitration Act 1998 and its original Bill submitted by the Executive Yuan, Legislative Yuan Gazette (Li-fa-yuan Gong-bao), vol 87, no. 31, p. 309 (1998).

“Act Governing Relations between the People of the Taiwan Area and the Mainland Area” (Tai-wan Di-qu yu Da-lu Di-qu Ren-min Guan-xi Tiao-li), Presidential Office Gazette (Zong-tong-fu Gong-bao), No. 5601, pp. 1-10 (1993).

“Act Governing the Relations with Hong Kong and Macao” (Xiang-gang Au-men Guan-xi Tiao-li), Presidential Office Gazette (Zong-tong-fu Gong-bao), No. 6146, pp. 11-19 (1997).

Wu, 185-186.

Article 39.1 of the Arbitration Act 1998.

In Taipei District Court Decision No. Zhong-Sheng 17 of 1993, an arbitral award rendered in Malaysia was refused recognizing due to the position that Malaysian courts did not recognize and enforce Taiwanese arbitral awards. Chinese Arbitration Association (ed.), Selected Court Decisions and Judgments on Arbitration (Zhong-cai Shi-jian Fa-yuan Cai-pan Xuan-ji), vol. 2, pp. 595-597 (1997).

Article 10 of Taiwanese PIL Act 2010 provides: “(1) The capacity of a person to act is governed by his/her national law. (2) The capacity of a person to act is not lost or limited because of a change of nationality by him/her. (3) Where an alien of no or limited capacity to act under his/her national law is of full capacity to act under the law of the Republic of China, he/she is deemed to be of full capacity to act with respect to his juridical acts undertaken within the Republic of China. (4) The preceding paragraph does not apply to a juridical act governed by family law or law of succession or to a juridical act regarding immovable property located in a foreign State.”

Article 20 of Taiwanese PIL Act 2010 provides: “(1) The applicable law regarding the formation and effect of a juridical act which results in a relationship of obligation is determined by the intention of the parties. (2) Where there is no express intention of the parties or their express intention is void under the applicable law determined by them, the formation and effect of the juridical act are governed by the law which is most closely connected with the juridical act. (3) Where among the obligations resulting from a juridical act there is a characteristic one, the law of the domicile of the party obligated under the characteristic obligation at the time he /she undertook the juridical act is presumed to be the most closely connected law. However, where a juridical act concerns immovable property, the law of the place where the immovable property is located is presumed to be the most closely connected law.”

The six stipulated situations are: (1) the arbitration agreement is invalid as a result of the incapacity of a party according to the law applicable to such party; (2) the arbitration agreement is null and void according to the law chosen to govern the agreement or, in the absence of choice of law, the law of the country where the arbitral award was made; (3) a party is not given proper notice of the appointment of an arbitrator or of any other matter required in the arbitral proceedings, or any other situations which give rise to lack of due process; (4) the arbitral award is not relevant to the subject matter of the dispute covered by the arbitral agreement or exceeds the scope of the arbitration agreement, unless the offending portion can be severed from and will not affect the remainder of the arbitral award; (5) the composition of the arbitral tribunal or the arbitration procedure contravenes the arbitration agreement or, in the absence of an arbitration agreement, the law of the place of the arbitration; and (6) the arbitral award is not yet binding upon the parties or has been suspended or revoked by a competent court.

Article 48 of the Arbitration Act states: “To obtain recognition of a foreign arbitral award, an application shall be submitted to the court and accompanied by the following documents: 1. the original arbitral award or an authenticated copy; 2. the original arbitration agreement or an authenticated copy; 3. the full text of the foreign arbitration law and regulation, the rules of the foreign arbitration institution or the rules of the international arbitration institution which applied to the foreign arbitral award.” “If the documents in the preceding paragraph are made in a foreign language, a copy of the Chinese translation of the same shall be submitted.” “The word ‘authenticated’ mentioned in items 1 and 2 of Paragraph 1 herein means the authentication made by the embassies, consulates, representative offices, liaison offices or any other organizations authorized by the government of the Republic of China.” “Copies of the application mentioned in Paragraph 1 herein shall be made corresponding to the number of respondents and submitted to the court which shall deliver those copies to the respondents.”

Yang et al, 379.

Chinese Arbitration Association (ed), Selected Court Decisions and Judgments on Arbitration (Zhong-cai Shi-jian Fa-yuan Cai-pan Xuan-ji), vol. 2, pp. 587-591 (1997).

Yang et al, 386.

Liu and Chen, 723.

Yang et al, 364.

Wu, 51.