I Geographically, Taiwan is considered also to include certain smaller islands, including the Pescadores. 2 For a more detailed legal and diplomatic history, see Lin v. United States, 539 F. Supp. 2d 173, 174-76 (D.D.C. 2008); N.Y. Chinese TV Programs, Inc. v. U.E. Enters., Inc., 954 F.2d 847, 849-51 (2d Cir. 1992).

3 Treaty of Friendship, Commerce and Navigation, U.S.-China, Nov. 4, 1946, 63 Stat. 1299 (entered into force Nov. 30, 1948) (hereinafter Friendship Treaty). 4 See generally Chinese TV Programs, 954 F.2d at 850-51. 5 The Commentary to section 201 of the Restatement (Third) of Foreign Relations states that "[Taiwan's] authorities have not claimed it to be a state, but rather part of the state of China." Restatement (Third) of Foreign Relations § 201 cmt. f(1987); see also id. § 203 n.3 (noting that "Taiwan ... has continued to claim to be the legitimate govermnent of China"). Meanwhile, the PIZC claims sovereignty over Taiwan. (See infra § 4.)

6 Professor Crawford has written that "Taiwan is not a State because it does not claim to be, and is not recognized as such: its status is that of a consolidated local de facto government in a civil war situation," James Crawford, THE CREATI<>N or STATES IN INTERNATIONAL LAW 151 (1979), adding, however, that its Taiwan has "limited status in international law" by reason of its local autonomy. Id. at 102 & n.l. Proponents of an independent Taiwan would presumably contest these views. The plaintiffs in Lin urged a different theory altogether, namely that the people of Taiwan are subject to the sovereignty of the United States. See Lin, 539 F. Supp. 2d at 176-77. lan Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 91 (4th ed. 1990); see also Restatement (Third) of Foreign Relations § 206 (1987) (noting that a state has the "capacity" to enter into international agreements). 8 Memorandum on Relations with the People on Taiwan, reprinted in 1979 U.S.C.C.A.N 35, 75 (Dec. 30, 1979). This memorandum was issued during a Congressional recess. The Memorandum stated that, notwithstanding the termination of diplomatic relations with the Roc, the U.S. would still maintain "commercial, cultural and other relations with the people of Taiwan without official government representation and without diplomatic relations." Id. Towards that end, President Carter directed that "[e]xisting international agreements and arrangements in force between the United States and Taiwan shall continue in force," even after derecognition of the Roc. Id. Although the 1978 Memorandum has since been superseded, its essence continues in the form of subsequent executive memoranda on Taiwanese relations. See Exec. Order No. 12143, 44 Fed. Reg. 37,191 (June 22, 1979) (rescinding 1978 Memorandum and conforming executive arrangements to TRA); Exec. Order No. 13014, 61 Fed. Reg. 42,963 (Aug. 15, 1996) (updating 1979 memorandum and acknowledging the Taipei Economic and Cultural Representative Office ("TECRO") as successor to the Coordination Council for North American Affairs ("Cc:NAA")).

9 Schwinn Plan Comm. v. AFS Cycle & Co. (In re Schwinn Bicycle Co.), 190 B.R. 599, 607 n.12 (Bankr. N.D. Ill. 1995). �o See, e.g., Friendship Treaty, supra note 3, art. lv(l) (freedom ofRoc or U.S. persons to form corporations in the other contracting state); id. art. tV(2) (freedom of Roc or U.S. persons or corporations to engage in certain commercial activities and own certain categories of assets in the other state); id. art. vi(l) ("Throughout the whole extent of the territories of each High Contracting Party the nationals of the other High Contracting Party shall receive the most constant protection and security for their persons and property, and shall enjoy in this respect the full protection and security required by international law.").

