Taiwan’s laws and regulations do not expressly stipulate on how to determine jurisdiction over international disputes. In practice, the courts generally address this issue by applying the “analogy theory.” Under this theory, if any of the Code of Civil Procedure rules concerning national jurisdiction, after being applied by analogy to a dispute with foreign element, can afford jurisdiction to a Taiwanese court, then the court can take jurisdiction over the dispute, unless the court considers itself an inappropriate forum, or a “forum non conveniens (FNC).” Under the doctrine of FNC, a court can dismiss a lawsuit without substantial trial if it foresees huge procedural difficulties in trying the case and finds another forum that can better protect the parties’ rights and the public interest.
When the scenario shifts from an international dispute to a cross-Taiwan Strait dispute, does the analogy theory, especially the FNC-test, still apply, and how does it apply? Recently, in a judgment on a cross-Strait copyright infringement suit, the Supreme Court provided an in-depth answer. Soft-World Int’l Corp. v. Hangzhou Bianfeng Network Tech. Co., Ltd., 110 Tai Kang 2, Taiwan’s Supreme Court (Nov. 2021).
The plaintiff in this case is a famous Taiwanese game developer that created the role-playing game “Wulin Legends,” which is hugely popular, and much plagiarized also, in East Asia. Accusing a Hangzhou-based Mainland Chinese company of infringing their copyrights in “Wulin Legends,” the Taiwanese company filed a civil lawsuit with the IP and Commercial Court (the IPC Court). After applying by analogy the rules in the Code of Civil Procedure which support its jurisdiction over this dispute, the IPC Court dismissed the complaint on the ground that it was an FNC. The plaintiff appealed all the way up to the Supreme Court and then the case was remanded to the IPC Court. Afterwards, observing the Supreme Court’s instructive opinion, the IPC Court determined that the doctrine of FNC should not bar its jurisdiction over this case. Soft-World v. Hangzhou Bianfeng Network, 110 Min Kang-Geng-(1) 2, Taiwan’s Supreme Court (Nov. 2021).
As the judgments show, concerning the issue of jurisdiction over cross-Strait disputes, the IPC Court and the Supreme Court adopted the same approach, which is the analogy theory described above. In the FNC test part, they both agreed that (1) the convenience of the defendant to respond to the lawsuit should be weighed against (2) the convenience of evidence collection and (3) the benefit of enforcement of the judgment in Mainland China. Obviously, this three-factor test is a modification of the counterpart FNC test for determining jurisdiction over international disputes.
However, when this test is applied in real cases, uncertainties may arise. In this lawsuit, prior to the Supreme Court’s decision, the IPC Court held that, considering the first two factors, it would be inconvenient for the parties to litigate this dispute in Taiwan where their accused game had been taken down, not to mention the Mainland Chinese defendant has no office in Taiwan. Instead, leaving this case to a Mainland court would be a more practical solution, as infringement activities were assertedly still occurring there. Further, from the perspective of enforcement, a Mainland Chinese court (e.g. where the defendant’s office was located) would be, again, a more appropriate forum.
The Supreme Court viewed these issues differently. First, represented by a Taiwan lawyer, the Mainland defendant had no difficulty in answering the lawsuit. Second, when filing the lawsuit, the Taiwanese copyright holder had downloaded the accused content of the online game and, based upon such content, had prepared an infringement analysis submitted together with the complaint. By these acts, the plaintiff had fulfilled its initial burden of proof and the court was hence able to try this case at least on the issue of infringement. Third, by virtue of a still valid decree from the Mainland’s Supreme People’s Court on enforcement of Taiwan courts’ judgments, it is unlikely that an IPC Court’s judgment on this case in the plaintiff’s favor will be unenforceable in the Mainland, whether the judgment contains an injunction order or a damages award or both. Further, the Supreme Court reminded that it would be unfair to the plaintiff and detrimental to the public if the Taiwanese plaintiff were denied the right to sue in Taiwan—where the infringement actually occurred.
Takeaways
As can be inferred from the Supreme Court’s opinion, the second factor, namely the convenience of evidence collection, plays a critical role in the FNC test, at least in the current era. As such, from the plaintiff’s perspective, to decrease the uncertainties in a Taiwanese court’s application of the FNC test in a cross-Strait dispute, it is imperative to gather and secure as sufficient infringement evidence as possible before entering the court, especially when the infringement occurs primarily in the cyberspace.