Legal Thoughts between the East and the West in the Multilevel Legal Order

In this globalized world, the interaction and the mutual influences between the East and the West in their legal systems and practices have been immense. There are even convergences of different legal regimes in many fields of law. However, it is also a fact that diverse legal practices and approaches exist. The diversities in legal systems and practices have their social, political, and philosophical backgrounds. They are not necessarily negative elements in the contemporary legal order. Identifying these diversities and addressing the interactions and mutual influences between different regimes should be valuable not only in their mutual enrichment but also in the enhancement of possible and desirable coordination between legal systems. The discussions in this volume cover different levels of legal order, including domestic, regional, and multilateral levels, so that the East/Asia-West interaction can be more clearly and comprehensively analyzed.

Professor Herbert Ma has always been the person to call on for Americans in Taiwan seeking to learn about China’s legal systems. His informal and low-key manner and his knowledge and zest for the study of comparative law and jurisprudence are widely admired. Herbert is unusually good at listening as well as speaking and is tolerant of various views. He is a wise person and is appreciated for his calm and open-minded perspective. When Taiwan was still in its authoritarian years in the 1960s and 1970s, Herbert played a prominent role on the NTU law faculty, trying in his patient way to inject democratic ideals into the gradually evolving local legal system through teaching comparative law and legal philosophy to the very able students who were destined to staff Taiwan’s legislature, courts, prosecutors’ offices, judicial bureaus, law firms, and law schools and to participate in its remarkable constitutional and legal transformation. Through his teaching, scholarship, and government service, Herbert has proved to be a very positive influence in the development of democracy, the rule of law, and human rights in post-World War II Taiwan.

For nearly a millennium, private law was primary in the West. By the mid-twentieth century, Western private law had become virtually universal—an apparent triumph of Western influence. By then, however, regulatory and criminal law, core features of law in the world’s largest and oldest nation-state—China—had replaced private law at least in the volume of rules and cases. Has Western law triumphed after all? Or has, instead, the world of law in the twenty-first century more appropriately viewed as the ultimate “triumph” of the world’s oldest and most enduring legal tradition? If so, perhaps, the West has something to learn from the East, particularly the success of the contemporary Japanese criminal justice system in its avoidance incarceration and other retributive sanctions by distinguishing condemnation of the crime with correction and reintegration of the criminal.

This chapter will argue for the importance of Taiwan as a case study for research on relationships between law and economic and political development. The pioneering work of Professor Ma and others about law in Taiwan should be developed and expanded so that scholars around the world can incorporate Taiwan’s experience into more general theorizing about legal systems and economic and political change. Taiwan’s legal system has been relevant to both Taiwan’s outstanding record of economic development and to its successful transition to democracy, yet the role of law and legal institutions in these two markers of Taiwan’s development has been understudied in the global law and development literature. This is a serious shortcoming for the scholarly field, however, as Taiwan’s successes have been too conspicuous, and are too well established, to be ignored. This chapter will seek to address that shortcoming by surveying various claims or assumptions in the field of law and development and examining them in light of Taiwan’s experience. Much of the focus will be on areas of law that are directly related to economic development, but the chapter will also examine the role of law and legal institutions in Taiwan’s democratization. The conclusions that this chapter draws should be helpful not only to scholars but also to governments or international institutions engaging in legal reform projects in developing countries of today.

Behind the rise of Asia lie divergent sociopolitical context and route of the transformation. Not surprisingly, many transformative Asian states confront politically charged issues in the constitutional actuality, many of those demand judicial resolution. Where and how the East Asian courts resort to the political question principle in handling these highly contentious issues is the aim of this chapter. This chapter investigates cases along the line in Taiwan, Japan, and the Philippines, based on a four-model analysis, namely, the “hot potato,” the “rubber stamp,” the “active legalism,” and the “social dialogue” models. It finds that the targeted East Asian courts mainly adopt the “hot potato” and the “rubber stamp” models. With political instability and confrontations, many Asian states confront legitimacy and capacity challenges, and the courts are often involved one way or the other. This article finds that Asian courts evaluate the legitimacy of mechanism and the political context in applying political question principle.

