Release of an Arrested Vessel in Korea: Martime Liens in Korea

We wrote an article about the Arrest of Vessels in Korean waters in a post last week.  The article is a useful guide for those considering arresting a ship in Korean waters.  The post may be found at: Arrest/Attachment of Vessels in Korean Waters: Maritime Liens for Creditors in Korea. This post describes how you may obtain the release of a vessel arrested in Korea waters.  The Korean Courts have put in place an efficient post-arrest procedure that, often, quickly allows the release of an arrested ship. Post-Arrest Procedures in Korea for Ships Arrested in Korean Waters In the post-arrest procedures in Korea, the burden is on the arresting party to establish that the order of arrest, initially granted, should not be vacated.   These hearings are often a tool to persuade a judge that the arresting party should post a security or the security should be increased.  In all but

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Amendment to Korea’s Occupational Safety and Health Act in 2019

The amended Occupational Safety and Health Act of Korea (hereinafter as “OSHA”) entered into force on January 15, 2019. One major aspect of the revision is that it has raised the risk of liability of representatives of institutions and companies and companies for workplace industries in Korea. The amended Korean OSHA law is expected to increase the risk to company management, increase liability of companies and increase options for employees that are perceived to have been harmed because of the actions or inaction of employers. Korean OSHA Basics Importer or Manufacturer of harmful and/or dangerous chemicals should draft a Material Safety Data Sheet and send it to the Ministry of Employment & Labor for approval. The Material Safety Sheet is publicly published – in most cases. Hazardous work shall not be contracted out by companies to third parties. However the amendment provides some notable exceptions (beyond the scope of this

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Succeeding in Business in Korea

Since 1977, I have observed the rise and fall of many foreign companies in South Korea. I have witnessed the trials and tribulations as a bank employee, a high-tech salesman, a country manager and as a business consultant of foreign and Korean companies doing business in Korea . Bluntly speaking, while some foreign ventures have had some unlucky breaks, those companies that have succeeded in the Korean market have done so for good reasons.  And those who have failed have done so, largely, because of their own inadequacies and often the lack of understanding of the needs of businesses in the Korean market. Those companies who for a period “succeed” do so by largely having some kind of a monopoly in technology, a lock on a particular resource, or an overwhelming marketing advantage that makes Korean copycats look decidedly second class.  But many initially successful companies ultimately fail by not getting adequately

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Licensee has Standing to Challenge the Validity of a Patent in Korea. Korean Licensing & Royalty Law Updates

Prior to a recent holding by the Supreme Court of Korea, the Korean Supreme Court had conflicting holdings on the definition of an “interested party” under Korean Patent Law. In order for a party to challenge the validity of a patent, in Korea, a party challenging the patent must be an “interested party.” Until this year, it was not clear whether a licensee of the patent in question is an “interested party” with standing to challenge the patent in Korea. A recent holding by the Supreme Court shall, likely, lead to substantially increased risk of non-payment of royalty payments and litigation in Korean courts. We, thus, suggest all that are receiving, or are expected to receive, royalty payments from Korean companies to have a comprehensive review of your patents and licensing agreements. A good deal of the risk can be mitigated by a nuanced license agreement and a Korean-tailored patent.

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Sean Hayes attended the Korea Business Forum

The Korean Business Forum is one of the leading private groups of senior executives in leading companies doing business in Korea. The group meets, at least, monthly to discuss major issues affecting businesses in Korea. I, highly, recommend applying for membership in the Korean Business Forum. This month’s meeting addressed issues facing the Korean economy, the new labor policy of the Moon Administration, and major reasons why Korea is still important for international businesses. Some interesting takeaways: Korea is the 11th largest economy by nominal GDP in the world. Korea is the 4th largest economy in Asia. Korea is the leading chip manufacturer and shipbuilder in the world. Korea is the 4th largest oil producer and 6th largest car maker in the world. Korea is the 6th largest exporter in the world. Korea’s household debt is one of the highest in the world. Korea ranks low in the World Competitive

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Corruption in Korea: What is the Crux of the Problem? by Tom Coyner

Whenever I read a news item regarding Korean corruption, I have mixed feelings. Usually the article is based on the latest finding by a well-meaning NGO that focuses on corrupting influence of big business on government without adequately addressing the root causes or even the breadth of corruption. Korean corruption doesn’t limit itself to envelopes and car trunks of cash being paid by business people to government officers. *The following article is a re-posting of an article by Tom Coyner.  The article first appeared on this law blog in 2012.  The issues remain the same and we thought this was an excellent time to repost this excellent article on an important issue for those doing business in Korea.  So one may ask oneself, “Can Korea end its many forms of corruption?” That is the essential question, and the obvious answer is “no.” I don’t mean that as a cynical observation.

