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Editorial

Overview

Described by some observers as a “shrimp caught between two whales”, South Korea has not been without its troubles over the last 12 months. Fallout with China over the installation in South Korea of the US-backed Terminal High Altitude Area Defence (THAAD) missile system, the ramping up of nuclear tension with North Korea, the impeachment of President Geun-hye Park, and the prosecution for corruption of leading members of the chaebols, have made the year something of an annus horribilis.

The election of President Jae-in Moon on the 10th May 2017 may help to restore some balance to the country. Besides putting THAAD on hold (with the hope of easing the tension with China that has seen a dramatic decrease in Chinese tourism and a boycott of South Korean businesses such as Lotte in China), the new President has further consolidated on the social appetite for reform of big business and the creation of a fairer divide between rich and poor. As well as licensing further government sanctioned investigations into the business affairs of CEOs and high-level employees, Moon has also increased democratisation in the antitrust space, including enforcement in favour of small business in franchising and retail agency transactions and sub-contracting transactions, as well as increased punitive reform for antitrust violations.

For the legal sector, the net result has been a flood of work for white-collar and competition attorneys, including most recently the investigation and prosecution of Samsung’s vice-president. Other legal practice areas however, have proved more vulnerable to the general instability. In 2016, South Korea witnessed a 44.8% decrease in M&A deal value compared with the previous year. This was largely due to the inactivity of the chaebols, whose time and resources were being sapped by criminal investigations. As a result, only corporate departments with a strong private equity foothold were able to flourish, with domestic private equity entities such as MBK and Hahn taking advantage of the comparative lack of competition for prime assets. Real estate lawyers were also hampered, with wavering foreign investment disrupting the development of major resorts in Incheon and Jeju Island; while in the energy space, Moon’s aversion to coal and nuclear power is driving key operators such as the Korea Electric Power Corporation (Kepco) out of domestic projects and into the hands of foreign law firms.

In other legal news, work has flowed from the implementation of the patent-approval linkage system in March 2015 in Korea, which has seen many global innovator pharmaceutical companies subject to countless invalidation and scope confirmation challenges by domestic generic pharmaceutical companies seeking to market and sell their generic versions of brand name drugs. While in the insurance sector, coverage issues arising from suicide insurance policies have generated high-end litigation.

The liberalisation of the Korean legal market remains on course and for the moment foreign law firms continue to house their offices in Seoul with a skeleton staff. Of the major domestic firms, Kim & Chang remains the front runner.

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