Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio
I. Sources of private international law
1. Major legislation
Taiwan bears the ‘Republic of China’ (henceforth ROC) as its official name and coexists with the People’s Republic of China (henceforth PRC →China). According to art 107 ROC Constitution (Zhong-Hua-Min-Guo-Xian-Fa) of 1947 (2715 Guo-Min-Zheng-Fu-Gong-Bao 1), the legislation and administration of civil law, commercial law and financial and economic matters involving foreign elements fall within the exclusive competence of the central government, as opposed to provinces and cities. Provisions on private international law may be found in a significant number of statutes on various fields of law. The major legislation on →choice of law is the Act Governing the Application of Laws in Civil Matters Involving Foreign Elements (She-Wai-Min-Shi-Fa-Lü-Shi-Yong-Fa, promulgated on 6 June 1953, effective as of the date of promulgation (403 POG 1), comprehensively revised and newly promulgated on 26 May 2010 (6923 POG 24), henceforth Taiwanese PILA). The recognition and enforcement of foreign court judgments are provided for respectively in art 402 Taiwanese Code of Civil Procedure (Min-Shi-Su-Song-Fa, henceforth Taiwanese CCP), adopted in 1930 (659 Guo-Min-Zheng-Fu-Gong-Bao 15) and last revised in 2013 (7084 POG 2), and art 4-1 Compulsory Enforcement Act (Qiang-Zhi-Zhi-Xing-Fa), adopted in 1940 (Yu-Zi-224 Guo-Min-Zheng-Fu-Gong-Bao 1) and last revised in 2014 (7143 POG 65). The general rules of recognition and enforcement of foreign arbitral awards are contained in arts 47–51 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).
2. International conventions and (quasi-)private international law
Given the facts that both Taiwan and Mainland China adhere to the ‘one China’ policy, and the PRC has represented ‘China’ in the UN since 1970, Taiwan is not a UN member and thus is neither accepted as a contracting state to the →Hague Conference on Private International Law nor allowed to accede to any of its conventions. However, the explanatory comments on the 2010 Taiwanese PILA refer to several relevant Hague Conventions, including the Hague Agency Convention (Hague Convention of 14 March 1978 on the law applicable to agency, Hague Conference on Private International Law (ed), Collection of Conventions (1951–2009) (Intersentia 2009) 268), the Hague Products Liability Convention (Hague Convention of 2 p. 1October 1973 on the law applicable to products liability, 1056 UNTS 191), the Hague Securities Convention (Hague Convention of 5 July 2006 on the law applicable to certain rights in respect of securities held with an intermediary, 46 ILM 649), the Hague Matrimonial Property Convention (Hague Convention of 14 March 1978 on the law applicable to matrimonial property regimes, 16 ILM 14), the Hague Child Protection Convention (Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children, 35 ILM 1391), the Hague Maintenance Applicable Law Convention 1973 (Hague Convention of 2 October 1973 on the law applicable to maintenance obligations, 1056 UNTS 204) and the Hague Testamentary Dispositions Convention (Hague Convention of 5 October 1961 on the conflicts of laws relating to the form of testamentary dispositions, 510 UNTS 175). In addition, the explanatory comments refer to the UN Convention on the Rights of the Child of 20 November 1989 (1577 UNTS 3) and certain multilateral treaties adopted by the Organization of American States such as the Inter-American Checks Convention 1979 (Inter-American Convention of 8 May 1979 on Conflicts of Laws concerning Checks, 1439 UNTS 1986), the Inter-American Support Obligations Convention (Inter-American Convention on Support Obligations of 15 July 1989, 29 ILM 73) and the Inter-American Bills of Exchange Convention (Inter-American Convention of 30 January 1975 on Conflict of Laws Concerning Bills of Exchange, Promissory Notes and Invoices, OAS, Treaty Series, No 40; 1438 UNTS 211). Such references indicate that the spirit of these conventions was adopted so as to modernize and internationalize Taiwanese conflicts rules. Only few bilateral treaties between Taiwan and other countries cover specific issues of private international law and remain effective in protecting the above-mentioned rights.
According to art 10 Additional Articles of the ROC Constitution (Zhong-Hua-Min-Guo-Xian-Fa-Zeng-Xiu-Tiao-Wen) of 1991 (5403 POG 2), the relations between Taiwan, Mainland China, Hong Kong and Macau are the subject of legislation. Conflicts between these four territories are dealt with in the 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), as well as the 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 2015 (7198 POG 16). These provisions establish the legal scheme of interregional conflict rules or ‘quasi-private international law’ (→Interregional/Interstate law).