Although the concept of “rights” has been discussed in numerous books and articles, a case study of taxpayer’s rights in Taiwan reveals insights into the evolution of the concept of “rights” pertaining to the relationship between state and society. In some issue areas, the realization of rights requires the state to abstain from interfering with society. In other issue areas, including taxpayer’s rights, the realization of rights requires the state to build a fair and sophisticated legal system, one that enables the successful assertion of rights. Through discussing the taxpayer’s rights in contemporary Taiwan, this chapter demonstrates how the idea of “rights” in a jurisdiction in the “East” has been influenced by ideas prominent in the “West.” Tax cases in Taiwan belong to the category of administrative litigation and, therefore, have been exclusively adjudicated by the administrative courts. Before entering the judicial system, tax cases first have to go through a Petitions and Appeals Committee. Only when this committee decides against the taxpayer may he or she bring the case to the judicial system. A tax case may also be brought before the Constitutional Court if a constitutional law issue is involved. Through a case study of the taxpayer’s rights in Taiwan, this article seeks to explore the possibility of continued evolution of these rights and, therefore, the problems of earlier generalizations.

The writing and rewriting of constitutions are often inspired or influenced by comparative constitutional sources. The Republic of China (ROC) Constitution has been deemed as strongly influenced by comparative constitutional sources such as the US Federal Constitution, the Constitution of the Empire of Japan (Meiji Constitution), and the Reich Constitution of 11 August 1919 (Weimar Constitution). However, in what ways these foreign constitutional sources have exerted influences upon the domestic discourse of constitutional writing remains unclear. This chapter is aimed at understanding such comparative constitutional influences by closely examining the discourse of constitution drafting and making of the ROC Constitution, which became effective in 1947 and has since been implemented in Taiwan. Having relied on empirical and statistic methods, this chapter finds that comparative constitutional discourse was vital in the drafting and making of the ROC Constitution, and more importantly, the studying abroad experiences of constitutional drafters may have been pivotal to their engagement in the comparative constitutional discourse. Inspired by the comparative discourse in constitution making, subsequent constitutional interpretations by Taiwan’s Constitutional Court have engaged abundantly in comparative discourse, notwithstanding the fact that the Constitutional Court has not indicated precise sources of those foreign influences. Leading constitutional scholars, however, have not been shy away from the acknowledgment of those inspiring foreign sources.

Since the 1980s, both Hong Kong and Taiwan have undergone dramatic constitutional changes, including the remaking of the constitutional order and democratisation of the political institutions. Both Hong Kong and Taiwan are now open and pluralistic societies that respect human rights and the rule of law and practise constitutional government. In both Hong Kong and Taiwan, there is a vibrant civil society and a free press and members of the public who are vigilant of their rights. Yet both Hong Kong and Taiwan today live in the shadow of Communist Mainland China, conceived of by considerable numbers of Hong Kong people and of Taiwan people as “the Other”. It is precisely the problems of how the people of Hong Kong and Taiwan should position themselves towards this Other and of how this Other would view Hong Kong and Taiwan that present the greatest challenge for the people of Hong Kong and Taiwan in further developing their respective constitutional orders.

Modernisation has become China’s manifest prospect for the past 170 years, whereby the Imperial Court stabilised its reign and both the Nationalists and the Communists engaged in revolutions. Despite that either the failure or dissatisfaction of modernisation could trigger a new revolution in the twentieth century, China’s modernisation is not completely successful even until today, and the most crucial factor lies in China’s poor social condition. Transitional constitutionalism was promoted by both the Nationalists and the Communists. Its application of transitional constitutionalism not only provides a possible method for China’s modernisation but also constitutes a breeding ground for autocracy. The Nationalist Party was the pioneer of China’s transitional constitutionalism. The Nationalist Party aimed at China’s constitutional democracy, by constructing a ‘babysitting’ autocracy within a limited period of time, training the Chinese people to get used to democracy. The Communist Party applies the transitional constitutionalism differently. Since 1949, it has given diverse reasons of applying transitional constitutionalism: the reason of application is floating, but the purpose of application is one. This chapter will analyse the different patterns of applying transitional constitutionalism between the Nationalists and the Communists via constitutional legal-political doctrinal analysis along with legal historical and social studies.

From 1975 till 1977, the author witnessed as a student officially dispatched by the Swiss government at Beijing University how the principle of the presumption of innocence was neglected in the People’s Republic of China (PRC). In 1996, this principle was finally inscribed into the Criminal Procedure Law of the PRC. However, in recent years, it seems to the author that due to legal ignorance or to political reasons, in the West and even on a global level, the principle of the presumption of innocence has sometimes fallen into oblivion. It seems to the author as if the atmosphere of the Chinese “cultural revolution” is spreading over the world.

