Are Foreign Courts Recognising Taiwan?

We now hear from Edward Lui, who briefly touches on the Taiwanese legal sector and how Taiwan is trying to mark their footprint in the global market.

Ever since 2008, more and more cross border disputes I was instructed on were debt collection cases, and most of them were, not just some simple default in payments, but resulted from the financial crisis the whole world was facing, which made such disputes a lot more complicated than they should have been. Insolvency proceedings can be started, either voluntarily or by petition of the creditor(s). Furthermore, different industries may have different focuses that needed to be carefully scrutinised. Taking solar energy as an example, the dispute would involve, not only private companies, but public interest where local government could step in, maybe by using the incentive/subsidy programme or tax regulations. All these factors made creditors harder to collect their debts, for debtors are furnished with more bases to defend and/or to justify their ‘breach of contract’. Therefore, the coordination with local lawyers is crucial, so that the client trying to collect the payments can clearly understand what obstacles they need to deal with, beforehand, and be advised of the best strategy from local law perspective.

For this kind of international commercial disputes, arbitration is always one of the most common mechanisms for dispute resolution. However, because Taiwan is not a signatory country of the New York Convention, unlike other international enterprises who would prefer having their disputes resolved in their home town, it may not be the same for Taiwanese companies. Considering the enforceability of the arbitral award, Taiwanese companies may tend to accept, or even propose, to resort to SIAC, HKIAC or other international arbitration associations if involving cross border transactions, and to have their future disputes arbitrated in counties where New York Convention applies. After all, it could be problematic for a Taiwan arbitral award to be recognised and enforced in other jurisdictions.

Nonetheless, we have represented a Taiwanese company in an arbitration conducted in Taiwan against a US company. After we successfully got a favourable award, we tried to enforce it in the States. This was, to our knowledge, the very first case where a US court dealt with Taiwan arbitral award. Though the US court refused to directly enforce the arbitral award for Taiwan is not one of the New York Convention signatories, the court eventually accepted our arguments and recognised the Taiwan court ruling which enforced the arbitral award, ordering this US company to pay our client accordingly. This outcome, although not entirely satisfactory because it was not the Taiwan arbitral award being enforced, but the Taiwan court decision, still, this progress to some extent encourages and confirms, at least for US-related cases, arbitration in Taiwan can be an option in international dispute resolution regime. Yet, we expect more and more foreign courts will recognise and enforce Taiwan arbitral awards so that Taiwan can take a more active role in the global market.

Edward Liu | Partner

Chen & Lin Attorneys-at-Law

Bank Tower, 12th Floor

205 Tun Hwa North Road

Taipei 105

Taiwan

Tel: +886 2 2715 0270

Fax: +886 2 2514 7510

edwardliu@chenandlin.com

www.chenandlin.com

I graduated from National Taiwan University in 2002. In 2005, I passed the bar examination in Taiwan and started my law practice. Two years later, I went to New York University School of Law, majoring in corporate law, where I obtained my master degree in 2008. In the same year, I passed the New York State Bar Examination.

For more than a decade of experience practicing law, I primarily focus on cross-border dispute resolution, including litigation, mediation and arbitration. I had handled many cases involving in commercial disputes, patent infringement, patent licensing, prosecution against violation of Trade Secret Act and defending white collar crimes, etc. I am well experienced in management of transnational cases and coordination with clients/counsels from different jurisdictions.

I serve both local and international clients, in different fields of businesses, including high-tech, pharmaceutical, cosmetic, insurance companies and, as their general legal counsel, has been providing satisfactory advices to the clients. I am now a partner at Chen & Lin and lead the litigation team of the firm.

Chen & Lin is a firm that engages in a diverse and sophisticated general business practice in Taiwan. We provide our clients with a full range of business law services, including corporate, securities, finance, intellectual property and all types of business litigation.

We represent a wide variety of clients including a world-class semiconductor foundry company, several multinational corporations and many major national and international players in hi-tech and information industry involved in patent, copyright, trademark and trade secrete license or infringement, telecommunication, depositary receipt or convertible bond issuance, joint venture, merger and acquisition, trade practices, syndicated loan arrangement and environment protection.