Monday, October 31, 2011

Building Systems Before JVs in Korea to Build Trust between Partners

A blog referred to me by the China Law Blog has a wonderful post on Developing Trust in China by Building Trustworthy Systems/Processes.

The same advice given in this blog post is relevant to work done in Korea, Southeast Asia, China and even the West.

The value of building systems is not to be underestimated. Asians, in most respects, are wonderful at performing tasks that are well dictated and explained. While in the West we often more autonomy oriented and don't strive when systems are mandated. In the East, partners often want and expect ordered guidance.

My Firm often works with business consultants to assist client in implementing systems that reward following these systems/processes. These “systems” are, often, incorporated by reference into our joint venture, OEM and other agreements in Korea.

Don’t jump into a relationship before considering the development of verification, quality assurance, logistic and like systems.

The article from the All Roads Lead to China Blog notes emphatically that:

Systems that can, regardless of human ignorance, greed, inaction, confusion or incompetence, remove the downside risks that comes with the human element of any process. Systems that at the heart of it, are established to minimize human impact, alert system operators (buyers/ clients) of a failure, and provide the data necessary to make changes to the system (human or mechanical). For me this is a system, as basic as it is, that allows for the most protection for a firm who is engaging with any external party, and in a way where “trust” isn’t an issue.
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SeanHayes@ipglegal.com

Monday, October 24, 2011

Korea Fair Trade Commission to Enforce Mislabeling and Misleading Advertisement Law in Korea: May the Seller Beware

In June of 2011, the Korea Fair Trade Commission (KFTC) has begun to enforce Notification of the Standards on Imposing Penalties on Companies that Act on Fair Labeling and Advertising.  The KFTC is very aggressive in enforcing law.  We suspect to see a few public cases this year concerning mislabeled foreign products

A penalty may be imposed only if: 
  1. The Act was violated on two or more occasions in a three year period; or
  2. Serious harm is realized by customers; or
  3. Seller engages in prohibited acts that are intentional or are a clear violation of law (typical vague catchall language).
We have run into a few companies over the years that were exporting products from a particular country, but the country of origin of the product was actually a third country.  Check your labeling an insure that your labels reflect the proper quantity, quality, ingredients and country of origin.  
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SeanHayes@ipglegal.com

Saturday, October 22, 2011

KOR-US FTA to Pass Korean National Assembly by End of October

The Lee Administration and the major conservative parties have vowed to get the KOR-US FTA passed by the end of this month.

If we see no protests in the streets of Seoul, I suspect the bill will pass the National Assembly and be signed into law by early November.

What do you think?
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SeanHayes@ipglegal.com

Thursday, October 20, 2011

The Ten Commandments of Labor Relations in Asia

The following is published in the Korean language in the Legal Times.

Korea has one of the most capricious and least efficient labor forces in the world and China is catching up with Korea very fast. Vietnam, Cambodia, Laos, Malaysia, Indonesia and the Philippines will soon follow. The fault is on the employees, but on the employers.

Korean companies have departed for greener fields in China to discover that the fields are not as green as originally imagined. Many of these same companies, as we all know, have packed their bags and moved to the less developed Vietnam, Cambodia, Indonesia, Malaysia, Laos and the Philippines.

In all of these nations, one thing holds true, lawyers are needed, not only to mitigate the ubiquitous legal risks, but to structure a labor relations system that mitigates labor relation risks.

Because of the lack of this advice or more likely the lack of company management willing to hear this advice, Korean businesses have become some of the least favored companies to work for, for the more skilled employees in Asia. Even in Korea, foreign companies are increasingly becoming the favored choice of many of the most skilled employees.

The situation can change with the active involvement of lawyers with the knowledge and guts to push clients to heed this very simple advice.

All of my clients doing business overseas are, always, strongly advised to follow these Ten Labor Law Commandments otherwise they will likely need to move to another green pasture or face the costs of the legal system or the scorn of employees.

For example, one of my clients, recently, departed China to move his factory to Vietnam. The company left China because of an inability to find skilled workers. This Korean Company was blackballed by the local skilled employees, since a employee representative noted that they wished to work for a “kinder and gentler” employer.

I strongly told the Company that they will run into the same issues if the employer is not willing to consider employee relations as their number one risk. Luckily for the Company, the management is, now, heeding my advice. Much of this advice was developed over my decade in Asia working along with Tom Coyner a former human resources professional with a leading international software company.

