TAIWAN Law and Practice Contributed by: Yafen Lin, Peng-Kwang Chen, I-Ming Chen and Weiyu Chiang, Formosa Transnational
Arbitral Awards From China It is worth noting that Chinese arbitral awards are treated differently from arbitral awards seated in oth - er offshore jurisdictions (Hong Kong and Macao are excluded here as the Taiwan Arbitration Law applies mutatis mutandis to arbitral awards made in these two areas). Pursuant to Article 74 of the Cross-Strait Relations Act, a Taiwanese court shall confirm/rec - ognise civil arbitral awards made in the seat of China provided that: • the arbitral award is not contrary to public order and good morals (public policy) in Taiwan; and • arbitral awards made in Taiwan are eligible for a recognition order or considered enforceable titles in China (ie, reciprocity requirement). Arbitral Awards From Other Jurisdictions Arbitration rules and foreign arbitral awards Pursuant to Article 47 (1) of the Taiwan Arbitration Law, a foreign arbitral award refers to: • an arbitral award seated outside the territory of Taiwan; or • an arbitral award made in accordance with foreign laws even though seated within the jurisdiction of Taiwan. Under the above definition, an arbitral award seated in Taiwan is not necessarily a domestic arbitral award if foreign laws apply. This point was illustrated by a 2022 Supreme Court judgment. The Supreme Court in that case took the view that an arbitration award made in accordance with the ICC Arbitration Rules within the territory of Taiwan is deemed a foreign arbitration award. Recognition and enforcement To enforce a foreign arbitral award, one must obtain a recognition decision rendered by the Taiwanese court first. According to Article 49 of the Taiwan Arbitration Law, an application for recognition of a foreign arbi - tral award shall be dismissed if any of the following circumstances apply:
Being contrary to public order and good morals in Taiwan The Taiwanese court will refuse to recognise a for - eign arbitral award if such arbitral award is contrary to public order or good morals (public policy) in Taiwan. Although Taiwan is not a contracting party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the “New York Con - vention”), this public order requirement is to some extent comparable to the public-policy exception under the New York Convention (Article V 2 (b) of the New York Convention). Arbitrability The Taiwanese court will refuse to recognise a foreign arbitral award if such award concerns a dispute that cannot be resolved by arbitration under the laws of Taiwan (ie, lack of arbitrability). Reciprocity The Taiwanese court will refuse to recognise a foreign arbitral award if the country where the arbitral award was made or whose laws govern the arbitral award does not recognise Taiwanese arbitral awards. The de facto application of the New York Convention Owing to its contested political status, Taiwan is cur - rently not a contracting party to the New York Con - vention. Nevertheless, the Taiwan Arbitration Law has adopted some of the principles underpinning the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”) adopted by the United Nations Commission on International Trade Law. Despite Taiwan’s not being a signatory of the New York Convention, its exclusion from the New York Convention does not necessarily affect reciprocity when it comes to the enforcement of arbitral awards. In fact, Taiwanese courts tend to take a relatively liber - al approach to determining the reciprocity requirement in the case of foreign arbitral award recognition. A Tai - wanese High Court decision from 2005 states that the reciprocity prerequisite to recognising foreign arbitral awards, as stipulated by the Taiwan Arbitration Law, does not require a recognition made by the Taiwan - ese court only if the foreign arbitral seat recognises Taiwanese arbitral rewards; instead, such stipulation
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