� Chinese TV Programs, 954 F.2d at 853-54 (citing Arnbjornsdottir-Mendler v. United States, 721 F.2d 679 (9th Cir. 1983) (wherein the court held that the U.S. government could validly regard a treaty between Denmark and the United States as continuing to apply to Iceland, even after Iceland had declared independence from Denmark)).

�z See, e.g., Land Oberoesterreich v. Gude, 109 F.2d 635, 637 (2d Cir. 1940) ("[A] state must first achieve recognition by our governments, but once recognized, the foreign sovereign, its subjects and its citizens, including its corporations, may be suitors in our courts." (citation omitted)); Klausner v. Levy, 83 F. Supp. 599, 599-600 (E.D. Va. 1949) (diversity jurisdiction under § 1332(a)(2) and Article m, Section 2 is only available to a citizen of a state formally recognized by the executive branch of the U.S.). �3 22 U.S.C. § 3303(b)(7); see also id. § 3303(a) ("The absence of diplomatic relations or recognition shall not affect the application of the laws of the United States with respect to Taiwan, and the laws of the United States shall apply with respect to Taiwan in the manner that the laws of the United States applied with respect to Taiwan prior to January 1, 1979."). z Friendship Treaty, supra note 3, art. ill (providing for recognition of Taiwan-incorporated corporations); id. art. vi(4) (providing that "[t]he nationals, corporations and associations of either High Contracting Party shall enjoy freedom of access to the courts of justice and to administrative tribunals and agencies in the territories of the other High Contracting Party, in all degrees of jurisdiction established by law," and ensuring freedom to select counsel, to an extent "no less favorable" than the treatment extended to U.S. parties or other nationals). �5 See Chinese 1�V Programs, 954 F.2d at 852 (allowing a Taiwanese corporation to enforce rights under a copyright treaty predating derecognition by virtue of the TRn); Chairworks Taiwan Ltd. v. Candlertown Chairworks, Inc., No. 1:98 cv 240-C, 1999 U.S. Dist. LEXIS 22808, at * 11 (W.D.N.C. Mar. 19, 1999) ("Taiwanese corporations still enjoy the privileges of the judicial system of the United States"). In this regard, the effect of the TRA is fortified by executive memoranda stating that derecognition '"was not intended in any way to abrogate, infringe, or otherwise modify the right of natural and juridical persons from Taiwan to sue in the courts of the United States."' Chang v. Nw. Mem'1. Hosp., 506 F. Supp. 975, 978 (N.D. III. 1980) (quoting a letter from the Assistant Legal Adviser for Treaty Affairs of the State Department) (holding that Taiwanese nationals were entitled to sue in U.S. courts)).

'6 See, e.g., BP Chems. Ltd. v. Fomiosa Chem. & Fibre Corp., 229 F.3d 254, 266-68 (3d Cir. 2000) (finding Taiwanese law, and not New Jersey law, applied to an intellectual property dispute); Shin Crest PTE, LTD v. Am Ins. Co., No. 8:07-cv-1433-T-24, 2008 U.S. Dist. LEXis 20522, at * 10-12 (M.D. Fla. Mar. 17, 2008) (finding breach of contract and declaratory judgment claims time-barred under Taiwanese law). 17 C.f Good Earth Lighting, Inc. v. New Chao Fcng Indus. Co., No. 98 C 1442, 1999 U.S. Dist. LEXIS 1126, at *10, *13 (N.D. Ill. Jan. 29, 1999). 'a See also Modem Computer Corp. v. Ma, 862 F. Supp. 938, 949 (E.D.N.Y. 1994) (declining to stay, or dismiss on grounds of forum non conveniens, an action involving issues of Taiwanese law, even though a "foreign proceeding" involving some of the same issues was pending in Taiwan). 19 28 U.S.C. 55 1330, 1602-1611.