Ten Commandments of Good Employee Relations
  1. Carefully Draft Employment Rules and an Employee Handbook. The form rules and handbooks being utilized by the majority of the smaller law firms are not adequate. These employment rules and the employee handbook should be drafted with the advice of a knowledgeable international attorney and a local Human Resources professional. The employment rules should be strictly followed and enforced. Always apply rules equally to all employees;
  2. Hold Monthly Meetings between Management and Employee Representatives. Be honest about issues in the company, the future vision for the Company’s Management and the hopes and wishes for the employees;
  3. Publish a Quarterly Newsletter. In the newsletter summarize the Management –Employee Representative Meetings, Job Training Programs, Available Positions, Promotions, Welfare Benefits, Requests to Employees, Personal Stories (Births and Marriages), Charitable Endeavors etc.. If possible, have a monthly newsletter;
  4. Separate Management Compensation from Union/Employee Collective Pay Increases. This helps to alleviate collusion between employees and management. Union/Employee pay increases should primarily be tied to inflation, while management should, primarily, be tied to job and company performance;
  5. Hire a Professional HR Manager. The HR manager should have a position equal to the Finance Manager. In addition, the HR Manager should be trained in HR and not merely moved from a different department of a company. The HR Manager is an essential role in the company and as such should receive the same pay, support and education as the Finance Manager;
  6. Build Good Relations with Labor Boards/Labor Relations Organizations. These organizations are a useful source of information, can assist with hiring and also assist with terminating an employee;
  7. Reward Workers with Token Gestures of Appreciation. A reward for Best Worker of the Month, Least Absence Days, Most Improved etc. goes a long way in building loyalty to the company;
  8. Make Concessions. Some of the concessions made can be utilized to show that the management respects the employees. Most strikes and labor disputes occur because of a breakdown in trust, not the simple lack of enough compensation. The breakdown in trust, usually, occurs because of the perceived lack of respect the employer has for the employee. The breakdown in trust leads to a breakdown in communication, which ultimately leads to labor disputes;
  9. Embrace Good Ethical Management. Differentiate your workplace from other workplaces by leading the company with a respect for the law, best business practices and strong business ethics. The companies that embrace ethical managements, overwhelming, attract better talent and achieve far better results;
  10. Educate Employees to know how their Specific Task Leads to success for the Company as a Whole. This is especially important in manufacturing companies. Often the employees’ role is so mundane that they lose focus on the essential nature of their function. An employee that understands the importance of his or her role is an employee that will be more productive.
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SeanHayes@ipglegal.com

Wednesday, October 19, 2011

Is the Korea-U.S. FTA Dead at the Korean National Assembly? Watch the Streets.

A battle is underway in the Korea National Assembly between the radical left on the one side and the moderates and the right on the other side.

The Korea-US FTA resembles the Korea-EU FTA, that has been signed into law, but many of the radical liberals in Korea believe that if America is out of the picture, that Korea will be unified with the North. Many of these liberals don’t care if the flag is a North Korean or South Korean flag.

As with most issues between Korea and the United States, the radical liberals are great at making a small issue a great war cry. Often the war cry leads to violence in the streets of Seoul.

In Korea, if the left can rally support of the youth, then, the left will win the battle.

To date, the streets of Seoul are quiet. If they are not quiet in the future, the bill may be dead and the reputation of Korea, again, will tarnished.

What do you think?
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SeanHayes@ipglegal.com

Tuesday, October 18, 2011

Is the Korean Market Open to Foreign Businesses by Tom Coyner

For many years, the Korean market has been synonymous with protectionism in many foreign marketers' minds.

However, with the advent of a strong middle class and its successful struggle to gain a genuine democracy during the past two decades, many of the trade barriers have fallen. As more foreign products and services have become integrated into the Korean economy, a wider acceptance of foreign corporations has taken place.

However, it would be a mistake to say this is a trend.

A number of counter factors remain -- some of which are even strengthening.

Foreign companies, especially from the major countries, are regarded with mixed feelings.

While high technology and advanced products are admired and coveted, they are at the same time somewhat feared by Korean businessmen who perceive the possibility of having to depend on them.

When using foreign IT products and services, Koreans sometimes feel they themselves are not up to snuff in some way.

When work-arounds are devised using Korean solutions, many Koreans take pride in "getting smarter" -- no matter what may be the real costs, and often despite a lack of design for long-term flexibility.

In recent years, however, Korea has generally become more accommodating to foreign business, perhaps not by choice, but by necessity as its trade and investment overseas are expanding rapidly.

