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	Fair Trade Commission Guidelines on Cases Involving Foreign Elements	Guidelines

Approved by the 227th Commissioners’ Meeting of February 21, 1996;
Amended by the 364th Commissioners’ Meeting of October 28, 1998;
by Fair Trade Commission Order (87) Kung Fa Tzu No. 04102 of November 7, 1998;
Amended by the 527th Commissioners’ Meeting of December 13, 2001;
by Fair Trade Commission Order Kung Fa Tzu No. 0910001327 of February 8, 2002

I. General provisions

1. These Guidelines are prescribed by the Fair Trade Commission (the Commission) for handling of cases involving foreign elements.
2. Unless otherwise provided by other laws or regulations, international treaties or agreements, or customary international law, these Guidelines shall apply when the Commission handles cases involving foreign elements under the Fair Trade Act (the Law).
3. The term “cases involving foreign elements” shall refer to matters where the complainant, respondent, investigated party, applicant, party filing report or party requesting official interpretation of the Law is a foreign enterprise.

II. Acceptance of cases involving foreign elements

4. When filing a complaint regarding violation of the Law, where foreign elements are involved, the complaint shall be prepared in Chinese language, specify the following, and be signed by the complainant:
   1. The name, age, gender, nationality, occupation and domicile of the complainant and respondent. Where the complainant is a juristic person or an organization with an administrator or representative, the following shall be included: the complainant's name, office, or business place, and the administrator's or the representative's name, age, gender, nationality, occupation and domicile. Registration document of the administrator or the representative, as certified by the competent authority, shall also be enclosed.
   2. Facts regarding the respondent's violation of the Law;
   3. Evidence; where the evidentiary documents are in a foreign language, a Chinese translation of which shall be submitted;
   4. A foreign enterprise shall appoint an agent domiciled within the Republic of China (R.O.C.) to handle on its behalf matters regarding filing the complaint against a violation of the Law by another enterprise. A power of attorney shall be enclosed with the complaint.
5. Where the complaint does not conform to the requirements mentioned in paragraph 4 above and such nonconformance is amendable, the Commission shall set a time limit and notify the complainant to amend or supplement the complaint.

   If the complainant is a foreign enterprise, the Commission may, when it considers necessary, specify a time period for the complainant to present the laws, regulations or customs under which a R.O.C. citizen or organization is entitled to similar rights in the complainant's home country.

   Where the complainant fails to amend or supplement within the time limit specified in the preceding two paragraphs, the Commission may terminate the investigation.

6. The complainant shall present facts and evidence to prove the extent of influence on Taiwan’s market competition resulting from the respondent's alleged restrictive or unfair competition act engaged within or outside of the territory of the R.O.C. An explanation shall be made regarding the likelihood of violation of the Law by the respondent.
7. Upon receipt of a foreign enterprise's complaint against violation of the Law by a Taiwanese enterprise, the Commission shall decide whether to accept the case in accordance with Article 47 of the Law; provided, however, where no prior case is found in which the complainant's home country denied the [reciprocal] protection for an enterprise of this country, the Commission may decide ex officio whether or not to accept the case.

