Contracting on the internetContract formation
Is it possible to form and conclude contracts digitally? If so, how are digital contracts formed and are there any exceptions for certain types of contract?
Generally speaking, in Taiwan, digital contracts/agreements can be formed by way of meeting of minds and other elements such as offer and acceptance, and these can be expressed and evidenced by way of electronic records, unless otherwise provided by law (eg, requirements regarding 'execution', 'writing' and certain other requirements, depending on the types of contracts or agreements.Applicable laws
Are there any particular laws that limit the choice of governing law, language of the contract or forum for disputes when entering into digital contracts? Do these distinguish between business-to-consumer and business-to-business contracts?
There are no general laws that limit the choice of governing law, language of the contract or forum for disputes when entering into digital contracts. However, the Consumer Protection Act (CPA, which provides for a relevant protection mechanism for customers) would apply if the contract is regarding consumption by a consumer. One of the guiding principles of the CPA is ‘full disclosure’ to customers, so if the CPA applies, it might not be appropriate for B2C e-commerce operators to use language other than the local language (ie, mandarin Chinese) for the contract with customers.Electronic signatures
How does the law recognise or define digital or e-signatures? Must digital or e-signature providers be registered or licensed in your jurisdiction?
Digital or e-signatures are governed by the Electronic Signature Act (ESA). Pursuant to the ESA, there are two types of electronic contracting that could address the relevant legal requirements of 'wet-ink execution (ie, by way of wet-ink signatures or chops)' or 'physical writing' under Taiwan law unless otherwise specified: digital signature (for wet-ink execution) and electronic document (for physical writing).
In the context of the ESA, digital signature is an electronic signature generated by the use of a mathematical algorithm or other means to create a certain string of digital data encrypted by the signatory’s private key that can be verified by a public key. On the other hand, documents may be executed in electronic form (ie, electronic document) once the following requirements are met:
- the consent of the counterparty has been obtained;
- the content of the documents can be displayed in its entirety;
- the content of the documents remains accessible for subsequent verification; and
- the use of electronic documents is not specifically excluded by other laws, regulations or public announcements of government agencies.
Specifically, under the ESA, if a digital signature is used, the contract must be evidenced by a certificate issued by a certification service provider in accordance with the requirements of the ESA. Such certificate service providers must refer to those that have been approved by the Ministry of Economic Affairs under the ESA.Breach
Are any special forums for dispute resolution or remedies available for the breach of digital contracts?
There are no forums for dispute resolution, nor remedies specifically available, for the breach of digital electronic contracts (as opposed to non-electronic contracts).
Financial servicesData retention
Are there any data retention or software legacy requirements in relation to the formation of electronic contracts?
Except for the data retention requirements under the Personal Data Protection Act and other laws and regulations (eg, accounting and tax-related laws and special requirements applicable to financial institutions) as well as the relevant requirements under the ESA for digital signature and electronic documents, there are no such requirements.