Abstract
The effectiveness of jurisdictional agreements was envisaged and recognized in the Taiwanese Code of Civil Procedure. Its provisions apply to both optional and exclusive choice of court agreements, despite the fact that they are basically designed for the latter. This chapter addresses the legislative development and judicial practice on such agreements. Section 1 explores the legislation on jurisdictional agreements with emphasis on their limitative requirements and adjustment to cope with modern communications technology. Section 2 focuses on judicial practice about optional choice of court agreements. The Supreme Court’s Decision # Tai-Kang 259 of 2012 plays a significant role in illustrating the methodology adopted to fill the gap of rules of international jurisdiction. The fact that Taiwanese courts prefer to characterize foreign nominated courts’ jurisdiction as optional reflects Taiwan’s judicial protectionism due to its isolation in the international arena. The forum law is applicable to the effects of the jurisdictional agreements and justifies the different treatment of optional and exclusive choice of court agreements. Section 3 deals with asymmetrical choice of court agreements. The test of their validity is whether a weaker party is unfairly impaired, rather than whether the bargaining powers are imbalanced and their standing to sue is asymmetrical. Section 4 concludes with some observations about future developments.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Taiwan bears the “Republic of China” (henceforth ROC) as its official name and coexists with the “People’s Republic of China” on the Chinese Mainland. The geographic territory under its effective jurisdiction includes islands of Taiwan (formerly known as Formosa), Penghu, Kinmen, Matsu and their surrounding islands, as well as two major islands of Dongsha Island and Nansha Island.
- 2.
Civil Code (Min- Fa), adopted in 1929 (174 Guo-Min-Zheng-Fu-Gong-Bao 2) and last revised in 2015 (7197 POG 27).
- 3.
- 4.
Arbitration Act (Zhong-Cai-Fa), adopted in 1998 (6224 POG 40) and last revised in 2015 (7222 POG 31) to replace the Commercial Arbitration Act (Shang-Wu-Zhong-Cai-Tiao-Li) promulgated in 1961 (1194 POG 1).
- 5.
Taiwanese Code of Civil Procedure (Min-Shi-Su-Song-Fa), adopted in 1930 (659 Guo-Min-Zheng-Fu-Gong-Bao 15) and last revised in 2018 (7638 POG 38).
- 6.
An exception is provided in Article 52 Sec 2 of the Family Matters Act 2012 (adopted in 2012, 7012 POG 35, and last revised in 2015, 7226 POG 106). Sec 1 provides: “With regard to matters concerning determination of the invalidity of a marriage, annulment of a marriage, divorce, or determination of the existence or non-existence of a marriage, the jurisdiction to hear the proceedings exclusively belongs to the courts listed in the following: 1. the court for the place of the domicile of the husband and wife; 2. the court for the place of the joint habitual residence of the husband and wife; or 3. the court for the place of the habitual residence of the husband or the wife from whom the transactions or occurrences that gives rise to the claim take place.” Sec 2 provides: “Notwithstanding the provisions in the preceding paragraph, the parties may, by a written agreement, agree on the court that shall hear the proceedings.” It is argued that the “exclusive” jurisdiction prescribed in Sec 1 is not a genuine exclusive jurisdiction in nature, since some courts, instead of only one court, possess statutory jurisdiction under it. The choice of court agreement is required to be concluded, instead of evidenced, in writing.
- 7.
See Chen (2017c), pp. 945–962.
- 8.
Commercial Arbitration Act (Shang-Wu-Zhong-Cai-Tiao-Li) promulgated in 1961 (1194 POG 1).
- 9.
Arbitration Act (Zhong-Cai-Fa), adopted in 1998 (6224 POG 40) and last revised in 2015 (7222 POG 31).
- 10.
Article 3 of the Arbitration Act provides that “The validity of an arbitration clause which forms part of a principal contract between the parties may be determined separately from the rest of the principal contract. A decision that the contract is nullified, invalid, revoked, rescinded or terminated shall not affect the validity of the arbitration clause.”