=°Seealso Millen Indus., Inc. v. Coordination Council for N. Am. Affairs, 855 F.2d 879, 883 (D.C. Cir. 1988) 855 F.2d at 883; Tei Van Sun v. Taipei Econ. & Cultural Representative Office, 34 F. App'x 529, 531 (9th Cir. 2002) (finding Taiwanese governing authorities immune from suit before U.S. courts because of lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act of 1976). 21 See 22 U.S.C. § 3309. zz 22 U.S.C. § 3305. According to the AIT website, "[t]he Department of State, through a contract with the Institute, provides a large part of Anr's funding and guidance in its operations." Am. Inst. in Taiwan, Introduction to the American Institute in Taiwan, http://www.ait.org.tw/en/about-Ait/aitintro.asp (last visited Aug. 9, 2008). 23 Am Inst. in Taiwan, supra note 22.

24 The actual result in Millen Industries was that the D.C. Circuit remanded for further proceedings to determine whether the CcrlAA's actions may have fallen within the "commercial activities" exception to sovereign imnunity. See 855 F.2d at 885-86. The ultimate resolution of the case is not reported or germane to the discussion here. z= See Dupont Circle Citizens Ass'n v. D.C. Bd. of Zoning Adjustment, 530 A.2d 1163, 1170-71 (D.C. 1987) (holding that, although the U.S. Government had not officially designated the CCNAA as a foreign mission, the TRA, by its terms, required that "[ujnder the laws of the United States, Taiwan, and thus CCNAA, is to be treated as if derecognition had not occurred," and should thus be construed as "requir[ingj that the [D.C. zoning authorities] treat any application by CCNAA for an office use as though it were an application for a chancery use.") 26 Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, 137 L.N.T.S. 11. 27 The PRC ratified the Warsaw Convention "with the declaration that the Convention 'shall of course apply to the entire Chinese territory including Taiwan.'" Mingtai Fire & Marine Ins Co. v. United Parcel Scrv., 177 F.3d 1142, 1144 (9th Cir. 1999) (quoting 2 Christopher N. Shawcross & Kenneth M. Beaumont, Air Law A17 (Peter Martin et al. eds., 4th ed. 1977) (1997 supplement)). The Taiwanese governmental authorities have never purported to ratify the treaty.

28Seesupra note 6. z9 In a similar vein, President Carter's unilateral nullification of the Sino-American Mutual Defense Treaty between the U.S. and the Roc was challenged by Senator Barry Goldwater, along with other members of the U.S. Congress, before the U.S. Supreme Court in Goldwater v. Carter, 444 U.S. 996 (1979), in which Senator Goldwater contended that the President lacked the constitutional authority to abrogate a treaty without consulting Congress. In a plurality opinion authored by Justice Rehnquist, four members of the Court declined to rule on what they considered to be a non-justiciable political question that should instead be resolved between the Executive and Legislative branches of the U.S. Government. Id at 1003.

3o Until 1971, Taiwan's governmental authorities (the "Roc") enjoyed United Nations membership, and, indeed, a permanent seat in the Security Council, as the purported government of China. Since 1971, that seat has been occupied by the PRe. See Restatement 3d of the Foreign Relations Law of the U.S. § 222 n. 4. Seegenerally FED. R. Civ. P. 4(f)(l) (permitting service on foreign individuals under the Hague Convention or other international agreement); id. 4(h)(2) (corresponding provision for service on foreign corporations). 3z See Cosmetech Int'l, LLC v. Der Kwei Enter. & Co., 943 F. Supp. 311, 316 (1996); see also Taylor Made Golf Co. v. Carsten Sports, Ltd., 175 F.R.D. 658, 661 (S.D. Cal. 1997) (service on a Taiwanese company's general manager in Taiwan deemed effective). But see Fujitsu Ltd. v. Nanya Tech. Corp., No. C 06-6613 CW, 2007 U.S. Dist. LEXIS 13132, at *13-14 (N.D. Cal. Feb. 9, 2007) (service on a "receptionist" of a Taiwanese company was deemed ineffective; noting that Taiwanese law appeared to require service on "a manager of a corporation"); and Emery v. Wood Indus., Inc., No. Civ. 98-480-M, 2001 WL 274747, at *1-3 (D.N.H. Jan. 17, 2001) (opposite result where the parties apparently conceded that "Taiwanese law did not specifically authorize service by personal delivery" upon the defendant, prompting a finding - on the facts - that service on a Taiwanese corporation's "assistant manager" was insufficient). 33 See Ryan v. Brunswick Corp., No. 02-CV-0133E(F), 2002 U.S. Dist. LEXIS 13837, at *10 (W.D.N.Y. May 31, 2002) (authorizing service on a Taiwanese company "by regular mail, fax and/or email"); see also Atu, Inc. v. Kupo Co., No. 6:06-cv-327-Orl-28, 2006 U.S. Dist. LEXIS 96138, at *8 (M.D. Fla. Dec. 15, 2006) (upholding "alternative service" via mail on a Taiwanese corporation).

