Alternate Dispute Resolution Law at Taiwan
Alternate Dispute Resolution (ADR) in Taiwan has gained significant recognition and importance in recent years, especially as the country modernizes its legal framework to provide more efficient, cost-effective, and flexible methods for resolving disputes. ADR mechanisms such as arbitration, mediation, and conciliation are actively encouraged, and the legal framework supporting ADR is well-structured, especially in commercial, family, labor, and civil disputes.
Here’s an overview of ADR law in Taiwan:
⚖️ Key ADR Mechanisms in Taiwan
1. Arbitration
Legal Framework:
The legal framework governing arbitration in Taiwan is primarily found in the Arbitration Law of the Republic of China (Civil Procedure Law, Articles 529-552) and the Taiwan Arbitration Act (1998), which is based on UNCITRAL Model Law and has been further developed to align with international standards.
Taiwan is not a signatory of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, but arbitration awards made in Taiwan are enforceable under local law and can be recognized by Taiwan's courts.
Arbitration Process:
Parties in Taiwan are free to choose the arbitrators, rules, and venue for arbitration.
Arbitration in Taiwan can be used in a variety of areas including commercial disputes, construction contracts, intellectual property matters, and employment disputes.
Arbitration can be initiated voluntarily by parties through an arbitration agreement or contract clause.
Arbitration Institutions:
Taiwan has several arbitration bodies, with the most prominent being the Chinese Arbitration Association (CAA) in Taipei, which provides both domestic and international arbitration services.
Other institutions like the Taiwan International Arbitration Association (TIAA) also offer arbitration services and international dispute resolution.
Enforcement:
Domestic arbitration awards are enforceable in Taiwan’s courts, subject to limited judicial review (e.g., to ensure public policy standards are met).
International arbitration awards are also enforceable, although Taiwan's non-signatory status to the New York Convention may lead to challenges in enforcement in other jurisdictions.
2. Mediation
Legal Framework:
Mediation in Taiwan is widely used, especially for family law disputes, commercial disputes, and labor disputes.
The Mediation Law of 2005 regulates court-annexed mediation, which allows judges to refer cases to mediation in an effort to facilitate settlements before proceeding to full trial.
The Taiwanese Civil Procedure Code also encourages parties to resolve disputes through mediation during the course of litigation.
Mediation Process:
Mediation in Taiwan typically involves a neutral third-party mediator, who helps the disputing parties reach a mutually acceptable agreement.
In many cases, mediation in Taiwan is court-ordered and occurs before or during the litigation process. A judge may suggest or refer the case to a mediator in order to try to settle the matter before judicial hearings begin.
Mediation in Family Law:
Family mediation is particularly common in Taiwan, where disputes related to divorce, child custody, and inheritance are often mediated to avoid lengthy litigation.
The Family Court in Taiwan encourages mediation before proceeding with formal adjudication in family law cases. If parties reach an agreement, the court may issue a final order based on the terms of the mediation.
Commercial Mediation:
Mediation is also gaining popularity in commercial disputes, especially for businesses looking to avoid costly and time-consuming litigation.
3. Conciliation
Labor and Employment Disputes:
Conciliation is an important ADR tool in Taiwan, particularly in labor disputes. The Labor Standards Act and the Labor Dispute Mediation and Arbitration Act encourage conciliation between employers and employees to resolve conflicts, such as wage disputes, wrongful termination, and workplace discrimination.
If conciliation fails, the dispute can be escalated to arbitration or a labor tribunal.
Conciliation in Family Law:
Conciliation is also applied in family law matters, similar to mediation, where the focus is on reconciliation before court intervention.
🏛️ Judicial Support for ADR in Taiwan
Court-Annexed Mediation:
The Taiwanese courts strongly encourage mediation and conciliation before litigation proceeds. This is particularly common in family law, civil, and labor disputes.
Court-ordered mediation is a mandatory step in many cases, where the court will refer parties to a professional mediator before the case can proceed to trial.
If mediation results in a successful agreement, it can be recorded as a court order, making it enforceable as if it were a judgment.
Court’s Role in Arbitration:
Taiwanese courts can assist with arbitration-related matters, such as the appointment of arbitrators, granting interim relief, and setting aside arbitration awards that do not meet legal requirements (such as if an award violates public policy).
The courts’ role in arbitration is typically supportive, providing a backstop for enforcing agreements and protecting due process.
🌍 International Influence on ADR in Taiwan
UNCITRAL Model Law:
Taiwan’s Arbitration Act is largely modeled on the UNCITRAL Model Law, which helps facilitate international arbitration practices and provides a framework for fair, transparent procedures.
International Arbitration:
While Taiwan is not a signatory of the New York Convention (which governs the enforcement of international arbitration awards), it does follow internationally recognized standards for international arbitration and has agreements with some jurisdictions for cross-border enforcement of arbitration awards.
📈 Trends and Developments in ADR in Taiwan
Increasing Use of ADR:
ADR, especially mediation, is growing in popularity in Taiwan due to the increasing desire for quicker, more cost-effective resolutions to disputes. Commercial mediation is becoming more common as businesses seek to avoid long, drawn-out litigation.
ADR in Family Law:
Family disputes in Taiwan, particularly in cases involving divorce, child custody, and inheritance, are increasingly being resolved through mediation. The Family Court plays a significant role in promoting settlement through mediation before formal adjudication.
Arbitration for Commercial and International Disputes:
Taiwan is positioning itself as a key player in international arbitration in the Asia-Pacific region. Arbitration has been increasingly recognized for resolving cross-border commercial disputes, with institutions like the Chinese Arbitration Association (CAA) offering both domestic and international arbitration services.
📝 ADR Institutions in Taiwan
Chinese Arbitration Association (CAA):
The CAA is the main institution in Taiwan for arbitration, providing arbitration services for both domestic and international disputes. It also offers mediation and other ADR services.
Taiwan International Arbitration Association (TIAA):
The TIAA offers international arbitration services and is a key player in commercial and investment disputes involving Taiwan.
Taiwan Mediation Center:
The Taiwan Mediation Center is an institution that provides mediation services in various fields, including family, commercial, and labor disputes.
Labor Dispute Mediation and Arbitration Committee:
This body is responsible for resolving labor disputes through conciliation and, when necessary, arbitration.
📊 Challenges and Opportunities for ADR in Taiwan
Awareness and Education:
While ADR is well-established in Taiwan, increasing awareness and education about ADR options, especially in commercial sectors and local communities, remains a key area for improvement.
Cultural Acceptance:
Taiwanese culture places high value on harmony and consensus, making mediation and conciliation relatively successful methods for resolving disputes. However, there may still be resistance to these methods in certain sectors that prefer formal adjudication or litigation.
Continued Development:
Taiwan is expected to continue expanding and improving its ADR systems, especially international arbitration and mediation, as the country becomes more integrated into the global economy and legal community.
RELATED Blog
0 comments