3. Case-law and scholarly writings
Case-law is an integral part of Taiwan’s private international law. Supreme Court decisions on the Taiwanese PILA are de facto binding on lower courts. They play an important role in clarifying the relevant underlying policy and spirit of the Taiwanese PILA, and have a significant gap-filling role in the field of international jurisdiction. Besides interpreting the statutory concepts and applying relevant provisions by analogy to the unprovided-for facts, the Supreme Court also introduced through its precedents the theory of the →incidental (preliminary) question and the →forum non conveniens doctrine.
Scholarly writings have traditionally had significant influence on Taiwanese legislation. The present author was relied on heavily to draft the 2010 Taiwanese PILA provisions and their explanatory comments. In judicial practice, the Taiwanese courts at times cite and invoke scholarly writings to support their decisions.
II. Administration of private international law
1. Courts and non-judicial authorities
The Taiwanese PILA applies to all civil matters involving foreign elements. ‘Civil matters’ refer to commercial, family and other civil matters which are neither criminal nor administrative in nature (→Civil and commercial matters). No courts are nowadays specifically responsible for such matters. Rather, all courts and non-judicial authorities, such as public notaries, commercial and property registrars, and authorities in charge of civil registries, are under a duty to apply and interpret the Taiwanese PILA ex officio. The applicable law is to be chosen accordingly. However, all disputes on the application of the Taiwanese PILA are decided by the courts.
2. p. 1Application and establishing foreign law
The legal treatment of foreign law in civil procedure differs significantly from domestic law and from factual evidence. Pursuant to art 283 Taiwanese CCP, a party has the burden of proof with regard to foreign law unknown to the court, although the court may investigate such law on its own initiative. One of the parties has to take the initiative and show a certain level of diligence in order to establish foreign law. The principal sources of evidence for foreign law are documents (particularly public documents) and expert opinions. The courts usually request Taiwanese overseas embassies and consulates to assist in ascertaining and establishing foreign law (→Foreign law, application and ascertainment). The application of the Taiwanese PILA and the application of foreign law are subject to review by appeal courts and ultimately by the Supreme Court (→Foreign law, judicial review).
III. Principles of jurisdiction
1. Basic structure
There is no comprehensive legislation laying down the principles of the ROC courts’ international jurisdiction. In a civil case containing foreign elements, after confirming its jurisdiction over an international case, a Taiwanese court will face the problem of determining the law applicable to the case. The Supreme Court distinguishes in practice between the jurisdictional rules and the choice-of-law provisions in the Taiwanese PILA (Decision no Tai-Kang 165 of 2005).
The allocation of jurisdiction over domestic cases among the various ROC courts has been dealt with in the principal procedural codifications, such as the Taiwanese CCP, the Code of Non-litigation Matters (Fei-Song-Shi-Jian-Fa), adopted in 1964 (1544 POG 1) and last revised in 2015 (7179 POG 49), and the Code of Family Matters (Jia-Shi-Shi-Jian-Fa), adopted in 2012 (7012 POG 35). Logically speaking, once an ROC court is entrusted with the power to exercise its domestic jurisdiction over a specific case, its international jurisdiction over the same case is inherent and beyond doubt. But this approach overlooks the need to consider the ROC courts’ international jurisdiction. The prevailing academic opinion and judicial practice in Taiwan subscribes to the idea that the provisions of the Taiwanese CCP and the other procedural enactments mentioned above must be applied by analogy to decide the ROC courts’ international jurisdiction.
2. Analogy to the Taiwanese CCP
Analogous to arts 1 and 2 Taiwanese CCP, ROC courts have international jurisdiction over a case if the individual defendant has domicile or residence (→Domicile, habitual residence and establishment) in the ROC, or alternatively is a ROC citizen and enjoys →immunity from the jurisdiction of the foreign nation of their domicile or residence, or where corporate defendants have their main office or principal place of business within the ROC. The Supreme Court ruled in Decision no Tai-Kang 188 of 2013 that the lower court correctly decided not to exercise its international jurisdiction over a Japanese defendant who had neither domicile nor residence in Taiwan.
