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Act Governing the Provision of Judicial Assistance at the Request of Foreign Courts

Clients often ask whether foreign judgments can be enforced in Taiwan and how to serve foreign legal papers. The statutory basis for both processes is the Act Governing the Provision of Judicial Assistance at the Request of Foreign Courts, which is translated into English here by Paul Cox of the WP Translation Department. Text in square brackets “[]” is added by the translator for clarification or readability. The Chinese original is here.
An earlier translation appears in the out of print A Compilation of the Laws of the Republic of China (Taipei, 1961) vol. 1.
Act Governing the Provision of Judicial Assistance at the Request of Foreign Courts
(Promulgated 25 April 1963)

Article 1
Unless otherwise specifically provided by a treaty or a law, a court rendering assistance upon the request of a foreign court in a civil or criminal matter shall do so in accordance with this Act.

Article 2
Assistance rendered by a court upon request in a civil or criminal matter shall not violate any law or regulation of the Republic of China.

Article 3
The matter requested shall be transmitted in writing through a diplomatic agency.

Article 4
The home country of the requesting court shall declare that an ROC court encountering a same or similar matter and needing to request assistance ought to be rendered equivalent assistance.

Article 5
An assisting court serving process relating to civil or criminal litigation shall do so in compliance with the provisions of the ROC Code of Civil or Criminal Procedure concerning service.
[A foreign court] requesting service shall specify in the letter of request [i.e. letter rogatory] the name, nationality, and domicile, residence, or office or place of business of the person to be served.

Article 6
An assisting court investigating evidence relating to civil or criminal litigation shall do so in accordance with the purpose of the request and with the provisions of the ROC Code of Civil or Criminal Procedure concerning investigation of evidence.
[A foreign court] requesting investigation of evidence shall specify in the letter of request the names of the parties to the litigation, the types of evidentiary method, the names, nationalities, domiciles, residences, or offices or places of business of the persons subject to investigation, and the matters to be investigated. If it is a criminal case, a summary of the case shall be attached.

Article 7
If the letter of request and other relevant documents in a requested matter are in a foreign language, Chinese translations shall be attached, with annotations stating that they are true and accurate translations of the originals.

Article 8
Fees relating to service or investigation in a civil matter shall be as set forth in ROC laws and regulations applicable to assessment of fees. In a criminal case, fees shall be calculated on the basis of the actual expenditures of the assisting court, and reimbursed by the home country of the court that requested the assistance.

Article 9
This Act shall come into force from the date of its promulgation.
For questions about this translation, please contact Paul Cox at +886-(0)2-2311-2345 ext. 545.

Robin Winkler Interviewed by Bloomberg News

Founding partner Robin Winkler noted in a recent interview with Bloomberg News that major new development projects approved by the Cabinet between 2005 and 2007 will increase Taiwan’s carbon emissions by 43%. Taiwan was recently identified by Carbon Monitoring for Action as having the world first and fourth biggest power plants as measured by carbon emissions. Robin is a former member of Taiwan’s Environmental Impact Assessment Commission and an expert on Taiwan’s environmental laws and development policy.

TIPO Invalidates Trademark Registration of Confucius

A recent wire service news story incorrectly reported that the Taiwan Intellectual Property Office (TIPO) “…has decided to revoke a patent registration request…[for]… the use of the name of the ancient Chinese thinker Confucius.” What the TIPO has in fact done is invalidate a trademark registration of the name Confucius by the Office of the Chinese Language Council International, a corporate entity directly administered by China’s Ministry of Education.

According to the TIPO, the Chinese Language Council applied to register “Confucius” as a trademark for educational services provided by the Council’s international chain of Chinese language teaching centers known as Confucian Institutes. The TIPO published the trademark registration but after publication, the TIPO’s internal quality control working group questioned the appropriateness of the registration. An internal review process determined that the name “Confucius” lacked distinctiveness as a marker identifying the origin of educational services and products and TIPO invalidated the registration. The Chinese Language Council is now being asked to submit comments on the invalidation.

If the invalidation is sustained, the Chinese Language Council can appeal to the Ministry of Economic Affairs. Should the Ministry deny the appeal, the Chinese Language Council can seek relief by filing an action in Taiwan’s administrative courts. It should be noted that Chinese applicants have standing in Taiwan to file for trademark registrations under the TIPO’s Operational Points Regarding Application for Patent and Trademark Registrations in Taiwan by Mainland Chinese People and that since 1994, more than 3,000 trademarks have been successfully registered by Chinese applicants.