Although a general term used frequently in ordinary language, as well as legal and philosophical discourses, privacy remains an elusive notion. In modern legal discussions, it has been argued that privacy is an integral part of intimacy and autonomy, and goes to the essence of individual dignity, and thus ought to be protected through the creation of a sphere free from outside interference. This normative account of privacy, as Warren and Brandeis proposed in the late nineteenth century, provides moral grounds for the later development of privacy protection in American law. Such recognition of the private sphere, based on the public and private distinction, can be traced up to Aristotle’s distinction between the polis and oikos, which refers to a private domain consisting of the family household that can be thought separate from public interference. However, the question arises: is there an equivalent notion of privacy in the very different context of Chinese culture, and if so, to what extent is it valued and preserved? This chapter discusses the notion of privacy by digging into its rich genealogical origins in ancient Chinese and Western thoughts. This approach is intended to offer a comparative perspective for the analysis and re-examination of notions of privacy, and to further explore the consequential implications of the public/private binary in the later legal developments when privacy came gradually to be recognised not only as a value to be respected, but in modern legal discourses as a right to be protected.

The right to choose is a popular but contested framing of women’s reproductive autonomy. Through an investigation of the dynamic between population policy and maternalism in Taiwan, this chapter reveals how the choice rhetoric empowered challenges to compulsory motherhood under the authoritarian government’s antinatalist policy and how it has been used both to challenge and to enforce pronatalist policy under liberal democracy. It is argued that compulsory motherhood not only has been challenged but also remade and that a break from “choice” is needed to better respond to the rise of a new maternalism which reinforces women’s ideal role as mothers.

In past decades, the right to health has emerged from the margins of human rights discourse to claiming an increasingly central place. Many East Asian countries, including Taiwan, have recognized the right to health for every citizen either in domestic legal framework or through the recognition of international human rights laws. However, instead of creating a significant convergence of domestic legal framework, Taiwan has different perceptions and practices in the right to health protection levels. It is because that Taiwan has emphasized the traditional concerns of sovereignty and noninterference when adopting the right to health paradigm and asserted that human rights standards should differ according to cultural backgrounds. Therefore, even though Taiwan, based upon Chinese culture value, generally believes that the government has obligations to provide citizens with basic needs for healthcare, the preference for a large sphere of government intervention leads to neither a welfare state nor a high priority of individual social rights. In order to develop a thicker understanding of the right to health development in Taiwan, this chapter sets out to explore the phenomenon of the right to health legislation, litigation, and their consequences in Taiwan. This chapter will also investigate how Taiwanese government transplants or delivers the right to health norms in domestic legal system, explore whether there are arbitrary interpretations of the contents of the right to health by Taiwanese government that violate or restrict the right, and examine the ability of the judiciary in Taiwan when advancing the right to health.

China’s increased involvement in global affairs invites consideration of China’s participation in the international legal system. An important dimension of this involves China’s performance on international treaty obligations. Legal performance in respect of treaties involves broader questions around whether local legal practices satisfy expectations embodied in treaty standards. Quite apart from the question of compliance, treaty performance concerns the relationship between treaty-related legal behavior and the normative and operational expectations associated with treaty text and practice. This chapter examines China’s treaty performance in respect of international trade and human rights standards.

This chapter analyzes the evolution of “Western” international law as an intellectual and professional discipline in Republican China. It argues that statism and pragmatism define the major features of the Republic of China’s approach to the reception of international law. These characteristics transformed the law of nations into universally valid normative claims and galvanized China’s intellectual focus from Westphalian sovereignty to the civilized nation concept. By examining the professionalization of international law in modern China, this chapter offers insight into the educational transplantation of the new discipline. The cultivation of China’s first-generation international lawyer contributed to the legal capacity of the Foreign Ministry. Chinese jurists’ participation in international law societies and the Shanghai Mixed Court further strengthened the nation’s legalist approach to diplomacy. Hence, this research provides a valuable case study of twentieth-century international lawmaking in Asia.

