Fair Trade Commission Guidelines on Extraterritorial Mergers	Guidelines

Passed by the 457th Commissioners' Meeting on August 3, 2000
Promulgatd by Letter (89) Kung Fa Tzu No. 02838 on August 18, 2000
Passed by the 555th Commissioners' Meeting on June 27, 2002
Promulgated by Letter No.: Kung Fa Tzu No. 0910006094 on July 1, 2002
Passed by the 688 th Commissioners’ Meeting on January 13, 2005
Promulgated by Letter Kung Fa Tzu No.094001302 on February 24, 2005

1. The Guideline is specifically adopted by the Fair Trade Commission to guide the handling of extraterritorial merger cases.
   
2. An "extraterritorial merger case" as referred to in the Guideline means a merger of two or more foreign enterprises outside of the territorial domain of the Taiwan under any of the circumstances enumerated in Article 6(1) of the Fair Trade Law, and where the merger will have a direct, substantial, and reasonably foreseeable effect on the domestic market. M
   
3. The following factors shall be considered when determining jurisdiction in extraterritorial merger cases:
   1. the relative weight of the merger's effects on the relevant domestic and foreign markets;
   2. the nationalities, residence, and main business places of the combining enterprises;
   3. the explicitness of the intent to affect market competition in the Republic of China and the foresee ability of effects on market competition;
   4. the likelihood of creating conflicts with the laws or policies of the home countries of the combining enterprises;
   5. the feasibility of enforcing administrative dispositions ;
   6. the effect of enforcement on the foreign enterprises;
   7. rules of international conventions and treaties, or, regulations of international organizations;
   8. other factors deemed important by the Fair Trade Commission.

   If none of the combining enterprises in an extraterritorial merger case has production or service facilities, distributors, agents, or other substantive sales channels within the territorial domain of the Taiwan, jurisdiction shall not be exercised.

4. A report of merger shall be filed with the Fair Trade Commission prior to merger in extraterritorial merger cases where any of the situations enumerated under Article 11(1) of the Fair Trade Law exists.

The sales volume of a foreign enterprise participating in a merger shall be assessed by the monetary amount of that foreign enterprise's sales within the territorial domain of the Taiwan and the monetary amount of products or services imported from that foreign enterprise by domestic enterprises.

5. Where a report of merger must be filed with the Fair Trade Commission under Article 4(1) of the Guideline, such a report shall be filed by the following enterprises:
   1. by [all] the enterprises participating in the merger, where the merger involves a merger or consolidation of enterprises, transfer or leasing of the operations or assets of one enterprise by another, regular joint operations of enterprises, or outsourcing of one enterprise's operations by another;
   2. by the holding or acquiring enterprise, where an enterprise holds or acquires the shares or capital contributions in another enterprise;
   3. by the controlling enterprise, where an enterprise directly or indirectly controls the business operations or personnel appointment and discharge of another enterprise.
      If a report filer under the preceding paragraph is a foreign enterprise, the report shall be filed with the Commission by the ultimate controlling foreign parent company. Provided, if such parent company has an affiliated enterprise, branch, or office within the Taiwan, the affiliated enterprise, branch, or office may file the report, adding its own name thereto, with the Commission on behalf of such parent company. The Commission may still order the ultimate controlling parent company to submit relevant materials when necessary.
      If an enterprise required to file a report has not yet been established, the report shall be filed by the existing enterprise(s) participating in the merger.
   
   
6. The provisions of the preceding two articles shall apply mutatis mutandis in the following situations:
   1. where the combining enterprises belong respectively to the territorial domains of the Taiwan and another country and any of the situations enumerated in Article 6(1) of the Fair Trade Law exists;
   2. where a merger of foreign enterprises outside of the territorial domain of the Republic of China results in any of the situations enumerated in Article 6(1) of the Fair Trade Law among affiliated enterprises or branch companies within the territorial domain of the Taiwan.

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：2007/11/13 16:19:11 )