Foreword by the President of Judicial Yuan, Prof. Hsu Tzong-Li
As a maritime country, active domestic and overseas trade has always been a source of Taiwan’s vitality. A legal system that can draw basic game rules for business conduct and a judicial system that can implement the rule of law and effectively resolve private disputes are key conditions for economic and trade activities to flourish. Therefore, whether the judiciary can effectively respond to the needs of commercial activities can be said to have a bearing on the fitness and competitiveness of Taiwan’s economic and trade environment. Considering that commercial disputes are often highly complex and technical, and paying attention to the efficiency and predictability of dispute resolution, in the Meeting of Judicial Reform held in 2017, there were strong voice which believes that we should take advantage to assign commercial dispute to a court of special responsibility, and therefore Judicial Yuan since then has been required to promote the establishment of commercial court.
In fact, long before the Meeting of Judicial Reform in 2017, Judicial Yuan realized the needs of a professional commercial court. In 2015, a working team “Commercial Court Promotion Group” was set up to carry out the planning of various institutional designs. Members and staff in this team not only visited the United States, Japan, the Netherlands and Denmark, but also formed a sketch of adopting the legal systems of different countries and compared their advantages and disadvantages. This team also steadily consulted the academic and practical/business circles to establish policy guidelines in terms of several policy issues, including whether the Commercial Court should be classified as a high court level jurisdiction, should it deal with major civil business events only, and whether it will merge with the intellectual property courts, etc. Based on this, Judicial Yuan initiated a specific draft study in February 2018. After several meetings, discussions with further institutional planning and opinions were collected. In this year (June 2019), the drafts of “Commercial Court Procedure Rule” and “Intellectual Property and Commercial Court Organization Law” were passed by Judicial Yuan, and currently are in the Legislative Yuan for deliberation.
In the process of referring to and comparing the legal systems of various countries, the institutional experience of the Delaware State Court has undoubtedly had the most far-reaching impact on the appearance of the current draft of the “”Commercial Court Procedure Rule”, while the Delaware Supreme Court Retired Justice Randy J. Holland is a key figure who provides important guidance. Justice Holland has long studied corporate law and corporate governance. Likewise, Delaware has a reputation as “the corporate capital of the world”. It has a well-established legal system and its corporation law is widely regarded as a great reference for many countries. As early as 1986, Justice Holland was the youngest judge in the history of the Supreme Court of the state, and served for more than 30 years and enjoyed the longest term among all colleagues. In the past ten years, Justice Holland has always maintained communication with the judicial system of this country, so that we can use his profound business law and practical experience to understand the operation of Delaware’s commercial justice system. As of the commercial law issues and the various problems encountered, Justice Holland has provided valuable advice, both on academic and practical grounds constantly.
In terms of interactions over the past few years, after the establishment of the Commercial Court Promotion Group in 2015, Judicial Yuan sent personnel to Delaware to study the state’s oldest commercial court, the Chancery Court, and the commercial proceedings of the Superior Court. In the process, Justice Holland has always accompanied our delegation. Last year, Justice Holland also took the opportunity to come to Taiwan to deliver a keynote speech and visited Judicial Yuan to exchange views with me and the colleagues responsible for drafting business court legislation. This year, Justice Holland also accompanied Judicial Yuan’s delegation to the Superior Court of Delaware, so that we can better grasp the operation of Delaware’s commercial courts, which brought immediate results to the drafting process. As result, the current draft of the “Commercial Court Procedure Rule” incorporates many of the institutional characteristics of Delaware‘s commercial court, such as pre-trial mediation, e-filing system, expert witnesses and lawyer mandatory representation. In the words of the draft articles, it seems as if you can see the warm and wise figure of this old Taiwanese friend.
It can be expected that there will be many institutional and operational challenges in the future waiting for the commercial court mechanism. For example, disputes concerning the scope of jurisdiction and the implementation of expert witness systems in the draft are still subject to debate in Congress. Even if the legislation is passed, it is necessary to gradually put the professional manpower and software and hardware requirements to implement the commercial court system in a dynamic and volatile economic and trade environment, so that commercial courts can truly have the high professionalism and efficiency to adjudicate complex business cases. Fortunately, Justice Holland’s speech on the subject of commercial law in Taiwan for nearly a decade has now been assembled. In the content of this book, Justice Holland’s analysis of the key issues of the company law system not only helps the country to grasp the latest developments in this field from a broader and more in-depth perspective, but it is also the first-hand knowledge in the operation of the Delaware business law. These are the earnest advice to Taiwan from the wisdom of diagnosing of Taiwan’s legal system by Justice Holland.
For these reasons, I solemnly recommend it to all who care about Taiwan’s commercial law. Especially for those who care about commercial court issues, you can read these lectures carefully. I believe that by standing on the shoulder of this intellectual giant, we must be able to observe and have a deeper inspiration when thinking about the institutional prospects of Taiwan’s commercial law.