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South Korea > Legal market overview
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South Korea’s domestic market remains sluggish, with lawyers reporting slim pickings on the M&A and capital markets fronts. In contrast, firms report an uptick in outbound transactions, and a marked increase in shipping finance. Also, more corporate private auctions are taking place as holding companies seek to sell off subsidiaries.
Outside the transactional arena, employment continues to be a busy area as companies seek to navigate South Korea’s idiosyncratic employment laws; and the ongoing Apple v Samsung patent litigation in relation to smartphones and software continues to generate headlines.
The South Korean market opened up to foreign firms in 2012, with a number taking the opportunity to open an office in the jurisdiction. Linklaters joins Allen & Overy, Cleary Gottlieb Steen & Hamilton LLP, Paul Hastings LLP and Simpson Thacher & Bartlett LLP in the top tier of foreign firms this year; all have offices in the country except Allen & Overy, which continues to serve the jurisdiction from Hong Kong.
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On October 28, 2013, the Financial Services Commission (the “FSC”) announced an accounting system reformation plan related to the amendment to the Act on External Audit of Stock Companies (the “Plan”) aiming primarily at improving transparency of limited companies ( yuhan heosa ) and non-listed large company’s accounting system.
As noted in our previous issue, the Act on Registration, Evaluation, Authorization and Restriction of Chemical Substances (K-REACH) and Chemicals Control Act (CCA) were recently enacted. Below are some of the key updates on K-REACH and CCA.
On November 27, 2013, the Korea Fair Trade Commission ("KFTC") agreed to apply for the first time the consent decree process in its investigation of Naver and Naver Business Platform (jointly, "Naver") and Daum Communications ("Daum") for their alleged violations of Korea's Monopoly Regulation and Fair Trade Law ("FTL").
On February 18, 2014, the Ministry of Environment of Korea ("MoE") announced an advance notice for the draft subordinate statutes of the K-REACH and Chemicals Control Act ("CCA"). Provided below are the key provisions of the legislation that is to take effect on January 1, 2015.
Ordinary wage, the standard in assessing compensation for overtime, nighttime and holiday work and unused annual leaves, refers to any money paid regularly, uniformly and on a fixed basis. On December 18, 2013, the Supreme Court rendered two full bench decisions on the scope of ordinary wage. Kim & Chang represented the Defendant-Appellant Kabul Autotech in both cases, in which the Supreme Court vacated the judgment of the lower courts in favor of the Defendant-Appellant and remanded the cases.
Further to the Personal Information Protection Act ( PIPA ), the comprehensive data privacy law passed in March 2011 which will take effect on September 30, 2011, 1 the government has unveiled draft regulations to flesh out a number of the applicable requirements and standards. The drafts of the Enforcement Decree and the Enforcement Regulations, published on May 24, 2011, include significant requirements relating to data security, which, like other provisions, apply to any entity that handles personal information files for work purposes (referred to as “data handlers” below). Also now spelled out are various details concerning consent requirements, website sign-up rules, video camera restrictions, use of third party data handlers, reporting of leaks, and collective dispute mediation.
In a move to stabilize Korean financial markets that have been battered by last week's U.S. credit downgrade, the Financial Services Commission (FSC) announced on August 9, 2011 that it would impose a temporary ban on all short selling of listed securities traded on the Korea Exchange (KRX), including the main board KOSPI markets and secondary tech-heavy KOSDAQ markets. On August 10, 2011, the KRX adopted the prohibition on short selling for three months (August 10 to November 9, 2011). At the height of the global financial crisis in 2008, a temporary ban on all short selling had also been imposed in an effort to prevent short selling from destabilizing the local bourse. In June 2009, the FSC lifted the ban at least on covered short selling of non-financial stocks. Naked short selling is prohibited under the existing rules, so this temporary ban will have the effect of prohibiting all types of covered short selling of securities listed on the KRX such as stocks, convertible bonds, bonds with warrants, equity-linked warrants (ELWs), equity-linked funds (ETFs), warrants and beneficiary certificates (but not straight bonds).
The Financial Services Commission (FSC) announced that the three-month ban on all short selling of listed securities traded on the Korea Exchange (KRX) will be lifted on non-financial stocks starting from November 10, 2011, while the ban will be maintained on financial stocks for the time being due to their greater vulnerability to external factors such as euro zone risks. However, this remaining ban on financial stocks will not extend to short selling by liquidity providers to provide quotations, which will continue to be permitted. On August 10, 2011, the KRX adopted a temporary ban on all short selling for three months following the U.S. credit downgrade.
Capsule summary: Under amended business combination reporting rules effective from January 1, 2012, stock acquisitions by large companies will generally trigger prior review by the Korean Fair Trade Commission (KFTC). Other rule changes will allow a broader range of presumptively harmless transactions to use a simplified or fast-track merger review process, but at the same time the changes will permit closer scrutiny of anti-competitive effect in case of transactions that do not qualify for that process. Also, in a late 2011 ruling, the KFTC for the first time imposed corrective measures for an offshore business combination.
Shortly after the signing of a USD 2.5 billion investment loan agreement, KGHM Polska Miedź announces the completion of another major financing project.
IKB Leasing GmbH (IKBL) has securitized a portfolio of lease receivables via German Mittelstand Equipment Financing SA (GMEF). The European Investment Bank (EIB) was one of the investors in the senior Class A Notes issued by GMEF.
Schoenherr, a leading law firm in Central and Eastern Europe, advised Laakman Holding Limited on the increase of their participation in the listed fund company C-QUADRAT Investment AG from 9.4 % to 18.4 %. read more...
Zavadetskyi Advocates advised a US private equity fund regarding USD 110 million divestiture from Ukrainian commercial real estate project.
Vienna, 28 July 2014. Fellner Wratzfeld & Partners (fwp) advises UniCredit Bank Austria AG on acquiring Immobilien Holding GmbH, which until now was wholly owned by Immobilien Privatstiftung.
AstapovLawyers International Law Group has provided corporate tax consulting and legal advisory to the joint stock oil company Bashneft, one of the Russia's largest integrated oil companies, due to its contemplated expansion into new market in the Southeast Europe.
On 6 June 2014, draft primary legislation to provide the Jersey Financial Services Commission with the power to impose civil financial penalties for material contraventions of the Codes of Practice and the AML/CFT Handbook was published.- Ogier
On 24 July 2014, Wild Bunch S.A. and the listed Senator AG announced their intention to merge into a European independent film distribution company. Wild Bunch is an important player in the field of international film sales and electronic distribution with a Europe-wide network in France, Italy, Germany and Spain. Senator AG is a German film productions and distribution company producing and distributing German and international movies since the 1970s.
Hengeler Mueller has successfully reached a temporary suspension of the prohibition order of the city of Hamburg against Uber, a provider for a smartphone-app for on-demand transportation services. Uber may thus continue providing its services in Hamburg until further notice.