The international law of the sea has been a significant area of China’s engagement with an international legal order largely shaped by the West. China’s encounter with the international law of the sea progressed from bad beginnings in the nineteenth and much of the twentieth century, proceeded through a phase of “regime taking” when China engaged the international law of the sea regime largely on the latter’s terms near the end of the twentieth century, and has recently entered a more complicated and less acquiescent phase. The current period, associated with China’s rise as a great power, is marked by PRC positions and behavior that are in tension with status quo rules and norms. China has maintained a stance of ostensible conformity with existing law while launching ambiguous challenges to the status quo. China is not—or, at least, not yet—fully or openly revisionist, and it may become less so if, or as, its agenda shifts in response to its growing power and expanding interests.

This chapter looked at the old debate of relativism and universalism on human rights. The author agreed with Jack Donnelly that radical universalism or radical relativism has gradually lost its charm. Universal human rights have to be always confronted with and situated in regional particularities. The first key divergent part is whether the emphasis should be placed on the universality of human rights or on the particularities of the regional context. The Vienna Declaration and Programme of Action opts for the former, whereas the Bangkok Declaration favors the latter. This fundamental difference has significantly determined and shaped the course of the development of a regional human rights mechanism in the ASEAN context. With the adoption of the ASEAN Charter, an ASEAN human rights mechanism can find its legal basis in this fundamental (constitutional) instrument. Nonetheless, the Charter does not articulate the precise form of an ASEAN human rights body but leaves it to the discretion of national governments. By defining the terms of reference, the ASEAN Member States have effectively downplayed the shape of an ASEAN human rights body and made it more a human rights promotion body than a protection one. Moreover, whereas the ASEAN adopted the ASEAN Human Rights Declaration in 2012, regional particularities prevail over the universality of human rights. So far the ASEAN has traveled; so little it has achieved. The ASEAN human rights discourse is still haunted by regional particularities which jealously guard sovereignty and value the noninterference principle.

The conflict of interest between foreign investor’s entitlement to regulatory stability and a host state’s need to regulate domestic matters through regulatory change has been the core of the fair and equitable treatment (FET) standard. However, under current FET formulations, such as those applied in the US’s and China’s investment treaties, there provides no explicit indication as to investor’s legitimate expectations and host state’s regulatory change. Subject to different positions taken by arbitral tribunals in light of various FET formulations, when regulatory change will trigger a host state’s liability to the investor remains questionable. This may have a real implication for the host state to introduce or amend its regulatory measures to adjust to new changing circumstance. Modeled on the Canada–EU Comprehensive Economic and Trade Agreement (CETA) approach, this chapter suggests that a new provision strengthening the host state’s right to regulate through modification to law in pursuance of public health should be introduced into the FET clause. In effect, major or radical regulatory change of the host state for public health in itself also does not amount to a breach of the FET clause. In this way, the host state’s public health measures would be afforded more flexibilities to meet its own societal needs as the circumstances evolve. As more and more governments around the world make efforts to negotiate investment treaties and join mega-FTA, perhaps it is the right time for draft negotiators to think and redesign an FET clause clearer to the host state’s regulatory right to pursue primary public health through regulatory change.

The linkage between trade and intellectual property rights has long been at the center of controversy since the Agreement on Trade-Related Aspects of Intellectual Property Rights was negotiated and became one of agreements annexed to the Agreement Establishing the World Trade Organization. WTO members have fiercely debated over how to protect indigenous cultural heritage, including biodiversity, traditional knowledge, or traditional cultural expression since the TRIPS Council initiated the review of Article 27.3(b) of the TRIPS Agreement. Despite so, many countries attempt to address this issue through free trade agreements by incorporating relevant provisions in IPR chapter in which goes beyond the TRIPS Agreement requires. While these so-called “WTO-Extra” or “WTO-Plus” provisions seemingly aim to protect indigenous cultural heritage, they are facing plenty of challenges or obstacles to be fully implemented by constituent parties to the FTAs. This chapter will firstly examine these provisions in recent free trade agreements and explore if there are any different approaches taken by Northern or Southern countries in addressing the issue of protecting cultural heritage in their FTAs. This chapter will then discuss potential legal problems surrounding these provisions including the application or interpretation of most-favored-nation clause, the highest international standard provision, and/or disclosure requirement over the origin of traditional knowledge, etc. After a brief analysis of current challenges faced in most bilateral or regional FTAs, this chapter tries to argue that plurilateral trade arrangement like the Trans-Pacific Partnership (TPP) Agreement may be a better opportunity to secure more effective protection of indigenous cultural heritage in the Asia-Pacific region.