Despite this invalidation, the TIPO reaffirmed the general principle that historical names such as “Lincoln” and “Franklin” may be registered for products such as cars and mutual funds. It intends to ask for expert opinion on international practice and will use this advice when it amends its Main Points for Examination of Distinctiveness of Trademarks next year.

For further information or to comment in the proposed amendments, please contact Peter Dernbach at +886-2-2311-2345 ext. 222.

Winkler Partners Environmental Impact: Baselines 2004-2006

As part of a firm-wide commitment to reduce our environmental impact, Winkler Partners collects data reflecting its energy and resource conservation efforts compiled in a set of metrics. These include figures for electricity, gas and water use, measurements of waste and recyclables, as well as an overall carbon footprint that reflect the entirety of its business activities (including calculations of for carbon produce by transportation to and from work and overseas business trips).

While some preliminary sustainability efforts began at the firm as early as 2002 when its offices were moved to the current location, the collection of quantifiable data began in 2004. Therefore, 2004 serves as a baseline for comparison with future data. It should be noted that from 2004 to 2006 there were no significant changes in office facilities or equipment that would affect energy or resource use. Also during this period the number of staff has fluctuated minimally while revenue rose by approximately 30 percent. The following figures set out baselines for water, electricity, gas, and material resource use by the firm between 2004 and 2006.

Water

Winkler Partners has dramatically reduced its water use through basic conservation methods, with water use down almost 40% between 2004 and 2006. With the addition of water-efficient toilets and a rooftop catchment system for rainwater collection in 2007, we expect water use this year to drop 60% compared to 2004 levels and perhaps as high as 80% in 2008.
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Comparison of Water Use and Savings (2004-2006)
1 unit of water = 1 square meter or 1000 litres

  • 2005: 774 units of water saved over 2004
  • 2006: 133 units of water saved over 2005
  • 2004-2006 1681 units (1,681,000L) of water saved. (on 2004 baseline)


Electricity

Through simple conservation measures, Winkler Partners has been able to reduce its use of electricity by 15% between 2004 and 2006. Current figures for 2007 will likely see that number increase to 20% over the 2004 benchmark data.

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Comparison of Electricity Use and Savings (2004-2006)
1 unit of electricity=1000 watt hours (Wh) =860 kilocalories (Kcal)

  • 2005: 3220 units of electricity saved over 2004
  • 2006: 15822 units of electricity saved over 2005
  • 2004-2006: 22,262 units of electricity saved.(on 2004 baseline)

Gas
The use of natural gas at Winkler Partners increased substantially between 2004 and 2005 due to the addition of daycare facilities that now serve four preschool children. Since that time, however, conservation measures have helped reduce the amount of gas used and current figures show gas use in 2007 should return to 2004 levels.

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Comparison of Gas Use and Savings (2004-2006)
1 unit of gas = 1 square meter in volume

  • 2005: increase of 1001 units used over 2004
  • 2006: 50 units of gas saved over 2005
  • 2004-2006: overall increase of 151 units.

2006 saw NT$750 in savings over 2005 (approximately NT$15 per unit) but a total of approximately NT$2,265 increase over 2004.

Waste and Recyclables

No program for sustainability would be effective without tackling the issue of material consumption. Winkler Partners has set a target to become a “zero waste” office and seeks to decouple material intensity from profitability. Metrics were only put into use this year so we are currently unable to assess the amount of progress made.

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Resource Recycling Figures between Nov. and 2006 and Jan-2007
For more information on the Winkler Partners substainability program, please contact Mark McVicar at +886-2-2311-2345 ext. 456

Landmark Prosecution for Textbook Copyright Infringement

The Chinese-language United Daily News reported today (8 Nov.) that Taichung prosecutors have indicted a college student for violating Taiwan’s Copyright Act by having a print and copy shop make four copies of extensive extracts from a textbook on marketing management. The prosecutors are asking the court to sentence the student to 20 days of detention.

While that sentence is largely symbolic since most sentences of less than six months can be converted to a fine, the prosecution itself is significant because prosecutors have traditionally enforced the copyright against the print shops that accept orders to copy textbooks rather than the students who commission the copying.

The copying of textbooks at print and copy shops located near universities has been a longstanding issue for foreign rights holders. In the past, prosecutors have cited the fair use provisions of Taiwan’s copyright law and high textbook prices as reasons not to prosecute students who have textbooks copied. The Taichung indictment is the first of its kind and while prosecutors claimed that evidence connecting the copied textbooks to the accused student compelled them to indict, this milestone indictment suggests increased willingness to enforce Taiwan’s copyright law against end users.

For more information in IP enforcement in Taiwan, please contact Christine Chen at +886-2-2311-2345 ext. #307.

