Liquidated Damages v. Penalties in Korean contracts

As a NY attorney, it’s a bit strange for me to read a Korean contract and see how the word “penalty” is used.  In the United States (as well as other common law jurisdictions), when a contract contains a “penalty,” the clause is, often, invalidated. Korea, however, allows some “penalties” in contracts. Cutting to the chase, this is merely an issue of confusing and overlapping terminology.  But since its confusing, it is worth explaining. To start with, a bit of background on liquidated damages.  Liquidated damages refer to damages, the amount of which, the parties designate during formation of a contract as compensation for non-breaching parties in the event of breach.   In the US and other common law jurisdictions, liquidated damages clauses are invalidated if the purpose is to punish the breaching party, rather than to compensate the injured party.  These clauses are referred to by the court as “penalties.”

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Enforcing Punitive & Liquidated Damages Awards against Korean Companies via Contracts with Foreign Subsidiaries of Korean Companies

A recent amendment of the Korean Civil Procedure Act added Article 217-2.  The Amendment has codified a holding by the Seoul Central District Court and other Korean courts noting, in part, that Korean Courts may refuse to “recognize foreign damage awards that clearly exceed amounts considered reasonable in Korea in violation of good morals and the social order of Korea” (99 KaHap 14496, S. Cent. Distr. Court, 10/20/2000). The Amendment allows Korean Courts, in Korea, the power to not recognize a damage award that the Korean Court’s perceives as “excessive.”  This standard-less “standard” leaves much wiggle room for Korean Courts. A typical situation is a case where an American importer sues a Korean conglomerate in a U.S. Court and damages are awarded to the U.S. company.  The damages may include liquidated, punitive and non-“actual” damages.  The American importer, then, attempts to enforce the judgment in Korea. There is a simple

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Distribution Agreements in Korea: Crawl before you Walk

Prior to going into any relationship with a distributor/agent in Korea, please read my post entitled: Finding a Korean Distributor: The Top 10 Things to Know Before Going to Bed with a Distributor in Korea. Please read that post in combination with this post, prior to engaging a distributor in Korea. We see too many Korean distribution and agency agreements that are mere spun U.S. or European agreements.  Please have your Korean distribution agreement and all agreements you have in Korea drafted by an experienced and proactive attorney that has on-the-ground experience in Korea.  We see too many issues that could have been easily resolved by a carefully drafted agreement and a little due diligence. Issues to consider for your Korean Distribution Agreement: Will your distributor in Korea be your agent?  If the Korean distributor is an agent, generally, you will, only, be paying your agent in Korea a commission and you

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Distribution Agreement in Korea: Factors to Always Keep in Mind

Prior to going into any relationship with a distributor/agent in Korea, please read my post entitled: Finding a Korean Distributor: The Top 10 Things to Know Before Going to Bed with a Distributor in Korea. Please read that post in combination with this post, prior to engaging a distributor. We see too many distribution agreements that are mere spun U.S. distribution or agent agreements. Please have your distribution agreement and all agreements you have in Korea drafted by an experienced and proactive attorney that has on-the-ground experience in Korea. We see too many issues that could have been easily resolved by a carefully drafted agreement and a little due diligence. Issues to consider for your Korean Distribution Agreement: Will your distributor in Korea be your agent? If the distributor is an agent, generally, you will, only, be paying your agent a commission and you will be directly invoicing the client.

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Deportation after Criminal Conviction in Korea: Korea Immigration Law Basics

Korea’s Immigration Services has increased enforcement/deportation actions against foreigners convicted of crimes.  Upon exit from Korea, the Immigration Service has been instructing individuals to report to Immigration with the written judgment and confirmation that the fine (if any) was paid in full.  These records may be obtained from the Prosecutor’s Office. We advise reporting to Immigration, only, after an attorney reviews the matter and, potentially, writes a legal opinion to the Immigration Services of Korea.  If you live in the majority of the areas of Seoul, you should report to the Enforcement Unit on the 6th Floor of the Mokdong Immigration Office. When choosing to plead guilty to a crime, please be aware that the choice may subject you to deportation.  Immigration has, frequently, deported for fines over KRW 2million and crimes that lead to suspended jail sentences or a greater sentence.  If you attorney advises you to plead guilty