31See U.S. Dep't of State, Taiwan Judicial Assistance, available at http://travel.state.gov/law/info/judicial/ judicial_669.htm1 (last visited Aug. 9, 2008); see also id. (stipulating that the request and accompanying documents must be translated into Mandarin and accompanied by a check payable to the AIT). Service utilizing this procedure has been held to satisfy Rule 4(f)(2)(B). See Schwinn, 190 B.R. at 609-11; see also Fujitsu Ltd., 2007 U.S. Dist LEXIS 13132, at *15 (declining to dismiss based on previous failure to serve Taiwanese defendant on grounds that court had signed Letter Rogatory). �� In Strategir Technologies Pte., Ltd. v. Republic of China, a private litigant sought to confimi an arbitration award rendered against the Roc in a Singapore arbitration. No. 05-2311, 2007 U.S. Dist. LEXIS 34258, at *1 (D.D.C. May 10, 2007). The Roc objected, however, claiming it was entitled to sovereign immunity. The Court found that the Roc had not waived its right to immunity merely by agreeing to arbitrate in a jurisdiction outside the United States. Id. at *8-9 ("[T]he election to arbitrate in another country alone does not demonstrate the intent to waive sovereign immunity, (citing Creighton Ltd. v. Gov't of Qatar, 181 F.3d 118, 122-23 (D.C. Cir. 1999))). Although the Strategic court noted that the Roc is not a signatory to the New York Convention, id. at *9, it is not clear whether this was directly pertinent to its ultimate holding. 36 See, e.g., Marshall Islands-Taiwan BIT, art. 7 (providing for Ice or UNCrrRj\L arbitration of investor-state disputes); Belize-Taiwan BIT, art. 7 (same). The Marshall Islands and Belize apparently recognize the Roc and do not recognize the PRe.

� Formerly known as the Commercial Arbitration Association of the Republic of China, the CAA is one of four arbitration centers in Taiwan. The other three arbitration centers specialize in labor and construction industrial disputes. See Nigel N.T. Li & David W. Su, Arbitration in Taiwan, The Republic of China, in INTERNATIONAL Commercial ARBITRATION w ASIA, 369, 377 (McConnaughay & Ginsburg eds., 2d ed. 2006) (hereinafter Li & Su, Arbitration in Taiwan). 3A Id. at 377-78. The CAA's website includes a roster of arbitrators, grouped by profession and area of expertise, http://www.arbitration.org.tw/english/index.html. y See, veg., Hong-lin Yu, The Taiwanese Arbitration Act 1998, 15 Int'l AKH. 107 (1998); Li & Su, Arbitration in Taiwan, supra note 38 at 394. °" Id. Li & Su, Arbitration in Taiwan, supra note 38, at 394 lists this award as being US$33,300,000, or over one billion New Taiwan Dollars. 41 Judgment 89-Tai-Sheng-Tse-2677, Supreme Court, Roc, 2000. 4z The 1998 Act is available at http://www.arbitration.org.tw/english/index-8-2.html. 3 See, e.y,. Chapter III of the 1998 Act governing the arbitral proceedings, which draws heavily on UNCITHAL articles 21 (initiation of arbitration proceedings), 20 (place of arbitration), and 19 (arbitral procedure). See generally Yu, The Taiwanese Arbitratian Act 1998, supra note 40. 4^ Li & Su, Arbitration in Taiwan, supra note 38, at 377. Employing a narrow interpretation that the old Statute for Commercial Arbitration, some courts had refused to compel arbitration of agreements specifying the use of non- Taiwanese law, finding that the Statute for Commercial Arbitration only protected arbitration in Taiwan conduct in accordance with the statute's rules. Under the new 1998 Act, such an interpretation is no longer available. Id. ^5 1998 Act, Art. 38.

