International litigation

International litigation (국제소송/國際訴訟) takes place to resolve disputes among businesses or individuals residing or based in different countries. International jurisdiction, service of process, discovery, procedural proceedings, recognition and enforcement are more often disputed in transnational litigations than in domestic litigation.

In order for Korea to attain recognition as a leading international hub for dispute settlement in the Asian region, it is necessary for Korean courts to improve the current litigation proceedings and enhance the efficiency of the proceedings, so that it becomes a more user-friendly system. For this purpose, the below-mentioned issues and challenges faced by the Korean courts should be addressed in a proper manner when administering litigation involving foreign parties.

These issues can be largely classified by the stages of the procedures in which they arise; (1) the litigation stage; (2) the provisional injunction stage, (3) the execution stage of a judgment, order or arbitration award.

Key words
international litigation, dispute settlement, jurisdiction, summary judgment, execution of foreign judgment

Strength
From the geopolitical perspectives, Korea is located at the center among such big trading partners as the United States, Japan, China. In addition, as a civil law country, Korea is an attractive forum for the parties who dislike the common law system.

Korean courts and judges are distinguished for their intellectual standard, morality and neutrality. It is well known that Korean courts are more positive adopting common law interpretation and brand-new systems than any other countries in civil law countries.

Most of all, in view of the entry into force of Free Trade Agreement with the European Union and the United States, the Korean legal markets are expected to increase in size as well as quality of legal services. In the near future, Korea will be an international hub for dispute settlement in Asia by ushering in agreeable foreign parties to Korean fora for litigation and arbitration.

Practical issues
The various practical issues arising during the litigation stage include:


 * 1) the efficiency problem due to the court holding back preliminary decisions over international jurisdiction issues until it has finished deciding on the merits of the case;
 * 2) the onerous requirements to obtain some type of corporate certification and notarized signatures from representative directors when submitting Power of Attorneys in order to initiate litigation;
 * 3) the question whether lex fori or lex patriae should be applied when determining the formality issues, such as the parties' capacity to initiate (or become the counterparty to) a litigation, or the parties standing to sue;
 * 4) the problems of serving court documents on parties residing overseas
 * 5) the problems of courts' mediation system;
 * 6) the need to improve the method of investigating the substance of foreign law applicable to the case;
 * 7) the disruptive effects on witness testimonies due to the recurrent re-assignment system (i.e, change of judges in charge of the case due to re-shifting of posts);
 * 8) problems associated with translation and transcription; and
 * 9) the method of assessing and burdening court costs to the defeated party.

Practical solutions
Altogether, there are certain elements in international cases which makes it inappropriate to impose regular requirements routinely imposed on regular domestic cases. The court should be open about exerting more flexibility while dministering cases with foreign elements (for example, preliminary issues separable from the merits of the case, such as international jurisdiction, can be adjudicated at the initial stage by ordering an interim judgment. This would be a similar procedure as the motion to dismiss in U.S. court systems).

It is also important that court invest more resources (allocating longer hearing sessions, seeking opinions from experts, etc) so as to enable it to fully review all the necessary information to reach a persuasive decision (for example, when determining the substantive contents of a foreign law, the courts should try to seek an opinion provided by an legal expert of that jurisdiction, rather than relying on superficial translations of the law) Issues commonly encountered by the court during the administering of interim relief proceedings, or the execution stages, are also dealt in the article. For example, the writer points out that the provisional injunction system in Korea is relatively onerous on the debtor when compared to other jurisdictions, and there needs to be are more practicable way for the debtor to temporarily release the provisional restrictions.

Also, the execution of foreign judgments or foreign arbitration awards can become more efficient if the Korean courts could simplify the review process of the foreign judgments/awards, perhaps by utilizing a decision similar to a summary judgment.

In conclusion, there are various issues regarding court proceedings of cases with foreign elements, and there are many aspects that could be improved by the court if it approaches the cases with a mindset that international cases have certain elements that makes it inappropriate to administer the same rules and procedures as those administered to regular domestic cases.