Articles from December 2007
Taiwan to Increase Fund Investment Cap for Derivatives to 40%
The Financial Supervisory Commission has announced that it intends to amend Taiwan's Regulations Governing Offshore Funds ("Offshore Regulations") so that the Commission will have the power to set limits on how much an offshore fund registered in Taiwan can invest in derivative products. Previously the investment cap for these products was 15% of the fund's net asset value subject to certain other technical restrictions and restrictions on derivative products based on Chinese or Taiwanese financial instruments. Please see Article 23 of the current Offshore Fund Regulations for further details. The translation is by Winkler Partners.
In the announcement, the Commission notes that its policy objectives include giving the Commission greater flexibility to change the cap in the future and to harmonize the caps for offshore funds and domestic ones.
In its notes to the proposed revision to Article 23, the Commission note that its short term goal is to raise the cap of derivative product investments to 40%. The long term goal is to update Taiwan's fund regulatory regime to comply with European Union's UCITS Ⅲ requirements.
The statutory period of public comment on this amendment expires on 2 January 2008. Please contact Shan Lee at +886-2-2311-2345 ext. 33 for further details.
Winkler Partners has translated and maintained official translations of Taiwan's financial services laws and regulations since 2002. Please contact Paul Cox at +886-2311-2344 ext. 545 for further information.
Categorised in Update. Tagged: finance
Taiwan to Establish More Specialized Courts
Taiwan's new Chief Justice Lai In-Jaw announced yesterday (Dec. 17) at a year-end press conference that the Judicial Yuan has drafted legislation that will authorize the Yuan to create new specialized courts with limited jurisdiction to hear cases involving finance, construction, and medical disputes. The Intellectual Property Court, Taiwan's first specialized court, is scheduled to begin hearing cases in July.
The Expert Trial Participation Act bill will now be sent to the Legislative Yuan. It is the second major piece of legislation intended to reform the structure of Taiwan's court system along with the the Organic Act of the Judicial Yuan. But since the current legislative session ends this Friday ( Dec. 21), it is unlikely that either bill will pass until the new Legislature convenes after elections in January.
Categorised in Update.
Winkler Partners Green Office Profiled by Da Ai TV
Founding partner Robin Winkler discusses the successes and challenges WP has faced in greening our office on Da Ai Television's "Grassroots Bodhisattva" program at 6:00pm this Friday evening (Dec. 21). Da Ai, which broadcasts on Channel 9, is operated by the Tzu Chi Foundation, Taiwan's largest Buddhist charity and international relief organization. The interview is in Mandarin and will be repeated at 1:00AM on Dec. 24th.
Categorised in WP In the News.
Taiwan to Draft Sentencing Guidelines
The Chinese-language Liberty Times reported today that Taiwan's Judicial Yuan is drafting sentencing guidelines for judges that would recommend quantified ranges for existing statutory criminal penalties. According to the report, guidelines for larceny, telephone fraud, and copyright violations will become effective in July for an evaluation period.
Former Minister of Justice Chen Ding-nan and the Judicial Reform Foundation expressed concerns of excessive leniency in sentencing to the Judicial Yuan some three years ago.
For example, larceny in Taiwan is subject to a maximum statutory sentence of five years. However, in practice, 86 percent of convicted offenders receive sentences of less than one year.
Another example is the serious problem of telephone fraud that has plagued Taiwan in recent years. Sophisticated criminal organizations take advantage of lax privacy laws to obtain personal information about consumers from banks, online shopping platforms, or telecoms and then use that information to convince consumers to remit funds using account-to-account ATM transfers.
The maximum statutory sentence is again five years, but in practice over half of all convicted offenders receive sentence of less than six months. Since criminal sentences of less than six months can be (and usually are) converted to a fine, all but the most indigent offenders sentenced to less than six months do not serve time in prison.
Light sentences for intellectual property crimes that are then converted to fines have also been a major complaint of international rights holders for many years. In its 2007 White Paper on intellectual property issues, for example, the American Chamber of Commerce in Taipei, for example, stated that
The judiciary has not taken advantage of the range of sentencing opportunities made available by the body of Taiwan intellectual property law. Instead, the courts continue to render enforcement of IP laws ineffective by letting off most convicted IP offenders with light, suspended sentences, and low fines that do little to discourage counterfeiting.
The same paper also noted that light sentencing and low fines have been a perennial issue for the Chamber for the last 10 years. In 2006, Judicial Yuan statistics show that 46 percent of those convicted of criminal copyright infringement were either fined or had their sentences of less than six months converted to fines.
In response to these concerns, the Judicial Yuan is drafting a set of Reference Sentencing Guidelines for judges that are inspired by the US's Federal Sentencing Guidelines. It should be noted, however, that Taiwan's Guidelines are not compulsory because they are administrative guidelines promulgated by the Judicial Yuan rather than statutory requirements enacted by the Legislature.
While some judges believe that sentencing guidelines violate judicial independence guaranteed by Article 80 of the ROC Constitution, others believe that Judicial Yuan Interpretation 530 allows the Yuan to issue binding sentencing guidelines without a statutory basis.
The inclusion of sentencing guidelines for violations of the Copyright Act is of special interest to foreign right holders because they are scheduled to come into effect in July when Taiwan's new Intellectual Property Court begins hearing cases.
In a broader perspective, the explicit references to the US sentencing laws by proponents of sentencing guidelines as well as citations of United States v. Booker suggest the growing importance of the US legal system for Taiwan in areas other than commercial law. While economic ties between the US and Taiwan have created a much-criticized hybrid by injecting concepts from the Anglo-American legal tradition into Taiwan's continental legal system modeled closely on German and Japanese law, the proposed guidelines show that legal practices from the US are beginning to seep into areas such as criminal law that have remained closer to their origins in German law.
Categorised in Update. Tagged: copyright , criminal
Winkler Partners Profiled on Taiwan Public Television
A story profiling Winkler Partners' efforts to green our office and reduce carbon emission will be broadcast in Mandarin on Taiwan Public Television's Our Island program Friday Dec. 14th at 9:00pm.
Our Island, which has been on air since November 1998, covers environmental issues in Taiwan. Recent stories have included features on the Formosa Plastic Group's controversial steel mill in Yunlin County and the deteriorating quality of Taiwan's agricultural land. Past programs can be be viewed online.
Categorised in WP In the News.
Partner presents report to INTA Board
On November 7, as the chair of the Design Rights Subcommittee of International Trademark Association's (INTA) Emerging Issues Committee, WP's Peter Dernbach presented the Subcommittee's report to the INTA Board at the INTA's 2007 Leadeship Meeting held in Orlando Florida. The report addressed areas in which the legal regimes protecting designs complement or conflict with the laws protecting trademarks.
The Design Rights Subcommittee recommended that INTA continue to follow the issues in this developing area by extending the mandate of the Subcommittee. Among these was a recommendation that in its next term the Subcommittee focus on a pair of cases in the US courts that appear to be reviving the notion that the expiration of a design patent precludes subsequent protection of the design as a trademark. This is counter to the consensus in most other jurisdictions, and has serious implications for trademark and design owners.
The INTA Board accepted the Subcommittee's report and agreed with its recommendations.
For the 2008-2010 term, Peter has been appointed to the East Asia and Pacific Subcommittee of the Non-Traditional Marks Committee. This subcommittee will look at the status of protection for non-traditional marks (e.g., sounds, scents) in East Asia and the Pacific.
