Taiwan: Legislation and Practice on Choice of Court Agreements in Taiwan

Abstract

The effectiveness of jurisdictional agreements was envisaged and recognized in the Taiwanese Code of Civil Procedure. Its provisions apply to both optional and exclusive choice of court agreements, despite the fact that they are basically designed for the latter. This chapter addresses the legislative development and judicial practice on such agreements. Section 1 explores the legislation on jurisdictional agreements with emphasis on their limitative requirements and adjustment to cope with modern communications technology. Section 2 focuses on judicial practice about optional choice of court agreements. The Supreme Court’s Decision # Tai-Kang 259 of 2012 plays a significant role in illustrating the methodology adopted to fill the gap of rules of international jurisdiction. The fact that Taiwanese courts prefer to characterize foreign nominated courts’ jurisdiction as optional reflects Taiwan’s judicial protectionism due to its isolation in the international arena. The forum law is applicable to the effects of the jurisdictional agreements and justifies the different treatment of optional and exclusive choice of court agreements. Section 3 deals with asymmetrical choice of court agreements. The test of their validity is whether a weaker party is unfairly impaired, rather than whether the bargaining powers are imbalanced and their standing to sue is asymmetrical. Section 4 concludes with some observations about future developments.