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Foreign rights holders often complain that when bringing IPR actions in Taiwan, they are re-quired to issue powers of attorney (POA) and have them notarized by a notary public and le-galized by an ROC representative office overseas. They claim that this is a procedural barrier to their seeking legal remedies in violation of Arti-cle 42 of the TRIPs Agreement, which provides that parties should not be subjected to overly burdensome requirements.
The Judicial Yuan and the Ministry of Justice have both reiterated that to allow IPR infringe-ment cases involving foreign litigants to be in-vestigated and prosecuted more effectively, if information in the case files and physical evi-dence is sufficient to demonstrate that a POA is genuine, and the opposing party does not dispute its authenticity, there is no need to require the legalization procedure. However, in current practice courts still require legalization on their own initiative, or do so if the opposing party challenges the authenticity of a POA, even if the opposing party does not substantiate its objection. This still does not relieve inconvenience for for-eign rights holders.
The Intellectual Property Office (IPO) recently held a meeting to address this issue and made the following recommendations:
In both civil and criminal cases, no distinction should be made between domestic and foreign litigants in the standard of evidence that is required in order to demonstrate the authen-ticity of a POA. If there is a need to verify the authenticity of a POA, a foreign party should be allowed to prove its authenticity by nota-rization or by post, fax, or electronic mail. Unless evidence is produced to challenge the POA's authenticity, the courts are urged to trust the professional judgment of Taiwanese lawyers and accept the POA's authenticity at face value, and not to insist on legalization as a matter of course.
To conform to the principle of national treat-ment, the Judicial Yuan is urged to amend the guidelines to courts in handling criminal cases, which currently provided that if the opposing party does not challenge the authenticity of a foreign part's POA, it is not necessary to re-quire legalization of the power of attorney, so that in the future, only if the opposing party has reasonable doubt as to the authenticity of a foreign party POA, the court may request that the POA be legalized. Thus, if a challenge is not reasonable, the court may reject it and accept the POA as is.
Foreign companies are encouraged to seek recognition in Taiwan under Article 386 of the Company Act in order to confirm their iden-tity, and IPO should establish a system of registration of foreign IP rights holders, so that after notarization and legalization of a general POA, it can be registered with the IPO, and the details thereof can subsequently be updated from time to time. The IPO would then issue certifications as needed by the party for the purposes of litigation, thus avoiding the bur-densome need for individual notarization and legalization for each case. The IPO is cur-rently studying how this proposal can be im-plemented.