III. Collection of information and evidence outside of the territory of the R.O.C.

8. The Commission may collect information and evidence through the following channels:
   1. The Commission shall first consider whether there is a domestic information-providing source and shall seek the assistance of related businesses to obtain information that can be released to the public.
   2. The Commission may write to request the concerned foreign enterprises to provide the information needed.
   3. The Commission may make a list of the foreign information or evidence needed and write to request the assistance of the representative offices of the Ministry of Foreign Affairs (MOFA) or the Ministry of Economic Affairs (MOEA) stationed abroad.
   4. The Commission may proceed to conduct the investigation in accordance with Article 27 of the Law. However, the Commission shall have an overall consideration of foreign sovereignty, the principle of reciprocity, and whether compulsorily demanding the concerned foreign enterprise to cooperate will achieve the goal of its investigation.
   5. The Commission may collect the needed information or evidence through the help of private organizations, trade associations and others.
9. If the foreign respondent refuses to cooperate for the investigation, the Commission may make a decision based on the readily available information and evidence. Where the respondent is likely to have violated the Law, the Commission may notify the complainant to submit evidence or request the respondent again to cooperate for the investigation.
10. Where the foreign enterprise cannot be identified or located, the Commission may handle the case by the following methods:
    1. The Commission may request the assistance of a trade association, local industrial/business organizations, or the MOEA's representative office abroad to confirm the foreign entity’s identity or location.
    2. Where the foreign enterprise still cannot be identified in spite of all investigative efforts, the Commission shall terminate the investigation.
11. Presentations or defense (including record-taking) at the Commission shall be conducted in accordance with the following:
    1. The “Points of Attention in Conducting Investigation” established by the Commission shall be observed.
    2. When the Commission notifies a foreign enterprise to appear before the Commission for a presentation or defense, the unit in charge of the case may request a commissioner in charge of the case to preside over the presentation or defense;
    3. When a foreign enterprise comes to the Commission for presentation or defense, it shall submit the identification documents for the enterprise and its representative (or administrator); in addition, identification documents and a power of attorney shall be submitted if the enterprise is represented by an agent who has a domicile in the R.O.C..
    4. If the representative of the foreign enterprise is not Chinese literate, he/she may be accompanied by a person knowing Chinese language who shall present his/her power of attorney, and identification, and sign for the record.
    5. The proceeding of the presentations or defense shall, in principle, be recorded in Chinese and facts pending confirmation shall also be recorded.
    6. If the documents and evidence presented by the foreign enterprise are in a foreign language, they shall be submitted with a Chinese translation.
12. When materials submitted by a foreign enterprise involve trade secrets, they shall be treated in the same manner as those submitted by a national of the R.O.C. in accordance with the Commission's relevant regulations on confidentiality.
13. Authentication of documents:
    1. Foreign official documents:
       The Commission may determine the authenticity of foreign official document under the specific circumstances; however, foreign official documents that have been certified by a R.O.C. embassy, consulate or representative office shall be presumed to be authentic.
    2. Foreign private documents:
       The party that presents foreign private documents shall be responsible for proving its authenticity; however, those that have been notarized by a court of justice, a public notary, or certified by a representative office of the R.O.C., or those that are not contested by the opposing party, shall be presumed to be authentic.

IV. Service of document outside of this territory

14. When effecting extraterritorial service of official documents in cases involving foreign elements, the Commission may request the Ministry of Foreign Affairs to entrust service of the official documents to an agency of the given country with appropriate jurisdiction or to a Chinese Taipei embassy, legation, consulate, or other entity representing the government of Chinese Taipei in the given country.
    

    If service cannot be effected pursuant to the provisions of the preceding paragraph, or if it is foreseeable that following such provisions would be to no avail, service may be effected by publication through application mutatis mutandis of the provisions of the Code of Civil Procedure, or service may be effected by other appropriate means.

    When the Commission serves documents in a foreign country or outside the R.O.C. territory in a case involving foreign elements, service shall be entrusted to an agency of the given country with appropriate jurisdiction or to a R.O.C. embassy, consulate, or other organization or group belonging to the R.O.C.

    Documents not deliverable in accordance with the preceding paragraph may be deemed duly served following delivery through the postal system by return-receipt registered mail, with the delivery receipt to be retained in the case file.

15. The official documents of a case involving foreign elements may be served without an English translation, but an English introduction shall be enclosed to explain the nature and legal effects of the documents served.
16. If needed, where the official document to be served is a disposition, it shall be served: (1) with an English translation of the ruling section; or (2) served with an English translation of the entire disposition. A note shall be given in the English translation to indicate: "This translation is based on the Chinese version. In case of any discrepancy between this translation and the Chinese version, the Chinese version shall prevail." The English translation shall be served with the original copy of the disposition and a form of service certificate (as per Attachment) through the assistance of the MOFA.

V. Enforcement of the administrative disposition

17. The follow-up of the enforcement of an administrative disposition outside of this territory shall be in accordance with paragraphs 8 to 10 hereof regarding the collection of information and evidence.
18. Where the foreign enterprise fails to pay the administrative fines within the time limit specified in a Commission disposition, the Commission shall file a motion with the court for compulsory execution of the disposition.

VI. Supplementary provisions

19. These Guidelines shall apply mutatis mutandis to Fair Trade Law matters without foreign element handled by the Commission where collecting information and evidence outside of the R.O.C. is required.
20. For the purpose of handling cases involving matters outside of the R.O.C., the Commission may proceed with the assistance of competent authorities of those countries entered into a bilateral agreement with the R.O.C.
    

Privacy Policy Security Policy Fair Trade Commission, Executive Yuan, R.O.C Address:12-14 F, No. 2-2 Jinan Rd., Sec. 1, Jhongjheng (Zhongzheng) District, Taipei City 100, Taiwan (R.O.C.) Tel:886-2-23517588 E-mail: ftcpub@ftc.gov.tw Best browse in 800*600 pixel with IE6.0 or above

(Last Modified：2005/12/10 15:06:39 )