Analogous to the Taiwanese CCP provisions, ROC courts may exceptionally be granted international exclusive jurisdiction over matters relating to rights in rem, partition or demarcation of real property, where such real property is located in the ROC (art 10 Taiwanese CCP). They are also granted general international jurisdiction over the following matters:
matters relating to proprietary rights (→Property and proprietary rights), if (i) the defendant’s attachable property or the subject matter of the claim is located in the ROC (art 2 or 3 Taiwanese CCP), or (ii) the temporary residence of a defendant’s apprentice, employee or any other visitor is located in the ROC (art 4 Taiwanese CCP);
matters relating to the business of a defendant’s office or place of business which is located in the ROC (art 6 Taiwanese CCP);
matters relating to →contractual obligations which the parties have agreed to perform in the ROC (art 12 Taiwanese CCP);
matters relating to a negotiable instrument which is to be honoured in the ROC (art 13 Taiwanese CCP);
matters relating to claims arising from the management of property which is to be managed in the ROC (art 14 Taiwanese CCP);
matters relating to →torts where the tortious act occurred in the ROC (art 15 Taiwanese CCP);
registration matters which are administered p. 1in the ROC (art 17 Taiwanese CCP);
matters relating to →succession, partition or compulsory share of an inheritance, or a legacy, or any other act that is to take effect upon death, if the deceased resided in the ROC at the time of death (art 18 Taiwanese CCP);
matters relating to a particular legal relation on which the parties have submitted expressly or impliedly to the ROC courts (arts 24 and 25 Taiwanese CCP) (→Choice of forum and submission to jurisdiction).
3. Maritime matters
The issues of domestic jurisdiction over maritime matters are addressed broadly in the Taiwanese CCP. The provisions cover matters relating to proprietary rights initiated against a seaman (art 5 Taiwanese CCP), matters relating to a ship or its voyage (art 7 Taiwanese CCP), matters relating to a debt arising from or secured by a ship (art 8 Taiwanese CCP), matters relating to claims for →damages arising from a collision of ships or other accidents at sea (art 15 Taiwanese CCP) and →salvage matters (art 16 Taiwanese CCP). Besides, according to the Maritime Act (Hai-Shang-Fa), promulgated in 1929 (359 Guo-Min-Zheng-Fu-Gong-Bao 5) and last revised in 2009 (6871 POG 35), an action on any dispute arising out of a →bill of lading on which a ROC port is described as the port of loading or port of discharge is subject: (i) to the jurisdiction of the court at the place where the port of loading or port of discharge is located; or (ii) of another ROC court which has jurisdiction according to the law (art 78 Maritime Act). An action on a collision of ships is subject to: (i) the court at the place where the defendant’s domicile or principal place of business is located; (ii) the court at the place where the collision occurred; (iii) the court at the port of registry of the defendant ship; (iv) the court at the place where the ship is placed under arrest; or (v) the court at the place where the parties agreed to litigate (art 101 Maritime Act).
4. Family matters
The Code of Family Matters (Jia-Shi-Shi-Jian-Fa), adopted in 2012 (7012 POG 35), addresses simultaneously the allocation of domestic jurisdiction and the international jurisdiction. Article 52 stipulates that a matter seeking the nullification or revocation of a →marriage or a divorce, or seeking a declaratory judgment confirming the existence or non-existence of a marriage, is subject to the exclusive jurisdiction of: (i) the court of the husband’s and wife’s common domicile; (ii) the court of the husband’s and wife’s common habitual residence; or (iii) the court at the place where the husband or the wife resides and the grounds or occurrences giving rise to the action took place. However, the parties may choose the competent court in writing. If the husband or wife who is a party to such a matter has died, the proceedings are subject exclusively to the jurisdiction of the court of the husband’s or wife’s domicile at the time of death. If no court can be found to be competent in this way, the court of the defendant’s domicile or residence has jurisdiction. If the defendant’s domicile or residence cannot be established, the matter is then subject to the court at the location of the central government.
Article 53 Family Matters Code states that ROC courts are competent to exercise jurisdiction over and to rule on marital matters where any of the following four conditions exists: (i) the husband or the wife is a ROC citizen; (ii) neither the husband nor the wife is a ROC citizen, but they are domiciled or have had common residence within the ROC for over one year; (iii) the husband or the wife is stateless and has habitual residence within the ROC; or (iv) the husband or the wife has had habitual residence within the ROC for over one year (→Domicile, habitual residence and establishment). Jurisdictional competence exists unless ROC court judgments or decisions are clearly unlikely to be recognized by the state of the husband’s or wife’s →nationality. If it is apparently inconvenient for the defendant to litigate within the ROC, the ROC court is to dismiss the case on the basis of the →forum non conveniens principle.
