Arbitration for disputes with companies from Taiwan

Transcription

1 Arbitration for disputes with companies from Taiwan Dr. Wan-Rong Chang-Schöne LL.M. (Arizona, U.S.A.) (I) CEAC as a neutral organization (II) Arbitration under the UNCITRAL concept in Taiwan (III) Recognition and enforcement of arbitral awards in Taiwan Page 1

2 (I) CEAC as a neutral organisation Seat in Europe Neutrality in management Neutrality in appointing arbitrators Neutral arbitration rules Neutral choice of law options Page 2

3 (II) Arbitration under the UNCITRAL Concept in Taiwan Governing rules Arbitral institutions in Taiwan Process of the institutional arbitration Revocation of the arbitral award Page 3

4 Governing rules - Arbitration law of the R.O.C. - Rules of the arbitration institution - Code of civil procedure of the R.O.C. Arbitration institutions in Taiwan - Arbitration Association of the R.O.C. - Taiwan Construction Arbitration Association - The Labor Dispute Arbitration Association - The Chinese Engineering Arbitration Association Page 4

5 Process of the institutional arbitration - Valid arbitration agreement, written form: Place of arbitration, appointing arbitrators or arbitration insitution, method of appointment, number of arbitrators, language of the proceedings, arbitration proceeding rules - Application for arbitration - Review by the arbitral institution - Appointment of the arbitrator and setting of the arbitral tribunal Problem/Challenge: Neutrality Page 5

6 - Arbitration hearing - Award rendering Problem/Challenge: Applying rules of equity at discretion of arbitral tribunal - Application for enforcement to the competent court: e.g., rejection of the application for enforcement (Art. 38 Arbitration Law of the R.O.C.) Problem/Challenge: Application dismissal (Art. 38 Nr. 3: arbitral award directs a party to act contrary to the law allowing the court to conduct extensive review of the award.) Page 6

7 Revocation of the arbitral award - Application for revocation of the arbitral award to the court - Revocation cause (Art. 40 Arbitration Law of the R.O.C.) o o Art. 40 Nr. 1: A party may apply to a court to set aside the arbitral award if any circumstances exist which are stated in Art. 38. Art. 38 Nr. 3 is applicable. Problem/Challenge: Extensive review by court Page 7

8 (IIII) Recognition and Enforcement of arbitral awards in Taiwan R/E of international arbitral awards according to New York Convention of 1958 R/E of foreign arbitral awards in Taiwan Page 8

9 New York Convention of Obligation of recognizing and enforcing arbitral award issued in other contracting state (Art. 3) - Rejection of the application only under limited circumstances such as incapacity of the parties, invalidity of the arbitration agreement, composition of the arbitral authority or the arbitral procedure or incompatibility with public policy of the country - Contracting Parties: 1 st Oct 2009: 142 of the 192 United Nations Member States have adopted the Convention excluding Taiwan. Page 9

10 Foreign arbitral awards in Taiwan - R/E pursuant to Art Arbitration Law of the R.O.C. in general - Rejection of application for R/E according to Art. 49 Arbitration Law of the R.O.C. Court can refuse to recognize the arbitral award (lack of national reciprocity) - R/E of the arbitral award issued in China and Hongkong o Art. 74 of the Act Governing Relations Between The People of the Taiwan Area and the Mainland Area Page 10

11 Conclusions Arbitration in Taiwan might be in disfavour of foreign company ( neutrality of the arbitrator not guaranteed); rules of equity; extensive competence of the court to examine award R/E of foreign arbitral award in Taiwan is also in disfavour of foreign company if a national reciprocity is lacking. CEAC is a neutral, impartial arbitration institution, independent of China, Taiwan etc. Page 11