Another Step Toward Legal Market Opening
by Brendon Carr
The Foreign Legal Consulants’ Act cleared a cabinet meeting today, reports the Korea Times. Next stop is submission to the National Assembly for an up-or-down vote. According to the proposed timetable, initial market opening will take place “from 2009”—which often means Jan. 1, 2009, but could also mean some later date during that year depending on the date of passage in the National Assembly.
But before the parades of cheering foreign lawyers can start, it’s important to note that the law, as drafted, makes market opening dependent on the existence of a free trade agreement or some other treaty between Korea and the state from which the foreign lawyer or law firms might come:
The legal market opening comes in line with a free trade agreement (FTA) with the United States…
“It’s the first stage of the agreement on legal market opening as agreed with the U.S. We may have different details in pacts with other nations. So, we need to see whether the system under the first stage works well or if we need to modify the law afterward,” a [Ministry of Justice] official said.
Therefore, if the KORUS FTA doesn’t pass the National Assembly or the United States Congress, American lawyers and law firms will not be able to take benefit of the Foreign Legal Consultants Act regardless of whether the Act passes. I’m not sure of the content of the Korea-Singapore and Korea-Chile FTAs currently in effect, or what the provisions of the Korea-European Union and Korea-Canada FTAs now under discussion might be.
So for now, although the newspapers will undoubtedly report otherwise, the status of Korean legal market opening is “Still not open.” But it’s a Done Deal For Next Year™—more “next year” than it’s ever been since started following this issue in 1991.
Still, my money is on “2009” meaning a plan will be formulated by Dec. 31, 2009 for implementation beginning 2011.
Comments
5 Responses to This Entry
Comments Policy: Comments to Korea Law Blog are moderated. This means abusive, or just plain stupid comments will be deleted. So don't be a jerk. It also means there may be some delay from the time you post a comment to the time it shows up here. If your comment wasn't against the policy, it will show up in a little bit.
-
About Korea Law Blog
Korea Law Blog is brought to you by Brendon Carr, an American lawyer working as a foreign legal consultant for more than 10 years in Seoul. (Brendon is not admitted as an attorney in Korea. But you knew that.) -
Contact Details
-
Tel. +82 (0)2 772 2734
Fax +82 (0)2 772 2800
Mobile +82 (0)10 8788 0750 -
Download My FREE Korea Employment Law FAQ
-
Korean Media
-
Blogroll
-
Brendon - Is the 180-day residency requirement still in place? Also, by “plan will be formulated by Dec. 31, 2009 for implementation beginning 2011”, do you mean that US firma can’t open offices until 2011??
Thanks in advance!
In the last version of the Act which I have seen, yes, the law will still place an affirmative requirement on registered foreign legal consultants to remain resident in Korea so that their incomes may be taxed.
As for the timing, please understand that I’m being tongue-in-cheek. This market opening has been “imminent” since I’ve had hairs on my chinny chin chin. It’s my expectation that vested interests of the legal profession will prompt a creative interpretation of Korean commitments on dates for opening—“2009” could be interpreted to mean “before midnight on the last day of 2009”. But nobody will know for sure until the bill is passed by the National Assembly.
Brendon - Foremostly, I’d like to sincerely thank you for all your conscious efforts in running this blog. As a Korean student studying law in Australia, this blog provides a rather interesting insight into the Korean legal system, notwithstanding the difficulty in obtaining any sort of materials on the topic in English.
I hope however that your passion and love for Korea extends beyond what I have perceived by reading through your posts in recent days.
Anyways I will now cut the crap and get to the question.
I’m through two years (out of five) of my combind law degree in Sydney and plan to seat the New York Bar exam which I’m eligible to do upon completion of my law course.
Now assuming that Korea does not sign such bilateral agreement with Australia by the time I start work and further assuming that I will not have the 2 year requisite work experience in the U.S but rather in Australia, (In short, Practicing Certificate in the U.S and Australia but work experience only in Australia) does it mean that I will not qualify for a ‘foreign legal consultant’ status under the incoming legislation?
choiboi,
If you’re complaining about the frequency of updates, you’ve got me—I think I may not be a natural blogger in that I’m not motivated to post five or six times every day, or even every month. Sometimes I get busy doing other things.
If you’re pointing to me being peeved with hateful distortions about my country’s military presence in Korea, well, we shall have to agree to disagree. That’s one of the privileges of living in a free society. Anyway, that doesn’t mean we can’t be friends.
You’re also entitled to a full, no-questions-asked refund of every penny you’ve paid for Korea Law Blog!
So, onto your pressing issue: If I understand you correctly, it looks like you’re one of the people that the Korean Bar Association wants to repress—a Korean who dares to make an end-run around domestic barriers to the legal profession.
Even if you’re a Korean citizen, for purposes of the Foreign Legal Consultants’ Act you’ll be a “foreign lawyer” seeking to be qualified as an experienced professional in your so-called “home jurisdiction”—i.e., the jurisdiction of your admission. I would expect that the question would turn on your experience in New York, as that jurisdiction appears to be closer to having the necessary treaty in place.
If I were in your position, with no indication on the horizon as to whether Australia will negotiate an FTA or legal-services agreement with Korea, I would aim to achieve three years’ experience with a firm in New York State. Getting employed by a US firm’s Aussie office, perhaps in US capital markets work, might enable you to argue you were “practicing New York law”, but the statute—if narrowly construed—appears to require you to have worked in New York.
Good luck! When you turn up in Seoul come say hello.
Brendon - perhaps I misunderstood initial reports re: residency requirement. I was under the impression that it was a prerequisite (i.e., in Korea 180 days PRIOR to working as lawyer), as opposed to concurrent/continuous requirement? Would appreciate any clarification. Thanks!