- 11.
Chen (2017a), p. 2559.
- 12.
- 13.
Article 1 of the PILA states that “Civil matters involving foreign elements are governed, in the absence of any provisions in this Act, by the provisions of other statutes; in the absence of applicable provisions in other statutes, by the principles of law.”
- 14.
- 15.
Article 20 of the PIL Act provides that “(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.”
- 16.
Chen (2015), pp. 30–32.
- 17.
Article 25 of the Taiwanese CCP provides that “A court obtains jurisdiction over an action where the defendant proceeds orally on the merits without contesting lack of jurisdiction.”
- 18.
Article 436-9 of the Taiwanese CCP states that “In cases where a party to a Small-Claim Proceeding is a juridical person or a merchant and it has, by the standard contract that it uses, designated either the place of performance of obligations or a court of the first instance to exercise jurisdiction, the provisions of Article 12 or Article 24 shall not apply, except when both parties to such action are legal persons or merchants.”
- 19.
Additional Articles of the ROC Constitution (Zhong-Hua-Min-Guo-Xian-Fa Zeng-Xiu-Tiao-Wen) of 1991, 5403 POG 2 (1991).
- 20.
Act on 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), adopted in 1992 (5601 POG 1) and last revised in 2015 (7192 POG 11).
- 21.
Act Governing Relations with Hong Kong and Macau (Xiang-Gang-Ao-Men-Guan-Xi Tiao-Li), adopted in 1997 (6146 POG 14) and last revised in 2017 (7340 POG 4).
- 22.
See Tu and Huang, in this collection, for further information on the law of the PRC.
- 23.
In Supreme Court’s Decision # Tai-Kang 165 of 2005, a Japanese company and a Taiwanese company agreed in their “contract of development, manufacture and sales” that “all the litigations related to this contract or litigations of disputes incidental to it shall be subject to the exclusive jurisdiction of Osaka District Court in Japan for their first instance trials,” and that “Japanese Law is the law applicable to this contract and its interpretation.” The Japanese company sued the Taiwanese company for infringement of copyright after the contract was terminated. The Supreme Court ruled in this case that the problem of jurisdiction should be decided separately because the case at issue may stand beyond the scope of that contract. See Chen (2014b), p. 29.
References
Chen R-C (2014a) General provisions in the Taiwanese private international law enactment 2010. In: Basedow J, Pissler KB (eds) Private international law in Mainland China, Taiwan and Europe. Mohr Siebeck, Tübingen, pp 77–80
Chen R-C (2014b) Jurisdiction, choice of law and the recognition of foreign judgments in Taiwan. In: Basedow J, Pissler KB (eds) Private international law in Mainland China, Taiwan and Europe. Mohr Siebeck, Tübingen, pp 17–38
Chen R-C (2014c) Taiwanese PIL Act 2010. In: Basedow J, Pissler KB (eds) Private international law in Mainland China, Taiwan and Europe. Mohr Siebeck, Tübingen, pp 453–465
Chen R-C (2015) Private international law in practice: analytical study on civil cases with foreign elements (Guo-ji Si-fa Shi-yong) (in Chinese). Wu-nan Publisher, Taipei
Chen R-C (2017a) Taiwan. In: Basedow J, Rühl G, Ferrari F, Asensio PM (eds) Encyclopedia of private international law, vol 3. Edward Elgar, Cheltenham, pp 2559–2569
Chen R-C (2017b) Act governing the choice of law in civil matters involving foreign elements. In: Basedow J, Rühl G, Ferrari F, Asensio PM (eds) Encyclopedia of private international law, vol 4. Edward Elgar, Cheltenham, pp 3880–3889