IV. Choice-of-law rules in the Taiwanese PILA
1. General principles
Article 1 Taiwanese PILA states that, absent applicable provisions in the Taiwanese PILA, civil matters involving foreign elements are governed by the provisions of other statutes, and absent applicable provisions in other statutes, by general principles of law (→Civil and commercial matters). A Taiwanese court is thus required to determine the applicable law accordingly. Applying the Taiwanese law in a p. 1civil case involving foreign elements without consideration of →choice of law is deemed contradictory to the underlying policy of the law.
The concept of →nationality is relied on and the lex patriae principle is upheld to respect the identity of an individual from a foreign country, even though nationality has lost some of its advantages as the principal →connecting factor for personal law. To avoid any difficulty arising out of the lex patriae, less weight was given to the customary allegiance of nationality, and several legal provisions were framed to resolve the traditional problems surrounding the lex patriae.
Where the applicable law is a party’s national law and where that party has multiple nationalities, the national law is the law of the nationality most closely connected with the party (art 2 Taiwanese PILA). If the party is stateless, the law of the party’s domicile is applied (art 3 Taiwanese PILA). If the party has multiple domiciles, the law of the domicile most closely connected with the party is applied. If no domicile of a party can be established, the law of the party’s residence is applied. If the party has multiple residences, the law of the residence most closely connected with the party is applied. If no residence of the party can be established, the law of the place in which the party is present is applied (art 4 Taiwanese PILA).
Where the applicable law is the national law of a party, but the national law of the party differs by reference to sub-national region or another factor, the applicable law is the law as indicated by the rules on choice of law of that national law. If the rules on choice of law of that national law are unclear, the law with which the party is most closely connected, whether by territory or another factor, is applied (art 5 Taiwanese PILA). If the applicable national law of the party indicates that another law should govern the legal relation in question, that other law is applied. However, if the national law of the party or the other law in turn indicates that ROC law is applicable, then the internal law of the ROC is applied (art 6 Taiwanese PILA). In other words, the doctrine of →renvoi is adopted to ease resolving conflict of choice-of-law laws. By referring to the whole of an alien’s national law, including its choice-of-law rules, the alien’s national law is expected to be remitted or referred again to the law of their habitual residence (→Domicile, habitual residence and establishment). This is intended to promote the harmonization of international decisions.
Evasion of domestic compulsory provisions is not tolerated and the domestic →public policy prevails to an extent. Where a party to a civil matter involving foreign elements evades a compulsory provision or a prohibition of ROC law, that compulsory provision or prohibition is nevertheless applied (art 7 Taiwanese PILA) (→Evasion of laws (fraus legis)). If the result of applying a law of a foreign state leads to a violation of ROC public order or boni mores, that foreign state law is not applied (art 8 Taiwanese PILA). It is emphasized that the designated foreign law can only be excluded if it will lead to a ‘result’ that is considered unacceptable within the domestic legal system (→Public policy (ordre public)).
The Taiwanese PILA is silent regarding →classification (characterization) and the →incidental (preliminary) question. ROC courts exercise their discretion cautiously in this respect. There is no reported case where the ROC courts have expressly adopted the criteria of a foreign law to characterize the legal relationship at issue or to determine the law applicable to an incidental question by foreign conflicts rule. The Taiwan Supreme Court ruled in Judgment no Tai-Shang 1365 of 2001 that the victim’s claim for damages resulting from an air crash was to be governed by the law applicable to such a ‘tortious act’ (→torts). This opinion complies with the overall trend of comparative law.
2. The subject of rights
Either an individual or a legal person can be the subject of rights. A person’s legal capacity or capacity to act is governed by their national law (arts 9 and 10 Taiwanese PILA). But the person’s capacity to act is not lost or limited because of a change of nationality. Where an alien of no or limited capacity to act under their national law is of full capacity to act under ROC law, that alien is deemed to be of full capacity to act with respect to juridical acts undertaken within the ROC (art 10(3) Taiwanese PILA) (→Personal status).
The Taiwanese PILA addresses the jurisdiction and law applicable to a declaration of an alien’s death, guardianship or curatorship. Where an alien with domicile (→Domicile, habitual residence and establishment) or residence within the ROC has disappeared, p. 1a declaration of death of that alien may be decreed with respect to property located within the ROC or with respect to those legal relations affecting the alien that are required to be determined by reference to ROC law. A declaration of death of an alien may be decreed in accordance with ROC law and without regard to the above limitations, upon the application of the spouse or a lineal blood relative of the disappeared alien if the spouse or lineal relative is a ROC national and has domicile or residence within the ROC (art 11 Taiwanese PILA) (→Absence (disappearance, presumed death)). Where there is a valid ground to declare guardianship or curatorship in respect of an alien under both their national law and ROC law, a declaration of guardianship or curatorship may be decreed if the alien has a domicile or residence within the ROC (art 12 Taiwanese PILA). The effect of such a declaration of death, guardianship or curatorship of an alien is governed by ROC law (→Adults, protection of).