46See 1998 Act, arts. 47-51. 4� ALBERT JAN VAN DEN BERG, THE NEW YORK ARBITRATION CONVENTION OF 1958: TOWARDS A UNIFORM JUDICIAL Interpretation, III-5.1, at 359 (1994). 48 Id. Ill-5.2, at 369. ^9 Li & Su, Arbitration in Taiwan, supra note 38, at 397. 50 Decree 75-Tai-Kang-Tzu No. 335, Supreme Court, Taiwan, Roc 1986 (Chinese) (quoted in Li & Su, Arbitration in Taiwan, supra note 38, at 398 n.62). 11 Li & Su, Arbitration in Taiwan, supra note 38, at 398 n.62. 5z Li & Su, Arbitration in Taiwan, supra note 38, at 392. 53 Seegenerally, Jason Blatt, Mutual Recognition and Enforcement ofArbitral Awards in Mainland China and Taiwan: A Breakthrough in Cross-Strait Relations, 36 HONG KONG L.J. 585 (2006) (hereinafter Blatt, Mutual Recognition and Enforcement).

54 ACT GOVERNING RELATIONS BETWEEN PEOPLES OF THE TAIWAN AREA AND THE MAINLAND AREA (Republic of China) (1997), Art. 74. Ss Roc Arbitration LAW, 1994, Art. 58. 5' STATUTE Governing RELATIONS WITH HONG KONG AND MACAU. Art. 42 (2) [year]. 57 Li & Su, Arbitration in Taiwan, suyra note 38, at 399. R Supreme People's Court, Provisions on the People's Court's recognition of the Verdicts on Civil Cases Made by Courts of the Taiwan Province, Art. 19 et seq., approved at the No. 957 Session of the Judicial Committee of the Supreme People's Court on 15 Jan. 1998, effective 26 May 1998. Sy Blatt, Mutual Recognitiun and Enforcement, supra note 54, at 591. In particular, this unique status avoids questions of extending the Ppc's obligations under the New York Convention to Taiwan. Id. bo Id. at 598-99. 61 Id. at 598-99. 62 Ld. at 598. 63 Wong Yan-Lung, Sec'y of Justice, Remarks at a Conference Held at the Conrad Hotel, Hong Kong, (Nov. 28, 2005) (transcript on file with authors). ba Arbitrators from Hong Kong have been used in Taiwanese arbitrations before including, for example, the Spie Bahgnolles v. Ret-Ser arbitration, Case 85-Shang Jung-Sheng-Ai-Tse-50, CAA, 1996. Li & Su, Arbitration in Taiwan, supra note 38, at 394. �s Blatt, Mutual Recognition and Enforcement, supra note 54, at 589. ss China International Economic and Trade Arbitration Commission Arbitration Rules, Art. 3, available at http://www.cietac.org.cn/english/rules/rules.htm. ' See China Int Econ. & Trade Arbitration Conun'n, Works Of CIETAC, available at http://www.cietac. org.cu/english/introduction/intro 2.htm (last visited Aug. 9, 2008).

68 Id.