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Korean Tax Incentives for 2020: Korean Tax Law Updates

Because of increased tax liabilities of many companies in Korea and because of perceived deteriorating market conditions, the Korean government implemented programs that may assist some SMEs, and larger companies doing business in Korea. Numerous conditions apply for each of these incentive/abatement tax programs below. The following is, only, intended as a basic explanation of the programs that may be available to businesses operating in Korea. Tax Support for Investments in Korea Investments in facilities that “improve productivity” shall receive an increased tax credit for a period over two years. For large businesses, there shall be an increase from 1% to 2%; medium-sized businesses, from 3% to 5%; and small businesses, from 7% to 10%. Relaxed standards for family business inheritance tax deductions. After-care periods shall be reduced from ten years to seven years. For seven years, the business is required to maintain its present headcount or aggregate payroll. Expansion

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Korea’s Virtual Assets/Cryptocurrency Law

For those who may not know, cryptocurrencies/virtual assets (the best known of them, at the moment, is Bitcoin), are digital representations of value that can be digitally traded or transferred. When holders are using these currencies the transaction, in short, the use is via Blockchains (in short, a decentralized databases). South Korea has been at the forefront of the global cryptocurrency boom and its spread has permeated through all levels of society. Statistics from 2017 show that more than one third of employees in Korea were active investors in various cryptocurrencies. The Seoul City government even launched their own currency called “S-coin” in November of 2019. However, despite all the hype surrounding cryptocurrencies in Korea, the market was almost completely unregulated leaving open the possibility for unchecked money laundering, the purchase of illegal goods and frauds. perpetrated on the population. That all changed on March 6, 2020 when the Korean National

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Employment Support for Disabled Soldiers in the Line of Duty as per the Amended Korean Act on the Management of Civilian Personnel in the Military Service 2019

The bill on the Amendment to the Korean Act on the Management of Civilian Personnel in the Military Service (hereinafter as “Amendment to the Act on Civilian Personnel in the Military Service” or “Act”) was passed by the Korean National Assembly on March 28, 2019. The Act is intended to improve the financial and work-related recovery of Korean military soldiers, which are disabled by an injury during military service. History and Legal Background to the Amendment to the Act on Civilian Personnel in the Military Service of Korea The main trigger for the amendment was an accident in 2016, where a young man lost his leg due to a land mine near the Korean Demilitarized Zone. The man was injured during his mandatory military service. Compensation for Disabled Military Personnel The Korean Military Pension Act provides, inter alia, a retirement pension, a severance pay and a pension for wounds (compare

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Mergers & Acquisition Arbitration Matters under Korean Law at the KCAB

Mergers & Acquisitions (M&A) lead to disputes around the world, many of which are complex and involve money that may change substantially the future of a company, shareholders, employees and other stakeholders. Korea is no different in this respect. Korea witnessed the number of its cross-border transaction disputes explode during the 1997 IMF crisis and continue to steadily increase ever since. Many of these issues ended in arbitration and many others lead to criminal charges and into the Korean courts. While there are no readily available published statistics on the number of M&A transactions relating to Korea that led to arbitration , market trends show that the number of disputes have grown in relation to the overall growth of the M&A market. This article shall discuss the frequency of M&A disputes in Korea, the most common M&A issues arbitrated in Korea, as well as the procedural norms for damages and

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IPG’s Sean Hayes Received the Highest Lawyer Rating from AVVO for his Work on International Legal Issues

IPG is proud to announce that Sean Hayes received the highest rating from AVVO. Avvo is an American attorney rating site and information portal. AVVO is one of the largest and most respected attorney rating sites in the United States. Sean, frequently, receives top ratings from legal rating services for his international law work. His law firm was, recently, rated South Korea’s Top Dispute Resolution Law Firm of the Year. Sean Hayes is a member of the NY Bar. Sean Hayes The articles in this blog are brought to you by Sean Hayes, retired judges, senior Korean attorneys and other attorneys/professionals at IPG and from associated law firms and consulting companies. IPG Legal is often chosen by clients when non-conflicted and aggressive representation is essential for success. Sean is the first non-Korean to work for the Korean Court System and one the first non-Koreans to be a regular member of a Korean law faculty. Sean was, recently,

