A. LEGISLATION AND RULES
International arbitration proceed in Taiwan continues to be governed by the Arbitration Law, to which there have been no legislative amendments in the past year.
A.2 Institutions, rules and infrastructure
The Chinese Arbitration Association, Taipei (CAA) remains the leading arbitration institution in Taiwan. There has been no amendment to the CAA Arbitration Rules in the last 12 months. In 2022, CAA held several conferences on the topics ranging from the development and operation of offshore windfarm projects and ADR’s role to the interpretation of “public order or good morals” set out in the Arbitration Law and its implications for the courts in the cases of recognition of foreign arbitral awards, which have been the issues intensively discussed by the practitioners.
B.1 The “foreign arbitral award” made in accordance with ICC Arbitration Rules within the territory of Taiwan may not be set aside in accordance with the Arbitration Law in Taiwan
The appellant of this case, who filed an application for arbitration with the ICC Court of Arbitration in 2017, had the arbitration proceeding in Taipei, Taiwan, and obtained the arbitral award in 2018, argued that the arbitral award in question was in violation of many provisions set forth in the Arbitration Law and thus filed a claim for setting aside the said arbitral award in accordance with the Arbitration Law. Both the Taipei District Court and Taiwan High Court rejected this claim.
The Supreme Court (2021 Tai-Shan-Tzu No. 1563 Civil Judgment, which was announced on 24 February 2022 and made public in March 2022) also adopts the Taiwan High Court’s view and further elaborates on the application of Chapter V (Revocation of the Arbitral Award) of the Arbitration Law. In its reasoning, the Supreme Court holds that, based on the structure of the Arbitration Law, as Chapter VII (Foreign Arbitral Award) of the Arbitration Law sets out the specific provisions for foreign arbitral awards and clearly shows that the enforceability of foreign arbitral awards (unlike domestic arbitral awards) will only be effected upon recognition, the provisions for setting aside arbitral awards set out in Chapter V of the Arbitration Law are applicable to domestic arbitral awards only and not applicable to foreign arbitral awards.
Based on the above, the Supreme Court concludes that arbitral awards made in accordance with the ICC Arbitration Rules within the territory of Taiwan, as they are, by their nature, “foreign arbitral awards,” may not be set aside in accordance with the Arbitration Law.
B.2 To the arbitration agreement specified in digital documents, the courts hold that the statutory form requirements for recognition of foreign arbitral awards can be lowered
Article 48 of the Arbitration Law provides:
“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 thereof; 2. The original arbitration agreement or an authenticated copy thereof; 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.”
Where the arbitration agreement is made in digital documents, the question of how to submit the “original arbitration agreement or an authenticated copy thereof” in the proceeding of recognition of foreign arbitral awards becomes an issue.
Recently, based on several of the latest rulings, it seems that the courts tend to take a more open view on this issue. For example, in one Taipei District Court ruling (2021 Zhong-Sheng-Tzu No. 1 Civil Ruling, which was announced on 31 August 2022), the court held that, for digital documents which were not initially printed documents, the concept of the “original” arbitration agreement should not apply. Tracing back to the legislative intent of the foregoing provision, the court was of the view that the requirement of submitting an “original arbitration agreement or an authenticated copy thereof” is to confirm the authenticity of the arbitration agreement; for cases of arbitration agreements made in digital documents, the foregoing statutory form requirements can be, to some extent, lowered. The court concluded, considering the legislative purpose of this article, that if the authenticity of the arbitration agreement between the parties can be inferred by the explicit or implicit acts of the parties, the application for recognition of the foreign arbitral award should be allowed.