The national law of a legal person (→Companies), pursuant to art 13 Taiwanese PILA, is the law under which it was incorporated. This law governs its internal affairs including: (i) the legal person’s incorporation, legal nature, legal capacity and capacity to act; (ii) the acquisition or withdrawal of membership in it; (iii) the rights and obligations of membership in it; (iv) its organs and organization; (v) its representatives’ limitations to powers of representation; (vi) the internal distribution of liability towards a third party between the legal person and its organs; (vii) the amendment of the articles of association; and (viii) its dissolution and liquidation (art 14 Taiwanese PILA). If an alien legal person establishes a branch under ROC law, the internal affairs of that branch are governed by ROC law (art 15 Taiwanese PILA).
3. Formal prerequisites of juridical acts: agency
The formal prerequisites of a juridical act are governed by the law applicable to the act. However, a juridical act that conforms to the formal prerequisites provided for in the law of the place where the act was undertaken is also effective. Where a juridical act is undertaken at different places, it is effective provided that it conforms to the formal prerequisites of the law of any one of the places (art 16 Taiwanese PILA). The locus regit actum principle was apparently embodied in the Taiwanese PILA so as to promote the validity of a juridical act (→Formal requirements and validity).
The Taiwanese PILA treats a voluntary agency in three dimensions (→Agency and authority of agents). Where an agent’s authority is conferred by a juridical act, the formation of the agency and the relationship between the principal and agent are governed by the law expressly chosen by them or alternatively, absent such an express choice, by the law of the place with which the agency relationship is most closely connected (art 17 Taiwanese PILA). Where an agent undertakes a juridical act with a third party on behalf of the principal, as between the principal and the third party, the existence, extent and effect of an exercise of the agent’s authority are governed by the law expressly chosen by the principal and the third party or, absent such an express choice, by the law of the place with which the act undertaken by the agent is most closely connected (art 18 Taiwanese PILA). Where an agent undertakes a juridical act with a third party on behalf of the principal, as between the third party and the agent, the legal effect of the agent’s acting with, in excess of, or without authority is also governed by the same applicable law (art 19 Taiwanese PILA).
The Taiwanese PILA enshrines the principle of →party autonomy. The formation and effect of a juridical act resulting in a relationship of obligation are determined by the parties’ intention. Absent express intention of the parties or where their express intention is void under the applicable law determined by them, they are governed by the law most closely connected with the juridical act. Where there is a characteristic obligation among those resulting from a juridical act, the law of the domicile of the party obligated under the characteristic obligation at the time they performed the juridical act is presumed to be the most closely connected law. 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 (art 20 Taiwanese PILA). The parties’ choice of applicable law must be in explicit terms (→Choice of law). The criterion of ‘characteristic performance’ has been adopted as a prima facie rule in deciding the closest connection.
p. 1Similar principles are provided for unilateral juridical acts which create the rights on a negotiable instrument (→Cheques), or obligations on a security made payable to order or to bearer. However, where the place of the juridical act is unclear, the law of the place of payment governs. The formal requisites of a juridical act undertaken for the purpose of exercising or preserving a right on a negotiable instrument are governed by the law of the place of the act (arts 21 and 22 Taiwanese PILA). When an action has been brought in a ROC court on an obligation which arises otherwise than from a juridical act, and where the parties agree to the application of ROC law with respect to an obligation, ROC law is applied (art 31 Taiwanese PILA) (→Choice of law).
The closest-connection approach is also adopted in determining the law applicable to →torts. An obligation arising from a tort is governed by the law of the place where the tort was committed, unless another law is the law most closely connected with the tort (art 25 Taiwanese PILA). The existence of a direct claim of an injured person against the tortfeasor’s insurer is governed by the law applicable to the →insurance contract. However, the injured person may also assert a direct claim if the law applicable to the obligation permits its assertion (art 29 Taiwanese PILA) (→Direct action).