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Korean Workplace Discrimination Laws

There are numerous Korean labor and employment laws that prohibit employers from discriminating against their employees in a Korean workplace. These Korean workplace discrimination laws are found in a myriad of Korean statutes and regulations. This article on Korea’s discrimination laws shall provide a quick guide as to where employers and employees can locate the basic requirements under law. The major pieces of legislation are the following: the Korean Labor Standards Act; the Korean Equal Employment Opportunity Act; the Korean Fixed-term Workers Act; and the Act on Prohibition of Age Discrimination in Employment and Elderly Employment Promotion of Korea. The Labor Standards Act of Korea The Labor Standards Act (“LSA”) is one of the primary sources of labor law in Korea and provides minimum standards for conditions of all employment. As far as discrimination is concerned, Article 6 of the LSA prohibits employers in Korea from discriminating based on gender.

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How to Invest in Korean Free Economic Zones (KFEZs): Korean Market Entry

Korean Free Economic Zones (KFEZs) are specially designated areas designed to improve the business and living environments for foreign firms looking to invest in Korea. In 2003, Korea’s very first KFEZ was launched in Incheon following the passing of the adoption of the “Act on Designation and Management of the Free Economic Zones.” Since then an additional seven have begun operation, bringing the grand total of KFEZs in Korea to eight. Companies with business in KFEZs are eligible for tax credits and other incentives under the Foreign Investment Promotion Act (FIPA). FIPA’s recent amendments passed in 2019 to provide better analysis on FDI impact on the Korean economy. For an article on this issue please: Revision to Korea’s Foreign Investment Promotion Act. As shown above, there are KFEZs operating in Incheon, Busan-Jinhae, Gwangyang Bay Area, Daegu-Gyeongbuk, Saemangeum-Gunsan, the Yellow Sea Coastal Area, and in Chungbuk. Each FEZ focuses on attracting

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Korean Arbitration: An Introduction

Korean Arbitration has come a long way since the ratification of the New York Convention in 1973. The Korean Commercial Arbitration Board (KCAB) went from a small organization handling a handful of cases to, now, and organization handling hundred of arbitration cases each year. The number of international arbitrations is, also, on the rise. This article shall give readers the backstory of how Korean arbitration as a dispute mechanism tool has developed over the years in Korea; review the key industries involved in arbitration; and provide a quick overview of the mainstay arbitration institution in Korea: the KCAB. 1973 – 2020: Arbitration in Korea Over the Years The Korea Arbitration Act was enacted into law in 1966. The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, aka the “New York Arbitration Convention” or “New York Convention,” is the Magna Carta of international arbitration. The New Arbitration Convention was

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Suspending Korean Workers without Pay due to Economic Fallout from the Coronavirus: Korean Employment Law Basics

IPG has numerous client-employers in Korea that are facing serious economic conditions because of the spread of the coronavirus across Korea. In my nearly two decades, in Korea, we have never seen such a dire situation. This situation seems, on its face, even more dire for those in F & B and certain manufacturing sectors than the 1997 Asian Financial Crisis (IMF Crisis). Yes, I was even in Korea during the Asian Financial Crisis. Korea, as of the writing of this post, is approaching 6,000 confirmed cases (35 confirmed deaths) of the novel coronavirus. While arguments exist that this virus is less serious, in the aggregate, than the seasonal flu, the reality is that business in Korea, and throughout much of the world, has been drastically affected by COVID-19. Some of these companies doing business in Korea have no logical choice but to, among other things, temporarily layoff workers, reduce

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Challenging an Arbitrator at the Korean Commercial Arbitration Board

In our last post we discussed, at length, the benefits of arbitration in Korea over litigation in a Korean court. We shall be updating the reader of numerous issues related to arbitration over the next couple of weeks. The following posts concerns challenging of an arbitrator at the Korean Commercial Arbitration Board. Thus, what happens in a situation when you, as a party in a Korean arbitration, feel that the arbitrator is acting in a manner inconsistent with his or her duties as an arbitrator? At a minimum, all arbitrator should be “independent and impartial” and “capable” – the vast majority of arbitrators are independent, impartial and capable. However, issues can sometimes arise that require the challenging of the arbitrator – we suggest proceeding with caution and care – an unsuccessful challenge can, of course, prejudice your case. Impartiality/Independence of an Arbitrator in Korea Korean Law lays out the duties

