TAIWAN Law and Practice Contributed by: Stephen Wu, Yvonne Hsieh, Wei-Han Wu and Erica Chiu, Lee and Li, Attorneys-at-Law
Whether remedies are ever required to address non- competition issues is unclear since no case precedent is available. 5.3 Legal Standard There is no legal standard that remedies must meet in order to be deemed acceptable. 5.4 Negotiating Remedies With Authorities The parties can begin negotiating remedies with the TFTC within the waiting period by submitting a proposal to the TFTC. Meanwhile, the TFTC has the authority to propose remedies on its own motion. Although the TFTC may choose to consult the par - ties before imposing the remedies, it can nonetheless impose remedies that the parties have not agreed. Please see 5.2 Parties’ Ability to Negotiate Remedies regarding the procedural steps with respect to rem - edies. 5.5 Conditions and Timing for Divestitures Please see 5.2 Parties’ Ability to Negotiate Remedies regarding the standard approach for the conditions and timing for divestitures or other remedies. Depending on the nature of a remedy, it is acceptable for the parties to complete the merger before comply - ing with the remedies. The TFTC will conduct periodic reviews of the parties’ behaviour or divestment status to ensure that the parties comply with the conditions imposed by the TFTC. Since the remedies will serve as conditions to the TFTC’s clearance, the parties must adhere to the conditions. If the TFTC discovers any violation, it may impose penalties on the parties, including the prohibition of the combination, divestiture, transfer of the business acquired, and/or removal of personnel designated by the enterprises. The TFTC also has the power to impose an administrative fine of between TWD200,000 and TWD50 million. 5.6 Issuance of Decisions When the TFTC clears a transaction without any con - dition/remedy, it will only publish a news release sum - marising its decision on its website; it does not issue a formal decision letter. For a decision with a condi - tion/remedy or prohibiting a transaction, the TFTC will
issue an official decision to the parties, which will also be published on the TFTC’s website. 5.7 Prohibitions and Remedies for Foreign-to- Foreign Transactions To date, the TFTC has never imposed “structural” remedies (such as divestment of assets or disposal of shares) in foreign-to-foreign mergers. However, the TFTC has certainly attached behavioural remedies to a few foreign-to-foreign mergers, most of which involve sensitive industries such as the semiconductor or technology licensing industries. 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications No case precedent is available in Taiwan, so it is unclear whether ancillary restraints (such as non- competition agreement) will be covered by a clear - ance decision. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights Third parties (eg, customers, competitors, complain - ants) may have opportunities to be involved in the review process. If the TFTC accepts a combination notification and decides to exercise its jurisdiction on the transaction, it will post a summary of the proposed transaction on its website for one week, to seek public opinion. In some cases where the TFTC considers that the trans - action will have a great impact on the local market, it will: • hold a symposium or a public hearing and invite competitors, upstream and downstream enterpris - es, relevant competent authorities and scholars to provide their opinions; and/or • issue letters to the parties’ Taiwanese customers, suppliers and sometimes competitors to seek their opinions.
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