Even though most Koreans acknowledge that Korea's economy is highly trade-dependent, in 2004 it took seven months of deliberations and three failed attempts for the National Assembly to ratify its first ever free trade pact with another nation, Chile, because of the overzealous and nationalistic agrarian interest groups.

Nonetheless, the trend is evident in relaxing regulations on imports and foreign investments -- though most foreign chambers of commerce would say the pace of deregulation is still too slow.

In relations with major trading partners, Korea tends to have a "poor country mentality."

Just four decades ago, it was regarded as one of the poorest in the world, requiring much relief aid from advanced countries. Even after attaining their present prosperity, Koreans still regard themselves as poor, needing preferential treatment from trading partners.

Until fairly recently, the United States had been looked upon as a generous big brother with unlimited affluence and resources, while Japan continues to be regarded as a country that should eternally compensate Korea for its colonial exploitation.

Today, younger Koreans look upon the U.S. in less favorable terms -- partially out of concern that America seems at times an economic bully, and partially because a large number of younger Koreans blame the US for being an obstacle to unification of the country. In dealing with the ever-growing trade frictions with these two major trading partners, Koreans have maintained these attitudes.

The readjustment of past relationships, along with the recognition of a new relationship with China, increasingly recognized as an economic giant at Korea's doorstep, seems to take a long time, often to the detriment of cooperation.

Even after becoming an OECD member in December 1996, South Korea feels a bit disadvantaged. Korea's 2002 gross domestic product, at $898.7 billion, was 10th among the 30 member countries.

The average GDP of the OECD members was $962.4 billion. Perhaps by other developing countries' standards, Korea with its high tech strengths may be viewed as a "poor little rich country." Yet Koreans measure themselves by the standards of Japan, the US and Western Europe.

And from that perspective, they feel relatively impoverished.

Another factor in relation to foreign business is the growing sense of nationalism, especially among the younger generation.

As the nation's economy becomes healthier and stronger, there is a growing sense of nationalism, which may also be a latent legacy of past President Park Chung Hee's infusion of positive thinking and somewhat chauvinistic sentiments. More recently, under the Kim Dae Jung, and even more so the Roh Moo Hyun governments, populism has become a key element in the population's thinking.

This includes a strong element of "minjok-jui" which literally means "racism," but actually means something more akin to the Spanish "la raza," or prideful recognition of a common ethnicity. A natural, if unfortunate, side effect is a kind of generally benign racism that resents foreign influences on the fate of the nation.

These sensitive and idealistic young students who did not experience the hardships of war or poverty are inclined to more independent and nationalistic ideals.

The collective, younger generation's voice in the last presidential election was temporarily loud enough to win the acceptance of the majority of student voters and of the general public. With a nationalist, populist government in power, however, many of the weaknesses of this philosophy have become self-evident.

As a result, today there is an emerging moderate and practical _-- and at times even conservative -- body of young people. In any event, nationalism remains a very strong, emotional factor in the daily lives of Koreans, and foreigners have no choice but to handle the matter sensitively.

Koreans generally associate foreign-origin brands with quality and durability.

That's why many manufacturers and marketers like to give even truly local products western brand names or western graphics, even if the products are exclusively for local buyers.

Though nationalistic sentiment may indicate otherwise, nowhere is prejudice for foreign goods more evident than in buyer behavior or buying habits.

Buyer preference for quality seems to transcend ideology everywhere. In reaction to this trend, some consumer activists have attempted to discourage the purchase of foreign-brand products, alleging that high royalties have to be paid to foreign licensers for using their brands on local products with the same quality as foreign brands.

This kind of propaganda can seep into corporate buyers' thinking, sometimes convincing them that purchasing foreign goods represents a "loss" to Korea as money is remitted overseas as earned profits.

Still, the general perception of foreign companies among most Korean buyers is rather favorable, again relating to their quality goods and services as well as the impression that foreign corporations provide better working conditions for national employees.

This is counterbalanced by an overall anxiety as to whether foreign companies can provide the same level of apparently unconditional after sales support offered by local companies. While production quality assurance (QA) is greatly improving, too often in the past, the quality seemed to go in after the product was installed rather than during manufacture.

Consequently, 24x7x365 technical support has become standard in many information technology (IT) sectors.


Tom Coyner runs Softlanding Korea and is the senior commercial advisor to the IPG.

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SeanHayes@ipglegal.com

Friday, October 14, 2011

The Korean Law Blog Meets the China Law Blog in Beijing for a Discussion of the Ages

I will be in Beijing tomorrow and Sunday to visit with my good friends at the China Law Blog.