Non-Compete Clauses in Employment Agreements

Once mainly found in the high tech industry, non-compete clauses are now routinely added by Taiwanese employers in a variety of industries. While employers should consider adding non-compete clauses as part of their general intellectual property protection strategy, both employers and employees should be aware that many non-compete clauses in Taiwan are drafted too broadly and may be void or only partially enforceable.
As a matter of Taiwanese law, the CEO (usually known as a “General Manager”) of a company and members of its board of directors are prohibited from engaging in business activities that would compete with their company’s own business while they are employed by or on the board of that company.

Although Article 15 of the ROC Constitution guarantees the right to work, Taiwan’s Council of Labor Affairs and the courts have held that the freedom of contract and Article 23 of the Constitution permit employers and employees to agree to limit the employee’s right to work with non-compete clauses. This limitation is however subject to the following principles:

  1. The employer must have an interest that is protected by the non-compete clause. If an employer does not have business secrets that it needs to protect, or if the alleged business secrets do not merit the degree of protection afforded by a non-compete clause, the employer may not bind the employee with a non-compete clause.
  2. There must be a likelihood that the employer’s secrets will be disclosed because the employee changes jobs. If the employee is in a relatively junior position where she does routine work and can be replaced without undue difficulty, her employment by a competitor will not cause disclosure of business secrets and her right to seek new employment may not be restricted with a non-compete clause.
  3. The scope of the non-compete restrictions must be reasonable. This standard applies to the length of the non-compete restriction, the work to which it applies, the employers for whom the employee cannot work, and the applicable region. For example, an agreement in which the employee agrees not to work for another employer in the semiconductor in any capacity worldwide would be deemed unreasonable and therefore unenforceable. But if the same agreement provided that the employee should not accept employment with a competitor in Taiwan for two years following the end of the current employment relationship, the courts would tend to find the agreement enforceable. This reasonableness requirement along with the following consideration requirement are the most commonly fatal terms in non-compete agreements.
  4. The employee must receive consideration for his loss caused by agreeing to the non-compete clause. This should be in the form of a higher salary, stock option, or other forms of compensation specifically tied to the non-compete clause. It would be obviously unfair to require the employee to restrict his right to work without receiving something in exchange.
  5. Breaches of non-compete clauses must be substantive. When an employee breaches the non-compete clause in an employment contract, the breach must be malicious and in bad faith. Examples of substantive and enforceable breach would include leading an entire team of employees to a competitor or establishing a new competing firm using proprietary business processes, technology, or financial information. In theory, substantive breach should have bearing only on the determination of damages to be awarded rather than effective of the contract. In practice however, the courts have made the extent of the breach a factor in determining whether the non-compete clause is effective.

Both employers and employees should be aware that the courts have exercised considerable latitude in interpreting these principles in the contexts of different industries and individual corporate cultures. In some cases, the courts have used these guidelines to carve more reasonable non-compete terms out of employment contracts that the court has determined are excessively broad.

As Taiwan shifts to a more innovation-based economy, employment contracts that seek to protect intellectual property rights with non-compete agreements have taken on increased importance. Neither employers nor employees should lightly enter into such agreements, and if they do, the courts will be concerned that both parties have fully understood and discussed the need for the agreement and its specific terms in good faith.
Employment law is rapidly evolving in Taiwan, both human resource professionals and prospective employees should be especially cautious about mechanically applying standardized non-compete language that may not in fact be enforceable.

For more information on non-complete clauses and other employment law issues, please contact Liu Yen-ling at +886-2-2311-2345 ext. 543.

EY Approves Draft Amendments to Securities and Exchange Act

The Executive Yuan has approved amendments to Articles 21-1, 36, and 157 of the Securities and Exchange Act and will now send the proposed amendments to the Legislature.

Article 21-1 currently authorizes the Financial Supervisory Commission to enter into agreements with its counterparts in other jurisdictions relating to information exchange, technical cooperation, and law enforcement investigations. Under this Article, the Commission may also request corporations, organizations, and private individuals to provide it with the information it needs to carry out these agreements. The proposed amendment to Article 21-1 makes compliance with the requests compulsory.

Article 36 sets out reporting requirements for listed companies. Currently, listed companies are required to issue audited and certified financial reports within one month of the end of the first and third quarters. In addition, they are required to issue an audited and certified financial report which has also been approved by its board of directors within four months of the close of the fiscal year. In practice, this arrangement creates a six month gap with no financial reporting between the end of October when the Q3 financial report is released and the end of April when the year end financial report approved by the board of directors is issued. The proposed amendment would require year-end financial reports to be issued by the end of March, thereby reducing the six month reporting gap to five months.