Special choice-of-law rules are established for several types of →torts. →Products liability is basically governed by the manufacturer’s national law, but the injured person can choose among the three options given below as the applicable law, provided that the manufacturer has agreed in advance or where the manufacturer could reasonably have foreseen that the product would be sold in such a place: (i) the law of the place of injury; (ii) the law of the place where the injured person purchased the product; or (iii) the injured person’s national law (art 26 Taiwanese PILA). Civil liability for anti-competitive conduct is governed by the law of the place where the affected market is located. However, where the anti-competitive conduct is produced by a juridical act and where the law governing the juridical act is more beneficial to the injured person, that law is applied (art 27 Taiwanese PILA). Despite the nature of public law, foreign antitrust law or competition law can be applied for the purpose of determining the type and amount of →remedies for such anti-competitive conduct (→Competition law (antitrust); →Competition, unfair).
The obligation arising from a ubiquitous tort committed by means of publication, radio, television, Internet publication or other medium of communication is governed by the most closely connected law as follows: either (i) the law of the place where the tort was committed or the law of the tortfeasor’s domicile; (ii) the law of the place where the injury occurred, provided that the tortfeasor could reasonably have foreseen that place; or (iii) the injured person’s national law, provided that the injury was done to their individual →personality rights. If such a tortfeasor is in the business of publication, radio, television, Internet publication or other medium of communication, then the law of the place of their business governs (art 28 Taiwanese PILA).
An obligation arising from a legal fact other than a juridical act or tort is governed by the law of the place where the fact occurred (art 30 Taiwanese PILA). If the fact constitutes the management of the affairs of another without mandate (→Negotiorum gestio), then it is governed by the law of the place where the management was undertaken (art 23 Taiwanese PILA). If the fact is an unjust enrichment, it is governed by the law of the place where the enrichment was received. However, if the →unjust enrichment (restitution) arises from an intended performance of an obligation, then the obligation of the enriched party is governed by the law applicable to the legal relationship giving rise to the intended performance (art 24 Taiwanese PILA) (→Assignability/Assignment of claims).
The transfer of a claim, the assumption of a debt, the time limitation of action for a claim and the extinction of an obligation are basically governed by the law applicable to the formation and effect of the claim (arts 32, 33, 36 and 37 Taiwanese PILA). Where a third party provides security for a claim, the effect on the third party of a claim transfer or an assumption of debt is determined by the law governing the formation and effect of the security (art 32 Taiwanese PILA) (→Guarantees). Where a third party fulfils an obligation on behalf of a debtor by reason of a particular legal relationship existing between them, the right of reimbursement of the third party against the debtor is governed by the law applicable to their legal relationship (art 34 Taiwanese PILA). Where an obligation borne by multiple persons has been p. 1performed by some of them, the right to reimbursement of those who performed against the others is governed by the law applicable to the legal relationship between all of them (art 35 Taiwanese PILA) (→Multiple defendants and joint liability).
5. Rights in rem
The lex loci rei sitae principle is basically adopted for the rights in rem. A property right in a movable or immovable thing is governed by the law of the place where the thing is located (→Property and proprietary rights; →Immovable property). A property right in a right is governed by the law of the place where the right is formed. A property right in a ship is governed by the law of the →nationality of the ship (→Property and proprietary rights in vessels) and a property right in an aircraft is governed by the law of the state in which the aircraft is registered. Where the location of a thing has changed, the acquisition, loss or change of a property right in the thing is governed by the law of the location of the thing at the time the decisive event occurred (art 38 Taiwanese PILA). The formal requisites of a juridical act concerning a property right are governed by the law applicable to the right (art 39 Taiwanese PILA). ROC law governs the effect of a property right in a movable thing formed in accordance with the law prevailing in the foreign location from which it is brought into the ROC (art 40 Taiwanese PILA). The acquisition, creation, loss or change of a property right in a movable thing during its transit is governed by the law of its destination (art 41 Taiwanese PILA).
The legal relationship arising from an ocean →bill of lading or a warehouse receipt is governed by the law specified as applicable on the bill (→Choice of law; →Sea waybills and other transport documents). Absent such specification, the relationship is governed by the law of the place most closely connected with the bill. Where goods covered by an ocean bill of lading are claimed by multiple persons on the basis either of the bill or of a property right, the priority of the claims to the goods is governed by the law applicable to claims of property right in the goods (art 43 Taiwanese PILA). Where a security is held by a centralized depositary, the acquisition, loss, disposition or change of a right in the security is governed by the law expressly specified as applicable in the contract of centralized deposit (→Choice of law). Absent express specification, the law of the place most closely connected with the security governs (art 44 Taiwanese PILA).
Article 42 Taiwanese PILA contains the lex loci protectionis principle for intellectual property rights, in line with the CLIP Principles published by the European Max Planck Group on Conflict of Laws in Intellectual Property (→CLIP) in 2011. An intellectual property right is governed by the law of the place where the protection of that right is sought (→Intellectual property, applicable law). Any intellectual property created by an employee in the performance of their duties is governed by the law applicable to the contract of employment (→Employment contracts, applicable law). The →characterization problem of an intellectual property right and the legal relationship behind its creation is thus resolved.
