Lawfare는 미국-대만 ART가 제기한 수출통제 문제를 검토한다.

On Aug. 6, House Select Committee on the Chinese Communist Party (CCP) Chair John Moolenaar pressed the U.S. Commerce Department's Bureau of Industry and Security (BIS) to clarify that the Foundry Due Diligence Rule, adopted in January 2025 after Taiwan Semiconductor Manufacturing Company (TSMC)-made chips were diverted to Huawei, remains in force. The request is a reminder of the stakes behind the export control alignment provisions in the U.S.-Taiwan Agreement on Reciprocal Trade (ART).

Under the ART, signed in February 2026, and a January 2026 U.S.-Taiwan Memorandum of Understanding, the United States agreed to reduce the reciprocal tariff rate on Taiwanese goods from 20 percent (on top of existing most-favored-nation rates) to 15 percent. In return, Taiwan agreed to reduce tariffs and non-tariff barriers, and Taiwanese firms pledged to invest at least $250 billion to expand advanced semiconductor, energy, and artificial intelligence (AI) production in the United States, backed by at least $250 billion in Taiwanese government credit guarantees. The ART is distinct for the extensive economic security commitments Taiwan agreed to adopt across trade, sanctions, and investment security, and for its alignment with U.S. export controls, particularly the Foreign Direct Product Rule (FDPR).

As of October 2026, the United States has signed ARTs with 10 economies, but none matches the depth of the export control alignment commitments Taiwan has undertaken. The agreement states that Taiwan "shall align" its export controls with U.S. rules, but what that alignment looks like in practice is unclear. Many in Taiwan recognize the flaws in its existing export control framework but interpret differently the legal commitments Taipei must undertake to achieve alignment under the ART.

That ambiguity runs through much of the ART's export control alignment provisions, arguably to the benefit of both parties. Taiwan's Article 5.2 commitment to "align" with U.S. export controls could result in (a) an administrative expansion of the Ministry of Economic Affairs (MOEA) list of items restricted for export to mainland China to include AI chips, or (b) a legislative amendment criminalizing such exports altogether. A similar ambiguity in Article 5.2's FDPR provision could require Taipei to adopt its own FDPR or to enhance assistance with U.S. enforcement. How Taipei resolves these ambiguities has implications beyond its borders, as a test of Washington's novel project to bind other foreign jurisdictions to its export control regime and broader economic security architecture through bilateral trade agreements.

**Taiwan's Existing Export Controls Architecture**

The Foreign Trade Act, originally passed in 1993, establishes Taiwan's export control program for strategic high-tech commodities (SHTC). It requires exporters to obtain a license from the International Trade Administration, an administrative agency under the MOEA, before shipping designated dual-use or military goods. Taiwan maintains five export control lists: country-specific lists restricting exports to Russia and Belarus, North Korea, and Iran, and a general List for Dual-Use Items and Technology and Common Military List.

Under Article 13 of the Foreign Trade Act, every SHTC export requires a permit, regardless of destination. However, Taiwan's list of "restricted regions" determines whether exporting an SHTC item without one is a crime. Exports of high-end chips to Iran, Iraq, North Korea, Sudan, and Syria in violation of Taiwan's existing controls incur criminal penalties, while most exports to Russia, Belarus, and the People's Republic of China (PRC) incur only administrative penalties. Exports to mainland China are restricted only for "12 categories of semiconductor wafer fabricating equipment for SHTC," including chemical mechanical polishers and photoresist strippers. Advanced AI chips are absent from the list of categories restricted for export to the PRC.

Taiwan's existing regulations primarily reach the upstream equipment used to fabricate semiconductors, including tools such as etchers and polishers used inside TSMC fabs, not the downstream graphics processing unit (GPU) chips used for large-scale AI model training that those fabs produce. Taiwan does require permits for exports to parties on its SHTC Entity List, which since June 2025 has included Huawei Technologies and Semiconductor Manufacturing International Corp. Thus, in general, exporting advanced chips to mainland China is not currently a criminal offense under Taiwanese law.

Taiwan's current export controls also reach only tangible goods, not intangible know-how. Taiwanese law has no equivalent to the U.S. "deemed export" concept, so Taiwanese regulators cannot exercise jurisdiction over the release of controlled technology or source code to a foreign national within Taiwan's territory. The regime relies on export permits and border inspections and cannot control exports that do not physically cross a border.

To date, Taiwan has regulated the outflow of sensitive technologies principally through legal authorities other than export controls. The National Security Act (NSA), amended in 2022, criminalizes the theft, unauthorized use, or disclosure of trade secrets related to "national core key technologies" (NCKT), with enhanced penalties where the offender intends to use the technology abroad, including in mainland China.

This regime is primarily reactive, and the cooperation of a private trade secret holder can significantly influence the strength of a case. Under the NSA, an NCKT is protected only to the extent that it is also a "trade secret," defined in Article 2 of the Trade Secrets Act as information that (a) is not known to persons generally involved in information of that type, (b) has actual or potential economic value because of its secrecy, and (c) whose owner has taken "reasonable measures" to keep it confidential. Without the trade secret holder's records and an account of its internal controls, prosecutors face an uphill battle in establishing that information qualifies as a trade secret. Because "reasonable measures" is an element the holder itself establishes through its own practices, a prosecution can turn on how well the company secured the information. The burden rests with Taiwanese prosecutors to show that an item qualifies as both an NCKT and a trade secret. Proving an offender's "intent" to use the NCKT overseas is also difficult and often relies on internal corporate communications, which prosecutors need the private company to produce.

**Export Control Commitments Under Article 5.2**

In Article 5.2 of the U.S.-Taiwan ART, Taiwan commits across several subsections to effectively align its export control regime with U.S. control lists, entity designations, and enforcement expectations. These provisions reflect both U.S. pressure on Taipei to stem outflows of advanced chips and know-how to the PRC and Taiwan's own growing recognition that it should not enable a potential PRC attack against the island with advanced technology.

The first two subsections describe Taipei's core substantive obligations. Article 5.2(1) stipulates that Taiwan shall maintain an "effective and robust export control regime," align that regime with U.S. controls, and ensure that the controls are "not backfilled or undermined." Under Article 5.2(2), Taiwan must promulgate additional measures to prevent diversion of advanced semiconductors, related equipment, machine tools, advanced computing items, and other critical technologies to "covered nations," defined in 10 U.S.C. § 4872(d)(2) to include North Korea, the PRC, Russia, and Iran. These categories largely track the items the Bureau of Industry and Security has controlled since October 2022, suggesting that Taiwan can no longer draw its list from multilateral export control regimes alone.

The diversion provision responds to prior incidents in which advanced chips reached PRC end users through Taiwan despite U.S. controls. Examples include TSMC's fabrication of chips for Xiamen Sophgo Technologies, a PRC chip designer, which were ultimately discovered in Huawei's Ascend processors, and the U.S. Department of Justice's indictment of three individuals tied to Super Micro Computer, a U.S. manufacturer of AI servers, alleging sales of $2.5 billion in AI-training servers with advanced Nvidia GPUs to a company based in Southeast Asia for onward shipment to mainland China.

Subsequent provisions extend Taiwan's obligations to align with the Foreign Direct Product Rule, catch-all controls, and U.S. entity lists. Article 5.2(3) stipulates that Taiwan shall align its export contr