In the Western world, there have been quite a number of regional courts with specific or general jurisdictions to resolve regional disputes between States or between individuals and States in the respective regions. In Asia, there are disputes occurred between Asian countries. However, there is a lack of a regional dispute settlement mechanism available for Asian countries to rely on for resolving their disputes. Some Asian countries do not intend to multilateralize their disputes by submitting their regional disputes to a multilateral dispute settlement mechanism. Hence there is a need to create a permanent regional mechanism for the purpose of resolving regional disputes. From the Western experience, a rule-based mechanism should be more effective. But from Asian philosophy, a friendlier mechanism is more practical for the purpose of maintaining harmonious relations. The chapter suggests to establish a permanent mediation mechanism under a new regional treaty to facilitate the voluntary resolution of Asian regional disputes with a certain degree of rule-based feature. This could be a medium-term solution. In the long run, a court-style dispute settlement mechanism should be desirable for the Asian community.

The principle of good faith is fundamental in the law of international trade. This global consensus derives from its origin in European civil law. A fair question to be asked is whether there is also a substantial consensus on its content and operation as it moves away from a European location. Also it should be discussed whether the principle of good faith has a place in contemporary Asian principles of contract law.

Recent decades have witnessed a remarkable increase in the mobility of persons across national borders, as well as an increase in the number of couples formed by nationals of different countries, who may live in a country of which neither is national and acquire property in more than one country. Such couples may face uncertainty regarding the legal rules governing the spouses’ rights in the matrimonial property. The matrimonial property regime may also change following a change of domicile. The problems encountered are due to the fact that states apply different substantive legal rules, as well as different conflict rules, to such property relations. This study, dedicated to Grand Justice Professor Herbert Han-Pao Ma, a great teacher and dear friend, first examines the various matrimonial property regimes provided by law in some European civil law countries, as well as the legal rules governing matrimonial property in England and in Israel (part 2); it then considers, with respect to both the conflict rules designating the law governing matrimonial property and the substantive rules that would be applied in each jurisdiction, respectively, a Swiss-Israeli case (part 3), a Dutch-Israeli case (part 4), and an English-Israeli case (part 5), followed by conclusions (part 6).

Food safety emerged as a key health and safety issue following a series of food scandals in Europe and Taiwan which began in the 1990s. A proper risk assessment has been recognised as an essential element for food safety, and so, the EU acted to establish the European Food Safety Authority (EFSA) pursuant to Regulation 178/2002. This chapter examines EU food control jurisprudence and the EFSA and compares this with corresponding institution in Taiwan. It also offers some critical proposals for reforming Taiwan’s laws to enhance food safety and consumer welfare in general.

The exponential increase of food safety incidents in the past two decades has heightened public criticism and distrust over government regulatory failure worldwide, which has been responded by a proliferation of reforms. Taiwan is no exception to this trend, as numerous food safety scandals have utterly struck the country, generating even more pressure for an expedient, effective, and efficient overhaul. Against such backdrop, the legislature in Taiwan has assumed massive regulatory borrowing. There have been five amendments adopted by the legislature to the Act Governing Food Safety and Sanitation since 2013, each of which addressed different aspects of food safety regulation. In many instances, the amendments directly and unsystematically referred to and borrowed from the regulatory approaches adopted by the United States and the European Union, arguably without adequate consideration of or adaptation to local contexts. This chapter describes this approach as “cocktail therapy” and offers an explanation that the legislature has undertaken such ad hoc regulatory borrowing to save costs and secure legitimacy. Nevertheless, this chapter points out the limit of such regulatory transplant and emphasizes that proper consideration of the local context, including social, economic, political, and cultural factors, is of significant importance in the process of regulatory borrowing. Looking forward, this chapter suggests a constructive next step for the legislative drafter to seriously consider local problems, practices, and needs when learning from a foreign legal model. Only an internationally inspired yet locally adapted regulatory reform can reap benefits from regulatory borrowing as well as reserve a fertile land for regulatory acculturation.