6. Domestic relations
The lex patriae principle is broadly adopted in choosing the applicable law for domestic relations. The formation of a →marriage or an engagement to marry is governed by the respective national law of each party. However, formation is also effective if it satisfies the formal requisites of the national law of one of the parties or of the law of the place where it is concluded. The effect of a marriage or engagement to marry is governed by the national law common to the parties, absent a common national law, by the law of the parties’ common domicile and, absent such a common law of domicile, by the law most closely connected with it (arts 45–47 Taiwanese PILA). The law applicable to a divorce and its effect is determined similarly to the effects of a marriage (art 50 Taiwanese PILA).
→Party autonomy is taken into account in determining the law applicable to a →matrimonial property regime, which is governed in order of priority and depending on the existence of: (i) a valid written agreement by the spouses that either the national law or the law of domicile of one of them will apply; (ii) their common national law; (iii) the law of their common domicile; (iv) the law of their common residence; or (v) the law of the place most closely connected with the marriage relationship. With respect to the immovable property of the spouses, if the property is subject to special provisions under the law of the place where it is p. 1located, such special provisions prevail (art 48 Taiwanese PILA). Where the applicable law to a matrimonial property regime is a foreign law, but where the spouses have performed a juridical act with a third party acting in good faith concerning a property located in the ROC, then the effect of the matrimonial property regime on the third party is governed by ROC law (art 49 Taiwanese PILA).
The legitimacy, legitimization (→Kinship and legitimation) and →adoption of a child are all addressed in the Taiwanese PILA. A child is a legitimate child if this was the case under the child’s national law, the law of the mother, or of the husband of the mother at the time of birth, or at the time that the marriage relationship between the parents ended (art 51 Taiwanese PILA). Where the natural father and natural mother of a child born out of wedlock become married, the status of the child is governed by the law applicable to the effect of the marriage (art 52 Taiwanese PILA). An acknowledgement of paternity is effective if, at the time it is made or an action concerning paternity is filed, it is effective under the national law of either the acknowledging person or the acknowledged person. If the acknowledged person is a fetus, the national law of the fetus is that of the mother. The effect of an acknowledgement of paternity is governed by the national law of the acknowledging person (art 53 Taiwanese PILA). The formation and termination of a child adoption are governed for the adoptive parent and for the adopted child by their respective national laws, whereas the consequences of the adoption and its termination are governed by the national law of the adoptive parent (art 54 Taiwanese PILA).
The national law of a child or a vulnerable party is applicable to protecting their best interests. The legal relationship between parents and their children is governed by the national law of the children (art 55 Taiwanese PILA). A relationship of maintenance, whether or not arising from a matrimonial relationship, is governed by the national law of the person entitled to maintenance (art 57 Taiwanese PILA) (→Maintenance obligations). A guardianship or curatorship is governed by the national law of the ward. However, the guardianship or curatorship of a ward who is an alien but has domicile or residence within the ROC is governed by ROC law under the following circumstances: (i) where, under the ward’s national law, a guardian should have been appointed for them, but there is no person performing the office of guardian; and (ii) where the ward is the subject of a declaration of guardianship in the ROC (art 56 Taiwanese PILA) (→Guardianship, custody and parental responsibility).
→Succession upon death is governed by the national law of the deceased, while if a ROC national is an heir under ROC law, they are entitled to inherit that part of the estate located within the ROC (art 58 Taiwanese PILA). Where an alien dies leaving property within the ROC, if no person is entitled to take the property by descent, that property is dealt with in accordance with ROC law (art 59 Taiwanese PILA). The making and consequences of a will are governed by the testator’s national law at the time of making of the will, while the revocation of a will is governed by the testator’s national law at the time of revocation (art 60 Taiwanese PILA). A will is effectively made or revoked by following the formal requisites as provided in any one of the following laws: (i) the applicable law stated above; (ii) the law of the place where the will was made; (iii) the law of the place in which the testator was domiciled at the time of death; and (iv) if the will concerns immovable property, the law of the place where the immovable property is located (art 61 Taiwanese PILA).
