[quote=“Hartzell”]How would this be implemented?
If my theoretical draft organization law contained this article –
- Process, which shall include summons, subpoena, notices, and other writs provided for issuance by the Court, shall be in such form as any United States Judge for Taiwan may prescribe.
- Process shall be effective throughout all states and territories of the United States of America, including Taiwan, as well as such areas as the United States Secretary of Defense shall designate.[/b]
Would this be adequate? What would tigerman add?[/quote]
My primary concern regarding this issue is that foreign plaintiffs suing Taiwanese defendants in a foreign court are often unaware of the difficulty they may encounter when they attempt to enforce their foreign judgment in the Taiwan courts.
Taiwan law stipulates that the failure to properly serve on the Taiwan defendant the documents necessary to commence the foreign litigation shall be a bar to the recognition and enforcement of a foreign default judgment by a Taiwan court.
There are only two ways that process can be properly served on a Taiwan defendant for foreign litigation… 1) the documents can be served on the person of the Taiwan defendant while the Taiwan defendant is physically present in the geographic area where the foreign court has jurisdiction, or 2) via Taiwan’s Judicial Assistance.
Judicial Assistance requires the foreign court seeking assistance to provide all of the process documents to the foreign nation’s representative office dealing with Taiwan (that would be AIT’s office in Washington, D.C. for an action in a US court) or embassy (if the nation has diplomatic relations with the ROC). The representative office or embassy then forwards the process documents to either TECO or the ROC embassy, which in turn forwards the same to the relevant Taiwan court, which then serves process on the Taiwan defendant in Taiwan.
When foreign attorneys contact Taiwan attorneys seeking assistance with process service on a Taiwan defendant in Taiwan, they are almost always unaware of the necessity to serve process through Taiwan’s Judicial Assistance. Taiwanese attorneys very frequently neglect to inform foreign attorneys that Judicial Assistance is required if the foreign plaintiff desires to enforce his foreign judgment in Taiwan. In my experience, the Taiwan attorneys are not neglecting to inform the foreign attorneys of this matter intentionally… they for some reason simply don’t seem to think of the problem. Instead, Taiwan attorneys simply advise the foreign attorney that service by an agent will satisfy the process requirements under Taiwan law… and this is correct… But, as stated above, if the foreign plaintiff subsequently seeks to enforce his foreign default judgment in a Taiwan court, the Taiwan court will refuse to recognize the foreign judgment because the process for commencing the foreign litigation was not served on the Taiwan defendant via Judicial Assistance. The foreign plaintiff is left scratching his head in disbelief, because the Taiwanese attorney who assisted in serving process on the Taiwan defendant advised that service by agent satisfied the requirements under Taiwan law… Oh, but that is for litigation in Taiwan… and most foreign courts only require that service of process on a foreign defendant comply with the local rules where the defendant resides and is served. Thus, while the Taiwan attorney did assist in properly serving the documents on the Taiwan defendant… he did so only sufficiently so that the foreign court could try the case, certain that the requirements for service of process were met in Taiwan. Foreign plaintiffs normally are not sufficiently knowledgable of Taiwan law to understand that for recognition of and enforcement of such foreign judgments, normal service will not suffice… Judicial Assistance is required for that.
I think that service of process on a Taiwanese defendant should be completed according to Taiwan’s local service rules, regardless of whether the Taiwan defendant is being sued in a Taiwan court or a foreign court. Thus, I believe that Taiwan’s Judicial Assistance should be abolished… at least as far as it being a requirement for subsequent enforcement of a foreign judgment in Taiwan.