Chen R-C (2017c) Interpretation and application of the New York Convention in Taiwan. In: Bermann GA (ed) Recognition and enforcement of foreign arbitral awards – the interpretation and application of the New York Convention by National Courts. Springer, Cham, pp 945–962
Liu T-C, Chen R-C (2018) Liu and Chen on private international law (Guo-ji Si-fa Lun) (in Chinese), 6th edn. San-Ming, Taipei
Legislation
Act Governing Relations with Hong Kong and Macau (Xiang-Gang-Ao-Men-Guan-Xi-Tiao-Li), adopted in 1997, 6146 Presidential Office Gazette (Zong-tong-fu Gong-bao) 14 (1997), and last revised in 2017, 7340 Presidential Office Gazette (Zong-tong-fu Gong-bao) 4 (2017)
Act Governing the Choice of Law in Civil Matters Involving Foreign Elements (She-Wai-Min-Shi-Fa-Lü-Shi-Yong-Fa), adopted in 1953, 403 Presidential Office Gazette (Zong-tong-fu Gong-bao) 1 (1953), and last revised in 2010, 6923 Presidential Office Gazette (Zong-tong-fu Gong-bao) 24 (2010)
Act on 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), adopted in 1992, 5601 Presidential Office Gazette (Zong-tong-fu Gong-bao) 1 (1992), and last revised in 2015, 7192 Presidential Office Gazette (Zong-tong-fu Gong-bao) 11 (2015)
Additional Articles of the ROC Constitution (Zhong-Hua-Min-Guo-Xian-Fa-Zeng-Xiu-Tiao-Wen) of 1991, 5403 Presidential Office Gazette (Zong-tong-fu Gong-bao) 2 (1991)
Arbitration Act (Zhong-Cai-Fa), adopted in 1998, 6224 Presidential Office Gazette (Zong-tong-fu Gong-bao) 40 (1998), and last revised in 2015, 7222 Presidential Office Gazette (Zong-tong-fu Gong-bao) 31 (2015)
Civil Code (Min- Fa), adopted in 1929, 174 Guo-Min-Zheng-Fu-Gong-Bao 2 (1929), and last revised in 2015, 7197 Presidential Office Gazette (Zong-tong-fu Gong-bao) 27 (2015)
Commercial Arbitration Act (Shang-Wu-Zhong-Cai-Tiao-Li), adopted in 1961, 1194 Presidential Office Gazette (Zong-tong-fu Gong-bao) 1 (1961), replaced by Arbitration Act (Zhong-Cai-Fa), adopted in 1998, 6224 Presidential Office Gazette (Zong-tong-fu Gong-bao) 40 (1998)
Family Matters Act (Jia-shi Shi-jian Fa), adopted in 2012, 7012 Presidential Office Gazette (Zong-tong-fu Gong-bao) 35 (2012), and last revised in 2015, 7226 Presidential Office Gazette (Zong-tong-fu Gong-bao) 106 (2015)
Supreme Court Decisions and Judgments: Supreme Court’s Decision # Tai-Kang 165 of 2005, Decision # Kang-16 of 1930, Decision # Tai-Kang 259 of 2012, Decision # Tai-Shang 592 of 1989, Decision # Tai-Shang 96 of 1975, Judgment # Tai-Shang 2477 of 2003, Decision # Tai-Shang 58 of 2016 and Decision # Tai-Kang 571 of 2014
Taiwanese Code of Civil Procedure (Min-Shi-Su-Song-Fa), adopted in 1930, 659 Guo-Min-Zheng-Fu-Gong-Bao 15 (1930), and last revised in 2018, 7638 Presidential Office Gazette (Zong-tong-fu Gong-bao) 38 (2018)
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2020 Springer Nature Switzerland AG
About this chapter
Cite this chapter
Chen, RC. (2020). Taiwan: Legislation and Practice on Choice of Court Agreements in Taiwan. In: Keyes, M. (eds) Optional Choice of Court Agreements in Private International Law. Ius Comparatum - Global Studies in Comparative Law, vol 37. Springer, Cham. https://doi.org/10.1007/978-3-030-23914-5_17
Download citation
DOI: https://doi.org/10.1007/978-3-030-23914-5_17
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-23913-8
Online ISBN: 978-3-030-23914-5
eBook Packages: Law and CriminologyLaw and Criminology (R0)