TAIWAN Law and Practice Contributed by: Derrick Yang, Judy Lo and Yu-Ting Su, Lee and Li Attorneys-at-Law
4.9 Appeals and Judicial Review of Merger Decisions Any party to whom the decision is addressed, or any interested third party with legal standing, may file an appeal against the FTC’s administrative decision by petitioning the High Administrative Court for judicial review, within two months of receiving the decision. The administrative litigation process is similar to that of civil litigation, with the FTC serving as the defendant. While the judgment of the High Administrative Court may be further appealed to the Supreme Administra - tive Court for legal review, the Supreme Administrative Court will overturn such judgment only on grounds of legal error. 5. FDI and National Security Screening 5.1 Existence and Objectives of FDI/National Security Regime Taiwan welcomes foreign investment and has an established FDI review process that encourages international partnerships while safeguarding nation - al interests. The DIR reviews all inbound investments under two separate regimes: one for foreign investors and one for PRC investors. • Foreign investors (including those from Hong Kong/Macau) may generally invest in Taiwan unless their business falls under the restricted or prohib - ited sectors listed in the Negative List, which is published by the DIR under the Statute for Invest - ment by Foreign Nationals. • PRC investors face enhanced controls due to ongoing geopolitical tensions across the Taiwan Strait and are only permitted to invest in certain businesses specified on the Positive List. A PRC investor is defined as either (i) an individual, juristic person, organisation or institution of the PRC (a “PRC National”), or (ii) any company located in a third area (ie, an area other than the PRC or Taiwan) in which more than 30% of the equity or capital is held by PRC National(s), or which is con - trolled by PRC National(s). The national security screening process is integrated into the FDI review and intra-governmental consul -
participate in the FTC’s review process by submit - ting comments either voluntarily or in response to the FTC’s invitation. Specifically, after the FTC accepts a filing and decides to exercise jurisdiction, it will publish a summary of the proposed transaction on its website, typically for one week, to solicit public feedback. If the FTC believes that the transaction may have a sig - nificant impact on the local market, it may also reach out to relevant customers, suppliers or competitors and/or hold a symposium or public hearing to gather additional input from stakeholders. Additionally, the FTC may seek external opinions or commission aca - demic and research institutions to conduct specific analyses related to industry or economic issues. Furthermore, if a party involved in the transaction does not consent to the merger, such as in a hostile acquisi - tion, the FTC will inform that party of the reasons for the filing and solicit their opinion. 4.8 Confidentiality and Transparency As outlined in 4.7 Third-Party Participation , the FTC publishes summaries of proposed transactions on a designated section of its official website to solicit public feedback. This summary primarily includes information about the parties involved, the type of combination or transaction structure, and the indus - tries concerned, and excludes detailed business or financial information. The parties to the transaction may request that the FTC keep specific information (such as commercial or financial data and trade secrets) confidential and withhold it from public disclosure. The FTC generally honours such requests unless disclosure is deemed essential to the public interest. The materials and deliberation process of the FTC’s plenary meetings are kept confidential, but written decisions, administrative acts and administrative guidance are published promptly after such meetings. Other materials will typically be declassified after six months. The right to access files is protected under the general administrative procedure framework, and declassified materials are accessible unless otherwise prohibited by law.
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