TAIWAN Law and Practice Contributed by: Yafen Lin, Peng-Kwang Chen, I-Ming Chen and Weiyu Chiang, Formosa Transnational
amount awarded by the foreign judgment before the proceedings begin. If the losing party decides to appeal, a fee of approximately 1.65% of the amount awarded by the foreign judgment will be charged by the appellate court. If the party that paid the litigation fees eventually obtains a final and irrevocable judgment for enforce - ment of the foreign award in its favour, that party may further request the opposing party to compensate the winning party for the litigation fees charged by the court. In general, Taiwan follows the American rule for lawyer fees. Each party pays for the legal fees that it incurs and cannot recover such fees from the other party except for a small portion at the Supreme Court. Time There are no official statistics in respect of the time taken to enforce a foreign judgment. The proceed - ings for enforcement/recognition of a foreign judg - ment usually take about two to three months if the respondent does not contest. 3.6 Challenging Enforcement of Foreign Judgments Common Arguments As the recognition/enforcement of a foreign judgment (whether made by a Vietnamese, Chinese, or other foreign-jurisdiction court) requires such judgment to be made with due process, common arguments raised by a debtor (the losing defendant in the previ - ous proceedings that rendered the foreign judgment) include that: • the debtor’s procedural rights were not protected due to a default judgment being rendered in the absence of the participation of the debtor; and • legal documents were not served in the ways required by Taiwanese law. There are Taiwanese judgments of the opinion that the plaintiff shall bear the burden of proof that: • the debtor has appeared in front of the foreign court to participate in the proceeding that rendered the foreign judgment; or
• the foreign court’s summons notifying the com - mencement of the foreign court proceedings were legally served on the debtor. A Supreme Court judgment made in 2011 further elaborates that where a foreign court serves a defend - ant located in Taiwan with a notice or order stating the commencement of the proceedings, such notice or order must be served in accordance with the pro - cedures stipulated in the Law in Supporting Foreign Courts on Consigned Cases, the Handling Procedures for Judicial Assistance Matters, and other relevant laws and regulations in Taiwan. Also, such notice or order must allow the defendant sufficient time to prepare his/her argument. Therefore, if the plaintiff’s lawyers simply send legal documents to the debtor by mail, or hand the documents directly to the debtor, such service of process may not satisfy the require - ments of Article 402 (1)(ii) of the Taiwan Code of Civil Procedure. After Recognition/Permission of Enforcement After the recognition/permission of enforcement of a foreign judgment, a debtor may challenge such enforcement by filing an objection suit on the grounds that the claims have been extinguished or prevented due to reasons that arose after the court recognised/ permitted the enforcement of the foreign judgment. Further details may be found in 2.5 Challenging Enforcement of Domestic Judgments . 4. Arbitral Awards 4.1 Legal Issues Concerning Enforcement of Arbitral Awards Domestic Arbitral Awards To enforce a domestic arbitral award, one must obtain an enforcement order rendered by the competent court beforehand, except where the parties agree in writing that the arbitral award may be enforced with - out such enforcement order and the subject matter of the arbitral award concerns one of the following (see Article 37 (2) of the Taiwan Arbitration Law): • payment of a specified sum of money or certain amount of fungible goods or securities; or • delivery of specified movable property.
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