Old China hat Steve will be giving a talk on China and the WTO at an event that should be interesting and hopefully doesn't land Steve in the clink.

Here is a remark from the China Law Blog on the event.

CLB's own Steve Dickinson will be one half of a two person discussion this Sunday, October 16, at 3:00 p.m., on China and the WTO. The event is part of the Hopkins China Forum, which describes itself as "a quarterly speakers series that brings together counterparts from the United States and China in China's capital city to discuss current events."

More specifically, the topic is "China and the WTO: A 10 Year Review With a Look to the Future." it will be a "conversation" between our own Steve Dickinson and Professor Tu Xinquan, the Deputy Director of the China Institute for WTO Studies (中国WTO研究院). Wei Lai, editor of the Global Times will be the moderator.

It will take place at the Western Returned Scholars Association (WRSA) Building, 111 Nanheyan St., 欧美同学会会址,南河沿大街111号, Beijing. There is a RMB 30 entrance fee, but that includes a drink and a reception to follow.

Both speakers will have 10 minutes to make opening remarks, followed by a 20-minute moderated dialogue. After that, the speakers will take questions from the audience. Without revealing what Steve is going to say, I can assure you that it will cause some sparks to fly.

I (Dan) am going to be attending and I can hardly wait. Who's in?

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SeanHayes@ipglegal.com

Thursday, October 13, 2011

Feasibility Studies will Save You Money and Headaches in Korea

I have worked in projects in Korea for over a decade and I see too many investors and companies engaging in projects in Korea, without conducting an adequate or even any feasibility study. The feasibility study should be performed by an attorney with the active participation of a seasoned local business consultant.

A business consultant, alone, is not enough. Attorneys deal in numerous projects simultaneous and normally have a better grasp of the market and pitfalls than business consultants, because of these experiences. Beware, however, some attorneys that only deal with transactional work are, too often, not adequately prepared to give the advice necessary to assist clients.

I always work with business consultants, since they often do a great job of complementing my experience. My favorite to work with in good old Tom Coyner. Tom has been in Korea since the 1970s and this old hat has seen it all.  He works as a senior commercial advise for IPG Legal.

I find that any law firm not utilizing business consultants are, too often, the wrong law firms to utilize. These law firms, often, look down on the role of consultants – the reasons I am not quite sure of. Often, attorneys, are blinded by the risk and consultants are blinded by the opportunity – the two make a very useful team. Get them on your team before wasting your money.

Only decide to engage in investment in Korea after a complete feasibility study that includes:

  • 1. Legal Feasibility: The study should include, at a minimum, the basic regulatory, environmental, tax, incentive, and license framework with a legal opinion addressing the feasibility of the project under the relevant law. The study should also detail the estimated timeframe for approvals and the major risks of JVs, OEM, and like relationships;
  • 2. Technical & Operational Feasibility: The study should include, at a minimum, the ability and timeframe of the host nation’s companies to be able to satisfy the technical and operational requirements of the foreign investor. This should include issues of sourcing, land procurement, labor sourcing and risk and, if relevant, political risks;
  • 3. Economic Feasibility/Market Study: The study should include, at a minimum, a detailed market study, cultural relations study, efficiency study and the competitive advantage of the nation versus other nations. Increasingly, Asia is becoming more costly to manufacture in and, thus, a mere labor cost evaluation is not enough, since labor efficiency rates are lower and material costs and utilities are often higher than in the West, thus, negating some of the benefits of manufacturing abroad.
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SeanHayes@ipglegal.com

U.S.-Korea FTA Passed and Soon to Be Signed by U.S. President

The KOR-U.S. FTA passed the Senate by a vote of 83-15.  Democrats supported the bill largely because of the passage of the Trade Adjustment Assistance Program (TAAP) last week.

The TAAP Program, according to the CBO, will cost the taxpayers USD 90 million over three years.

Korean President Lee Myung-bak during a speech in D.C. noted that:

This economic alliance will promote free trade and send a powerful message all around the world that Korea and the United States stand united in our commitment to rejecting all forms of protectionism and that we are committed to free, open and fair trade," he said.
"History teaches us that protectionism is not the answer when you are faced with a challenge of this magnitude.
Korea will likely pass the FTA within the month.  Analysis of the FTA will be posted over the next couple of weeks.  A bone of contention, for years to come, will be undervaluation of the Korean currency.
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SeanHayes@ipglegal.com

Wednesday, October 12, 2011

Compliance Control Standards in Korea: Amended KCC

I just realized that I have written an article on the new Compliance Officer System in the Korean language, but have not written about the matter in the English language.  Sorry to the handful of the readers of this blog that may be interested in this article.

