A bit of history is critical to knowing how to serve process in Taiwan. Depending on who you talk to, there are two Chinas. There’s the People’s Republic of China (PRC), the Communist-run mainland, and then there’s Taiwan, the Republic of China (ROC), which is the descendant of the Nationalist regime that ruled China prior to the Communist takeover in 1949, and moved to the island of Formosa.
The split is confusing, and given the massive amount of trade between the U.S. and both Chinas, it looms large over the manner of serving defendants located in either. Officially, the world acknowledges only a single China, viewing Taiwan (the ROC) as a rogue territory rather than a sovereign nation. The U.S., especially, regards Taiwan with a wink & a nod… essentially, “no, we don’t officially recognize you anymore, but we’re going to pretend we do for the sake of commerce.” The policy of the United States is to observe a “One China” policy, but we also have pledged to defend Taiwan from invasion should the PRC decide to make One China a reality.
To the 23 million ethnic Chinese on the island, the ROC is its own nation, and that makes serving Taiwan defendants a bit tricky. (For details on serving in the PRC, click here, and for Hong Kong here.)
Because it is not viewed as a sovereign, Taiwan can’t technically sign a treaty.* Accordingly, the Hague Service Convention doesn’t apply. And that at once complicates matters and makes serving a bit easier. It’s easier because litigants have several service options available in Taiwan, while in the PRC, there is only one way to make it happen. The complication lies is choosing the right one.
Before anything else, identify what is to be served. A summons/complaint or other notice can be served by any of the following options. BUT (and repeat after me here)… you can’t just SERVE a subpoena abroad (likewise any discovery demands, RFPs, etc.). You must use a Letter Rogatory to compel evidence production in Taiwan, and evidence requests by this instrument must follow the same Cardinal Rules as Hague Evidence Requests-– dramatically different from serving a summons or notice. Now, on to options for serving other documents, particularly summons & complaint combos…
Option 1: Letter Rogatory
- First, have a Letter Rogatory issued by the court hearing the case. The court will expect you to provide the document, but the judge signs it.
- Next, translate the documents-– all of them, including the Letter Rogatory. Although the defendant may speak flawless English, omitting translated documents will prompt Taiwan courts to refuse execution of the Letter. And for crying out loud, get the right written form of Chinese, which is traditional. Simplified Chinese is a creature of Chairman Mao’s cultural revolution, so while they may perfectly understand it in Taiwan, it is considered an insult. A very avoidable insult.
- On that issue, if your translation provider doesn’t know what that means, find a different translation provider.
- Next, send everything to the State Department with the appropriate fee.
- Sit tight. It may take a while—likely several months months from submission to return of proof, if not more.
- Be prepared to translate the response, which could be rather pricy.
Option 2: Local Counsel
- Hire an attorney in Taiwan to have service effected according to forum rules.***
- Translation may or may not be necessary.
- Make sure the proof is written up correctly, or it could be a pretty easy quash.
Option 3: Mail
- If the venue court allows it, give it a shot. Now, I contend that mail service abroad is usually a horrible idea, but in Taiwan, it can be a huge cost saver, and in some cases, the only realistic way of providing notice. Important to note: while we’re still dealing with Covid, couriers still aren’t back to requiring signatures very widely, so it’s impossible to comply with FRCP 4(f)(2)(C)(ii).
- Pay very close attention to the rules of the venue. You can’t necessarily just drop the thing in your outbox and call it good.
- Always bear in mind that if you mail service, the odds that an enforcement action will be denied go up dramatically. If your defendant has no assets in the U.S., think twice about going down this avenue.
Option 4: Electronic service
- Again, if the venue court allows it, give it a shot. FRCP 4(f)(3) opens to the door, and given the non-applicability of Hague strictures, it can be a great way to go (and one that you don’t need my help to accomplish).
- Even more than with mail service, the odds that an enforcement action will be denied go up dramatically. Likewise, if your defendant has no assets in the U.S., think twice about going down this avenue.
Again, the lack of Hague coverage in Taiwan is not an inhibiting factor– things can actually be easier and quicker, though not necessarily cheaper, than in the PRC. Taiwan remains a perplexing foreign policy headache for the U.S. It is a democratic country with free and fair elections, multiple parties, a sophisticated legal system, and republican form of government. This tends to make service in Taiwan a much smoother ride than on the mainland.
Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client. The plaintiff may not have done it correctly.
* That said, it has been accepted as a member of the World Trade Organization and its various treaties… referred to as “Chinese Taipei” in an extension of the wink & nod.
** A bit of irony here…
*** A very obscure distinction to be wary of: corporate defendants in federal court can’t be served personally due to an exception in Rule 4(h)(2).