V. Recognition and enforcement of foreign judgments and arbitral awards
Taiwan’s CCP addresses the recognition of a foreign court judgment in art 402 (→Recognition and enforcement of judgments (civil law); →Full Faith and Credit clause). A final and binding judgment or ruling rendered by a foreign court is to be recognized, except under any of the following circumstances: (i) where the foreign court lacks jurisdiction pursuant to ROC law; (ii) where a default judgment is rendered against the losing defendant, unless the notice or summons of the initiation of action had been legally served within a reasonable time in the foreign country or had been served through judicial assistance provided under ROC law; (iii) where the performance ordered by such judgment or its litigation procedure leads to a violation of ROC public order or boni mores (→Public policy (ordre public)); (iv) where there is no mutual recognition between the foreign p. 1country and the ROC (→Reciprocity). The same standards are adopted in art 4-1(1) of the Compulsory Enforcement Act to enforce foreign court judgments.
The current Taiwanese arbitration legislation is the Arbitration Act (Zhong-Cai-Fa), adopted in 1998 (6224 POG 40) and last revised in 2015 (7222 POG 31). It adopted the spirit of the UNCITRAL Arbitration Model Law (United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration as adopted on 21 June 1985 and as amended on 7 July 2006, UN Doc A/40/17 and A/61/17; →Arbitration, (UNCITRAL) Model Law) and the New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3), although Taiwan is neither a UN member nor a party to the New York Convention (→Alternative dispute resolution; →Arbitration, (UNCITRAL) Model Law; →Arbitration, international commercial).
According to art 47 Arbitration Act, a foreign arbitral award is an arbitral award which is issued outside the territory of the ROC or issued pursuant to foreign laws within the territory of the ROC. A foreign arbitral award, after an application for recognition has been granted by the court, shall have the same force between the parties as a final judgment rendered by the court and may be a ground of execution (→Arbitration, recognition of awards). The application submitted by a party for recognizing a foreign arbitral award will be dismissed if: (i) the recognition or enforcement of the arbitral award leads to a violation of ROC public order or boni mores (→Public policy (ordre public)); or (ii) the arbitrated dispute is not arbitrable under ROC law. It may be dismissed if the country where the arbitral award is made or whose law governs the arbitral award of which recognition is sought does not recognize ROC arbitral awards (→Reciprocity) (art 49 Arbitration Act). The award may also be dismissed within 20 days at the request of the respondent where any one of the six following situations exists: (i) the arbitration agreement is invalid as a result of the incapacity of a party (→Capacity and emancipation) according to the law applicable to such a party; (ii) the arbitration agreement is null and void according to the law chosen to govern the agreement or, in the absence of →choice of law, the law of the country where the arbitral award was made; (iii) a party is not given proper notice whether of the appointment of an arbitrator or of any other matter required in the arbitral proceedings, or any other situations which give rise to lack of due process; (iv) the arbitral award is not relevant to the subject matter of the dispute covered by the arbitral agreement or exceeds the scope of the arbitration agreement, unless the offending portion can be severed from and will not affect the remainder of the arbitral award; (v) the composition of the arbitral tribunal or the arbitration procedure contravenes the arbitration agreement or, in the absence of an arbitration agreement, the law of the place of the arbitration; or (vi) the arbitral award is not yet binding upon the parties or has been suspended or revoked by a competent court (art 50 Arbitration Act).
The underlying policy of these provisions is to promote the recognition and enforcement of foreign judgments and arbitral awards. Taiwanese courts can only recognize and enforce them if there is a lack of the negative factors. The Supreme Court has ruled that the →reciprocity requirement is satisfied if the foreign court has recognized or is expected to recognize Taiwan’s court judgments or arbitral awards (Judgment no Tai-Shang 1943 of 2004). The →public policy clause can only be asserted if the foreign judgment or arbitral award has consequences that are markedly incompatible with the basic rules or concepts of Taiwan’s legal or ethical order (Judgment no Tai-Zai 46 of 2009). As treble →damages have been adopted in art 51 Consumer Protection Act (Xiao-Fei-Zhe-Bao-Hu-Fa), adopted in 1994 (5819 POG 1) and last revised in 2005 (6617 POG 48), art 32 Fair Trade Act (Gong-Ping-Jiao-Yi-Fa), adopted in 1991 (5364 POG 1) and last revised in 2015 (7179 POG 299) and some other enactments, it is hard to argue that all punitive damages are contradictory to ROC public policy. Therefore, if Taiwanese courts will grant treble damages in the same case under ROC law, the foreign judgment or arbitral award awarding punitive damages in such a case under foreign law is to be recognized and enforced up to the amount of treble damages (Judgments no Tai-Shang 835 of 2008, no Tai-Shang 2193 of 2010 and no Tai-Shang 552 of 2011).
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