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Legal
Enforcement of Foreign IP Judgments Explained
To enforce a foreign judgment in Taiwan, the prevailing party must have a final judgment from a foreign court, must file a civil action with a court in Taiwan and such judgment must be final.
While procedures in recognition of foreign judgments may vary, most nations prohibit retrial in substance when dealing with foreign judgments, which is an embodiment of the doctrine of res judicata. Taiwan well adopts this prevailing doctrine and the court will only review four exceptions prescribed in Article 402 of the Civil Procedure Code before entering a judgment granting enforcement.
Article 402 of the Civil Procedure Code indicates that foreign judgments are automatically recognized in Taiwan unless one of the four exceptions applies, namely: (1) no jurisdiction over the matter, (2) a default judgment, (3) the content is contrary to the public order or ethics, and (4) no reciprocal recognition between the two countries.
- No jurisdiction over the matter – Whether a foreign court has jurisdiction over the matter is determined by the Taiwan Civil Procedural Code. Specifically, the court does not challenge the jurisdiction of the case as long as it is not subject to an exclusive jurisdiction of Taiwanese courts, i.e. the division of real property. As such, the issue of jurisdiction is rarely raised against an IP judgment.
- A default judgment – To ensure that the defensive right of the no-show defendant is sufficiently protected, the defendant must be properly served if the plaintiff is to commence litigation in a foreign country. Pursuant to Article 402, service in Taiwan must seek judicial assistance in order for a default judgment to be recognized. However, if the parties choose a foreign forum in their agreement, and that foreign forum recognizes service agents for the service in that country, then personal or mail delivery is valid.
- Judgments contrary to the public order or ethics – An interesting question that relates to IP judgment is whether a foreign judgment awarding an attorney fee is contrary to the public order in Taiwan, and would thereby result in unenforceability. Since the first and second instances of civil courts do not require parties to retain a lawyer (the third instance is an exception), it is a matter of public order and ethics that attorney fees shall not be claimed from the losing party at these two instances. The Supreme Court in its 2006 Civil Judgment opined that attorney fees awarded in a foreign judgment are enforceable as recognized based on international comity.
- Reciprocal recognition – The Supreme Court opined in 2004 that there is judicial reciprocity, if it can be reasonably expected that the court of the foreign country will recognize Taiwanese judgments.
Judgments rendered in courts of Hong Kong and Macao are treated by the same legal procedure as applies to foreign judgments.
As to the enforcement of final judgments rendered in courts of Mainland China, it is slightly different in essence. According to Article 74 of the Act Governing Relations Between The People of The Taiwan Area and The Mainland Area, civil judgment or arbitral award is enforceable in Taiwan if an application is filed with a court for a ruling to recognize it. The courts may affirm the enforceability of a judgment from a court in the Mainland, but the doctrine of res judicata does not apply to that judgment if the defendant challenges the creditor’s right.
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