This chapter uses comparative law analysis to examine the systems and processes of post-trading infrastructure – clearing and settlement – in the UK and Taiwan. Its purpose is to identify the differences in the operating models, the governance and the regulatory thinking behind them. Taiwan clearly shows its cautious approach to post-trading infrastructure which is evidenced in its vertical silo system and in its direct and transparency holding system. However, Taiwan does not provide clear legal rules dealing with insolvency risk and settlement finality. It is also not clear why Taiwan does not follow the ‘place of the relevant intermediary approach’ (hereinafter ‘PRIMA’). It is argued that Taiwan can learn from the UK’s non-vertical silo model to increase innovation. Taiwan could also adopt the trust and non-transparency indirect holding system to increase investor protection and settlement finality to increase legal certainty.

East Asia’s well-known “developmental state model” has attracted wide attention in development economics, but its connection to corporate governance in East Asia remains understudied. In this paper, I attempt to establish this connection and envisage an East Asian model of corporate governance based on two primary observations. First, I examine how Corporate East Asia performs corporate governance’s two main functions, i.e., protection and coordination, and observe the state’s heightened protective and coordinated roles therein. Second, I propose a typology of state-firm relationship based on two aspects of state intervention, i.e., channels and purposes, which lays down a foundation for observing the relative position of different states and allows further exploration of the form of intervention taken by East Asian developmental states. Acknowledging that this proposed theory of East Asian corporate governance can be reflected in many corporate issues, I pick independent directors as a touchstone for testing the theory. Based on the above observations, I propose an East Asian version of corporate governance theory rooted in the developmental state model in this region, which should open a door for future East Asian studies in comparative corporate governance.

At the beginning, China was reluctant to establish a patent law system. Patent is a concept of Western origin, and Chinese patent law has been developed under foreign pressure. Reform and development with respect to patent rights and enforcement nevertheless have become an important area to attract foreign investment. Over time, the country has realized that the utilitarian nature of this private right suits its development needs and it now fully embraces the concept. Patent law has become one of the main targets of the government in its attempt to establish a modern legal system. It has also become a symbol of the country’s technological advancement. Patent rules in China are now very similar to those of its Western counterparts. The enforcement mechanism has been reformed with a view to enhancing patent rights. The administrative remedy of patent infringement is a unique feature in China’s patent enforcement system, which has its drawbacks. By contrast, the establishment of Intellectual Property Courts is a clear sign of the development of a more autonomous, independent, and professional judiciary in the area of patent law. The most watched area with regard to the patent system at this moment is the government’s application of antitrust law in the patent licensing practices, especially in the field of standard and essential patents (SEPs). The trend of the cases in this field suggests that China is very active in enforcing its antitrust laws. On the one hand, China is enhancing the protection of patent rights when domestic patent holders are gaining ground in terms of the quality of their patents. On the other hand, China is using its antitrust law to limit the power of foreign SEP holders. From this perspective, the Chinese government is using antitrust laws to achieve what it cannot do by patent law. Under the TRIPS Agreement, there is no room for discriminatory treatment in patent law. Through the aggressive enforcement of antitrust laws, however, the Chinese authorities can limit the patent rights of foreign holders while at the same time empowering domestic patentees. Legal rules in China in the field of patent law are an interesting case study. China accepted patent law from the West and also created many unique responses along the way. Many of these unique responses fulfilled their temporal missions and gradually became less important. Now China is using another Western legal concept, antitrust law, to create the optimal patent law environment for its needs.

The clinical legal education movement began in earnest in the United States in the 1960s in response to student demands that their legal education serve marginalized communities. As clinical legal education became a mainstream element of American legal education, the focus moved from its service-based roots to an emphasis on education, particularly practical lawyering skills and professional values for lawyers. Law clinics in the United States have developed a standard model that works to achieve these objectives within the framework of the American legal system. The global spread of clinical legal education originated in the United States and has led to clinical programs around the world. The most successful exports are tailored to the local context. It is the concept of clinical legal education that travels best, not any particular model. Taiwan’s legal educators have resisted clinical education for a very long time, and there are several practical obstacles to implementing an American-style clinic. However, some existing models that have been created within the existing system would require only slight modification to be viable options for clinical education in Taiwan. The inchoate clinical movement in Taiwan will continue moving forward by developing models that, while reflecting the core objectives and concepts of the global clinical legal education movement, are absolutely Taiwanese.