The Korean article appeared in the Korean Language Legal Times
The new system will come into effect when the amended KCC comes into effect in April of 2012.

Compliance Control Standards under Article 542-13 of the amended Korean Commercial Code (KCC) will be only applied to listed companies with capital holdings above a threshold amount.

The determination of the threshold amount and the qualification to become a “Compliance Officer,” along with other key aspects of the amended KCC, has been delegated to the President through his power to issue presidential decrees. Thus, this post will be updated when the presidential decree is issued next year.

Key Aspects of the Compliance Control Standards System in Korea

  1. The Compliance Officer must have a three-year term;
  2. The Compliance Officer must be a full-time member of the company;
  3. The Compliance Officer must (a) Have a license to practice law in Korea; OR (b) Have taught law for five years as at least an assistant professor. A presidential decree may prescribe other requirements. Wow- even I qualify.
  4. The Compliance Officer may develop Compliance Control Standards that must be followed by all company employees and officers; and,
  5. The Compliance Officer may be held personally liable based on fiduciary duties to company.
I advise all foreign companies with a sizable footprint in Korea to implement this system. In-house counsel at foreign companies in Korea have nothing to fear and the company will benefit when the ubiquitous audit and government investigations occur.

A few other posts I have made on the amended KCC:
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SeanHayes@ipglegal.com

Wednesday, October 5, 2011

KOR-US FTA Update: Passed within the Month?

The Korean ruling Grand National Party (GNP) reaffirmed, this past Tuesday, that the party will present the United States-Korea Free Trade Agreement to the floor of the National Assembly within this month if the U.S. Congress passes the agreement.

Floor leader Rep. Hwang Woo-yea was quoted by the Korea Times as saying that: "If the U.S. Congress endorses the accord, we should follow suit around that time."

Other articles that may be of interest:
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SeanHayes@ipglegal.com

Monday, October 3, 2011

Korea: "Connected Yes, Competitive Maybe." Korea - Beware of the Dragon to the North.

Sang-Hun CHOE posted a great article in the New York Times quoting IPG’s Senior Commercial Advisor Tom Coyner in an article entitled - Connected Yes, Competitive Maybe.

Mr. CHOE emphatically notes that:
But being hyper-connected is not the same as being hyper competitive. Connectivity on its own does not bring productivity or happiness. It does not necessarily even bring foreign investment. And for all its positives, Seoul’s connectivity comes with some downsides.
For starters, the city is home to the headquarters of global hardware giants like Samsung and LG, but the companies have built their success largely by copying and improving existing products rather than by innovating or moving into new technology frontiers.
Korea is still a blue-collar manufacturing country that has failed, to date, as noted by Mr. CHOE to create truly innovative products and move into new technologies.  China, in many cases, is years ahead of Korea in innovation, because of its willingness to actively promote FDI and liberalize its investment environment.

Mr. CHOE goes on to note:
Today, Seoul is a place where a digital rush collides with industrial-age regulation and mind-set.
Until Apple’s iPhone made a splash here, advertisements for foreign electronics were all but nonexistent; the market was almost completely dominated by local brands like Samsung and LG. Electronic home appliances are almost entirely South Korean-made. The phenomenon said as much about an implicit buy-Korea mentality as the products’ growing competitiveness.
Korea is one if the not the most nationalistic nation in Asia.  This mindset, coupled with the burdensome regulatory environment, is leading Korea to only live off its past manufacturing glory, a glory that is increasingly being eaten away at by the  more competitive China.   The majority of the major Korean companies, today, produce more of their wares outside Korea than in Korea.
Nonetheless, expats face hurdles in this purportedly most wired country in the world. For instance, their access to local Web sites, including their use of complementary Wi-Fi at places like Starbucks, is severely restricted because they cannot provide a citizenship registration number.
“It’s a smart city if you are a Korean. But it’s a semi-smart city if you are a foreigner,” Mr. Coyner said.
Mr. CHOE has worked for the New York Times for the majority of his career as a journalist.  He is a recipient of the Pulitzer Prize.  His work appears in the International Herald Tribune and the New York Times.  Mr. CHOE's article may be found at:  Connected Yes, Competitive Maybe
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SeanHayes@ipglegal.com