Article 36 is also amended to create a mechanism by which listed companies can apply to the Commission to delay issuing their financial reports. Approval may be granted in cases where a listed company has been placed in regulatory receivership or the certifying accountant has been disbarred. These measures are believed to be responses to the collapse of the Rebar Group in early 2007 during which the Chinese Bank, which was controlled by the Group, was placed in in regulatory receivership and accountants who had certified financial reports for Group companies were disbarred. Several Group companies have also been fined for failing to comply with Article 36 reporting requirements.
Article 157 will be amended to impose an 18 hour lockup period after material information is publicly announced during which company insiders cannot trade company shares. The current lockup period is 12 hours. Company insiders are defined as directors, supervisors, corporate officers, holders of more than 10 percent of the company’s share and key employees.

While this change is intended to strengthen anti-insider trading regulations after several highly publicized indictments for insider trading by insiders at a major financial group and a high tech company in 2007, the proposed amendments to Article 157 also introduce a new defense against insider trading charges. If a corporate insider can show that she has been making scheduled trades for the same amount for a period of six months before the public announcement of material information, or that identical trades have been made by a set formula during that same period, the trades may not be deemed insider trading.

It should be noted that despite its well-deserved reputation for partisan deadlock, the Legislative Yuan has amended the Securities and Exchange Act in each of the past three years, most extensively in 2005.

For further information on these amendments to the Securities Trading Act, please contact Shan Lee at +886-2-2311-2345 ext. 303.

Draft Finance Company Act Sent to Legislature

Taiwan’s Executive Yuan approved its long-awaited draft of the Finance Company Act on Oct. 31st. Drafts of the Act have been circulating between various agencies for more than ten years as the government has tried to find the right formula to meet its two major policy objectives for the legislation: providing new non-bank sources of financing for Taiwan’s many and effectively regulating underground loan businesses by allowing at least some to legalize.

According to coverage in the Chinese-language China Times, the Act permits finance companies to make loans, guarantee contractual performance, and discount bills. While maximum annual interest rates for consumers are capped at the 20 percent, corporate interest rates can be as high as 30 percent.

New finance companies will require a permit from the Financial Supervisory Commission to register as a finance company. The Commission will then issue a business license to the duly registered finance company. The draft Act gives the Commission the power to set capital requirements for finance companies, and officials suggested that minimum capitalization could be set at around NT$5 billion (c. US$150 million), noting that in 2006 Taiwan had 48 firms of this scale legally engaged in financing transactions or leasing.

The Act provides that companies currently approved to operate financed leasing, installment purchasing, and accounts receivable financing for ordinary businesses or financial institutions are eligible to become general purpose finance companies.

One of the major purposes of the Finance Companies Act is to regulate Taiwan’s underground loan businesses that often employ collection agencies with organized crime backgrounds. Larger illegal loan operations will now have the opportunity to become legal, but the draft Act imposes administrative fines of NT$500,000 (c. US$15,000) to NT$2,500,000 (c. US$75,000) on finance companies that collect debts using force, threats, or invasions of privacy or outsource collections to any third party that engages in these practices.

The draft Act also provides that finance contracts must be written and are void if they set an interest rate above statutory maximums. In addition, finance companies must provide a copy of the written agreement to the guarantor of any finance contract upon request and also must accept early repayment of principal. Without permission from the regulator, finance companies cannot outsource collections or assign debt to third parties.

Finance companies will be required to use the word ‘finance’ in the names of their firms, and their sales people will need to register with the Finance Company Industry Association.

In related coverage, the paper also interviewed Chailease Finance Co. Ltd.’s Chen Feng-long (陳鳳龍), who said that his firm believed that demand for non-bank financing was worth between NT$300 (US$9.2 billion) and NT$500 billion (US$15.4 billion). Chailease is Taiwan’s largest leasing firm. Chen said that if the Legislature passed the draft Act, his firm will apply to become a finance company.

Chen explained that the 24 members of the Finance Company Industry Association are currently allowed to engage only in asset-based financing for corporate customers. Under the draft Act, they would be able to do direct financing as well as lend to consumers. Another important change is that currently a leasing company’s total lending capacity to corporate customers is capped at 40% of its net assets. The draft Act does away with that cap.

The draft Act must now be passed by the Legislature to become law. It is expected that although legislators representing various interest groups affected by the draft Act will introduce amendments and possibly alternative versions, there is reason for optimism that it could be passed by the end of the year due to strong industry support.

For more information on the draft or the legislative process, please contact Steve Hanley at +886-2-2311-2345 ext. 620.

 

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