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Using Korea as a Test Bed for Asian Expansion: Look to Facebook

I have advised, on many occasions, clients to look to Korea for their Asian expansion prior to entering more expensive and difficult Asian markets.  Hey Facebook seems to agree in an article entitled: Facebook uses Korea as Test Bed. This is a repost of article from nearly five years ago.  China is becoming even more difficult and much of SE Asia is not becoming anymore transparent – Korea is an excellent place to test the Asian waters. The Korea Herald has an interesting article that quotes the president of Facebook Korea as noting that:  “Facebook sees Korea as an important country due to its high mobile usage and the presence of global companies like Samsung and Hyundai,” he said. “This makes Korea an important test bed to Facebook (insofar as it is) wishing to be a mobile-first company.” We, strongly, recommend that all companies consider Korea as a useful “test

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“Probationary Periods” in Korean Employment Contracts for Newly-Hired Workers

Korean companies should consider negotiating stipulations to create “probationary periods” at the start of employment to train and assess newly-hired Korean workers. Often companies wish to evaluate workers over a set period of time after concluding a labor contract to assess the worker’s abilities and intelligence, and to allow the worker time to gain familiarity with the work.  This period of employment is called a “probationary period.” The practice is relatively unregulated by the government. The Labor Standards Act of Korea provides, among other things, minimum standards for conditions of employment, prohibits discrimination and the use of force or violence against workers.  But, it provides little guidance on regulating “probationary periods.”  The only guidance the Labor Standards Act provides can be found within Article 35, which states that employers do not need to provide 30 day notice of dismissal to workers under a “probationary period” and within Article 77, which

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Korean Merger Control and the Korean FTC

The Monopoly Regulation & Fair Trade Act of Korea (Fair Trade Act of Korea) is the main regulation governing mergers and acquisitions in Korea.  In the majority of cases, reporting and approval is not required for a target company with a yearly turnover of less than KRW 20 billion. The specific jurisdictional thresholds shall be addressed in a followup article.  This article is intended to, simply, provide a list of the main Merger Control issues .  A more substantive article shall follow. The following types of transactions are required to be reported and approved, in most cases, by the Fair Trade Commission of Korea (“KFTC”). Purchase of 15% of the shares of a listed domestic company; Purchase of 20% of the shares of a non-listed company; Establishment of a joint venture or increasing shareholdings to meet the thresholds in 1 or 2 above; Merger with a company; or Purchase of

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Korea’s Improper Solicitation & Graft Act?: Scope of Application

The Scope of Application of the Improper Solicitation and Graft Act of Korea (“Graft Act”) was a hotly contested issue that led to Korean court challenges.  The Constitutional Court of Korea has upheld the Graft Act of Korea.  More details, including a list of articles on the Graft Law of Korea, may be found at: Improper Solicitation & Graft Act of Korea. The Scope of Application is defined in Article 2 & Article 11 of the Bribery Act.  The Act applies to both Korean and foreign nationals.  The Act applies to foreign nationals, only, for prohibited acts within Korea and to Koreans for prohibited acts universe wide. Summary of the Scope of Application of the Graft Act of Korea Article 1(a) Institutions Highest Government Organs (National Assembly, Ordinary Courts, Constitutional Court) Other Government Organs (election commissions, Board of Audit and Inspection, Human Rights Commission) Central Government Administrative Agencies Local Governments

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Korean Compliance Checklist for your Business in Korea

The following Korean Compliance Checklist is intended to provide, only, a basic overview of the necessaries for keeping the law and shareholders off your back.  We, highly, recommend having a compliance audit preformed – if you have not completed a compliance audit of your Korean business in the past or recently.   1.  Do you Have a Registered Company/Business? Operating in Korea is not as simple as just leasing an office.  All businesses whether in the form of a corporation or sole proprietorship in Korea are required to register as business with the tax office and local government offices.  For some businesses the approval of a government agency shall be required.  Other articles on Korean corporate forms may be found at: Establishing a Company in Korea: Under Revised Corporate Code Limited Liability Companies Under the Revised Korean Commercial Code 2.  Do you Have Employment Agreements, Employment Rules, License Agreements, Joint

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Success in Life & Business in Korea by Senior Adviser to IPG

The most important lesson I learned from the Peace Corps was an inner sense of humility.  By my naturally contrarian nature, I have mixed feelings about having once been a Peace Corps volunteer in Korea. For example, I try to focus on being an international business development consultant, but every so often when a newspaper or magazine discovers I served in Korea during the 1970s as a Peace Corps volunteer, too often the reporter wishes to focus on my past rather than what I’m doing 30 or more years later. Frankly speaking, I want to use the reporter as much as the reporter wishes to use me. The reporter often wants a human interest story, and I want some free publicity for my business. Usually, what is printed does nothing for my business. But free publicity is still free publicity, so I play along. But all of this ends up

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Is your Korean Employee a Dispatched Worker and Thus a De Facto “Employee” under the Korean Labor Standards Act?