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Korea Due Diligence for Joint Ventures, Licensing, OEMs and Buying a Korean Company

Intending to execute a joint venture agreement with a Korean company? Buying a Korean company? Licensing technology to a Korean company? OEM with a Korean supplier? Selling to a Korean company?Before going to bed with a Korean company (or individual) do a little due diligence.  The motivation for this article is an article by my friends over at the China Law Blog. Due diligence in Korea is not much different than due diligence in China.  However, don’t forget what is said below: “get someone who truly knows what he or she is doing” to assist with the due diligence.  We see too many Korean lawyers and Korean business professionals with a lot of ego, but little on-the-ground high-level Korean experience or an inability to think strategically and proactively.  The few great due diligence professionals in Korea are, typically, not found easily at the ubiquitous Korean Law Firms, because of issues

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The Case for Arbitration over Litigation in Korea

Many of you are prospectively weighing the options of executing contracts with and without arbitration clauses in Korean contracts (aka setting yourself up for prospective litigation battles in Korean courts or resolving a dispute in Korea with the help of an arbitration panel). Thus, this article is intended to consider the option of arbitration over litigation in Korea. In most cases, IPG recommends arbitration over litigation for expat companies doing business in Korea and/or with Korean companies. While of course every case is unique, we at IPG have found great success over the years fighting for our clients amidst the backdrop of arbitration. Our Korean International Arbitration Team was, recently, ranked the top Dispute Resolution Firm in Korea. Benefits of Korean Arbitration over Litigation in Korean Courts Language: If you are not a native to Korea, there is a high chance that you do not speak the Korean language fluently

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Leading Commercial Arbitration Law Firm in Korea

IPG is one of the leading Korean law firms retained for international arbitration matters by multinational companies in need of efficient, proactive and non-conflicted advocacy in Korea, North America and East Asia. IPG was recently ranked as a top Dispute Resolution Law Firm. We work on complex international commercial arbitration disputes, investor-State arbitration disputes, construction arbitration disputes, and a myriad of other commercial disputes for international companies doing business in Korea and/or with Korean companies. Locally Connected – Globally Experienced: International Arbitration Team IPG is, often, chosen over the ubiquitous Korean-based law firms when non-conflicted, aggressive and efficient advocacy is necessary for success. We are, intentionally, different from the crowd. All international arbitration matters are personally handled by attorneys with significant international and local experience. Our attorneys have judicial, large law firm, in house and/or government experience and most have studied and practiced law in Korea & abroad. IPG shall

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IPG Korea Dispute Resolution Law Firm of the Year

IPG’s Korean Office was awarded the distinction as the Korea Dispute Resolution Law Firm of the year by a well-known international business journal in the United Kingdom. The journal is known for producing tailored news and guides for multinational companies doing business in Asia, North America and Europe. IPG is thrilled that, based on feedback from a survey, our frankness, street-smart advice, non-conflicted advocacy and efficiencies created by a cutting-edge case management system was highly appreciated by our clients. For a consultation with an attorney in Korea please: Contact IPG.

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Korean Arbitration Basics: Links to Relevant Resources in Korea.

IPG, over the next couple of weeks, shall be updating readers of the The Korean Law Blog on issues concerning arbitration in Korea and against Korean companies. We have posted over a dozen articles to date. We shall be posting more article on arbitration over the next couple of weeks. This present post is simply a few arbitration-related links in Korea. We shall be updating this list when more useful and credible information is available. Korean Arbitration Links Korean Commercial Arbitration Board Korean Arbitration Act Seoul International Dispute Resolution Center Korea Medical Dispute Meditation & Arbitration Center Articles on Korean Arbitration (Korean Law Blog) Substantive quality information on arbitration, in Korea, is not easily obtainable in English (and even in Korean), thus, we here at IPG felt the need to share more information on Korean arbitration. If anyone has any topics that are of interest, please Contact Us. We plan

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