Arbitration, as well as mediation, is one of the conventional yet modern means for resolving civil and commercial disputes in Asia, where Confucianism has held sway for thousands of years. Confucianism has exerted a pervasive influence over the Chinese traditions of informal settlement of private disputes by establishing norms of conduct through Guanxi (關係 relationships or personal connections) and social hierarchies. Zhongcai (仲裁) has been adopted as arbitration’s modern name in Chinese, and the more conventional term is Gongduan (剬斷). Gongduan (剬斷) and arbitration are alike mostly because they are both means to resolve civil disputes, while fundamental distinctions still exist such as the requirement of consent of the parties and the scope of the subject matter to be resolved. Although the Western idea of international arbitration has taken root in Chinese societies, modern arbitration is still influenced by the tradition, making arbitrators act as mediators and Guanxi (關係) important in appointment of arbitrators.

Herbert H.P. Ma has written eloquently and extensively about the interrelationships between traditional Chinese cultural values and modern Chinese legal rules and practices. In the contemporary world, one area where the mutual influence of culture and law is most clearly on display is international commercial arbitration. This chapter explores the philosophical, cultural, socioeconomic, and structural roots of international arbitration as it is conducted in culturally Chinese jurisdictions and by culturally Chinese parties and arbitrators. Is traditional Chinese culture persistent? Or is its impact swamped by differences in legal systems and the economic imperatives of modern commercial dispute resolution? The chapter concludes that while standard practices in international arbitration do seem to be determined more by structural and legal factors than by cultural ones, Chinese dispute resolution culture will nevertheless be influential in shaping the evolution of global international arbitration standards.

There is a considerable amount of literature dealing with arbitration in Asia, the Middle East, South East Asia, the Americas, the Arab World, Europe, as well as individual jurisdictions. After taking a closer look at the contents of these titles, one often discovers that what distinguishes them is often very subtle – if visible at all. Moreover, what is astonishing is that in real arbitration practice, there is often a global mix of national origin, legal qualification, and place of practice of international practitioners. Thus, authors who profess to speak for arbitration in the “East” often have a “Western” legal or cultural background and vice versa, i.e., “Western” practitioners are often significantly influenced by international arbitration in the “East.” This trend will most probably continue in the future. This chapter discusses to what extent it is still possible or has ever been possible to strictly distinguish between international arbitration in the “East” and the “West.” The author will conclude that in fact such differences are, at least in international arbitration, not significant anymore and that increasingly, any such remaining differences are being lost in globalization.

The ultimate aim of mediation is to reach a mutually beneficial settlement between the disputants. This would require good faith in cooperation from both disputants. This chapter launches a jurisprudential investigation into different types of mediation in Taiwan and England against Confucianism, legalism, naturalism and positivism. The paper concludes that voluntary mediation and compulsory mediation share a different basis and hence require different jurisprudential interpretations. Furthermore, an in-depth analysis on good faith in cooperation is also made to stress its importance in a successful mediation.

Courts worldwide may refuse to enforce arbitral awards if such enforcement would be contrary to the public policy of their countries. This is known as “the public policy exception” to the enforcement of arbitral awards. It is enshrined in the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 and UNCITRAL Model Law on International Commercial Arbitration 1985, which are two of the most prominent international instruments concerning arbitration. The International Law Association’s Resolution on Public Policy as a Bar to Enforcement of International Arbitral Awards 2002 endorses a narrow approach to the public policy exception, such as non-enforcement only in exceptional circumstances of public policy violation. Such a narrow approach arises from the New York Convention’s pro-enforcement policy of upholding the finality and enforceability of arbitral awards. Yet judicial inconsistency and unpredictability in applying the public policy exception persist. Public policy remains likened to an “unruly horse” which may lead us from sound law (Richardson v Mellish [1824–1834] All ER 258, 266.). This chapter explores some remaining controversies and complexities in applying the public policy exception in selected Western and Eastern countries. By examining the mutual influence between these countries, this chapter makes some recommendations on when and how the courts may swim against the tide by departing from the currently prevailing narrow approach to the public policy exception. For instance, such departure may be appropriate where the arbitral award’s enforcement would cause or condone injustice so as to undermine the integrity of the arbitration system. The unruly horse of public policy and its application can, and must, “come down on the side of justice” (Enderby Town Football Club Ltd v The Football Association Ltd [1971] Ch. 591, 607).