In 2015, the Korean Supreme Court detailed standards in determining if a Subcontracted Worker in Korea is actually a Dispatched Worker and, thus, a de facto employee of your Korean Company.  The designation has implications for retirement benefits, employment security and the payment of benefits. Dispatched Workers vs. Subcontracted Workers Companies employ, in Korea, often workers via manpower supply companies and via subcontracting agreements.  These employees are not retained directly by the Company, but are retained via a manpower company (“Dispatched Worker”) or a subcontracting agreement (“Subcontracted Worker”). The difference in these two type of relationships lies in the control over the workers – not in the mere nature of the retention according to the Korean Courts.  If the Company has a sufficient degree of control over the worker, in the eyes of the specific Korean court, the worker is deemed a Dispatched Worker and, thus, an employee of the

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Consequences of a Business Transfer in Korea: Employee Transfer?

In Korea, there is no statutory provision for the protection of employees in the event of a business transfer. Therefore, it has been left to the Korean courts to decide whether, and in what circumstances, employee transfer may occur as part of a business transfer.  The following is a basic explanation of the law of business transfer in Korea as it relates to the relationship between an employer and an employee. The Korean courts have generally held that, in the event of a business transfer, unless the employee objects, the employment relationship between the employee and employer (transferor) will automatically transfer to the transferee (without any need for the specific consent of the employee) – inclusive of the terms and conditions of the employment relationship existing at the time of closing of the business transfer, unless otherwise agreed to.  However, while it is a fairly well-established principle, this right to

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Sean Hayes Presentation to Korea Business Forum: The Korean Labour Law v. the Fourth Industrial Revolution

Sean Hayes commented on legal issues related to Korean Labour Law and Korean startups for the Korea Business Forum on October 18, 2018 at the Grand Hyatt Hotel in Seoul, Korea.  The Korean Business Forum is a group of professionals that share insight and their experience on issues related to doing business in Korea. The group is one of the most renowned business groups in Korea. “KBF meets twelve times a year and provides an opportunity for  senior executives to discuss among themselves and with experts specific issues likely to impact their operations and strategies in Korea and North East Asia. The form portrays a local and regional peerspective on today’s business environment in Korea and by combinijng the knowledge of EABC, KABC, outside speakers and AXP analysis’ ideas are presentaed to challenge participants. A stimulating and dynamic environment is provided with authoritative presentations which allow executivees to look beyond

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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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Exit Ban of Foreigners in Korea for Not Paying Taxes, Custom Duties or Violation of Law: Immigration Law Basics

The Korean Immigration Control Act and related acts allows the potential to permanently impose an exit ban on foreigners for nearly all acts that are determined by the Ministry of Justice as “harming the interest, public safety or order in the economy of the Republic of Korea” until the reason for the exit ban ceases to exist. (Immigration Control Act of Korea Article 4(1)5.) The Immigration Control Act of Korea, also, always Korean government agencies to request the imposition of an exit ban on foreigners.  Determination of the Ministry of Justice may be appealed within the Ministry and if turned down – may be appealed to the Administrative Court of Korea. Yes, this post is related to a matter we are presently handling.  The relevant provisions of Korean law includes: Immigration Control Act, Article 4 (Prohibition of Departure) Immigration Control Act, Article 4-2 (Extension of Period of Prohibition of Departure)

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Employment Background Checks in Korea: Not so Different from China

My friends over at the China Law Blog posted an article quoting the Chinese Business Leadership blog that noting that: “We were placing a GM for a Western family owned factory. They are small and troubled.  We found 15 thoroughly qualified candidates for the position. We had candidates tell us they worked at a company 5 years when they only worked. We had candidates tell us they were super valuable,  and the company does not want to let them go. We were able to find out that they were fired a year before while still in probation. As the last of the group of 15 refused to come clean and give us an accurate resume, we shook our heads in dismay. We are excellent at interviews and interview 90 minutes as our goal is to know. Despite that, we were unable to uncover these issues before the background check. We

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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 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 will be

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Korean Business Culture vs. Western Business Culture Explained by IPG Attorneys

We, often, have clients that proclaim that they can’t understand the way that Koreans do things.  They complain about an inability to reason, keep promises, express opinions and give a straight answer. Koreans have plenty of complaints about Westerners also.  Koreans, often, complain that Westerners concentrate too much on details and not enough on the big picture, care about money more than friendship and focus too much on efficiency. The root of these issues is vastly different cultural realities. Korean Business the Gangnam-Style Way The Lewis Cultural Model does an excellent job of explaining these differences.  The Lewis Cultural Model breaks cultures into three distinct categories: Linear-Active; Multi-Active; and Reactive. Linear-Active Cultures Linear-Active cultures base decisions and actions on logic.  Individuals in these cultures tend to be efficient, schedule oriented, and base decisions on a plan and reason.  These individuals are often criticized for focusing too much on the task at

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