Introduction

Under the amendment to the Court Organisation Act, which became effective on 13 June 2018, certain courts handling IP cases have been given authority to establish international panels of judges to review cases in languages other than Korean as a way of making South Korea a more attractive venue for foreign litigants to bring IP litigation cases. To provide further details on the implementation of the amendment, the Supreme Court promulgated its Rules on the Establishment and Operation of International Panels, which are now in effect. The rules provide some clarity on how these courts will operate international panels.

Establishing international panels

International panels have now been established within the Patent Court and the Seoul Central District Court, which handle most IP rights disputes in South Korea. Cases heard by international panels will be referred to as 'international cases'. In addition, four other district courts have been statutorily designated as eligible venues for IP rights disputes (ie, the Daejeon, Daegu, Busan and Gwangju District Courts). These courts may establish international panels as needed based on the number of international cases that are filed with each court.

Procedures for initiating international cases

At any time before the first hearing is conducted, a formal request to allow a case to proceed as an international case may be filed. A request for review as an international case will be granted only with the other party's written consent and if:

  • at least one party is foreign;
  • a substantial amount of the evidence in the case is foreign or must be presented in a foreign language; or
  • the case has some other substantial international connection.

Once a request is made and granted, the case will be assigned to an international panel for the remainder of that court instance. However, permission to proceed as an international case must be sought at each level of appeal (ie, a district court-level international case will not automatically continue as an international case on appeal).

Even if international case status is granted, if either party withdraws consent, or if holding a foreign language hearing would negatively affect the proceedings in a significant way, the court may withdraw permission for it to proceed as an international case. However, such a withdrawal of permission would not affect the results of proceedings that have already taken place as an international case.

Other procedural details for international cases

Currently, English is the only foreign language which must be accommodated in international cases; however, a court may allow other foreign languages on the parties' request. International panels will continue to manage and direct proceedings in Korean, while providing simultaneous interpretation at hearings for different languages spoken by the judges or the parties. Documents written in the permitted foreign languages may be submitted without accompanying Korean language translations, unlike in regular proceedings.

The court will issue international case decisions in Korean and provide translations of the decisions to the parties. However, the Korean decision will be the legally effective document for the purposes of calculating appeal deadlines or with respect to any translation errors that may occur in the translated version of the decision.

Comment

The Supreme Court's new rules provide some guidance regarding managing international panels and cases. However, the courts must still clarify a number of details by handling actual international cases. The first international case, a lawsuit filed by an Australian company seeking revocation of a patent rejection decision, is set to be conducted at the Patent Court. This case will likely be closely watched by South Korean patent practitioners for further guidance on how international cases will be handled by the courts going forward.

For further information on this topic please contact Sang Wook Han, Chunsoo Lee, Kenneth K Cho or Ki Yun Nam at Kim & Chang by telephone (+822 3703 1114) or email (swhan@kimchang.com, cslee1@kimchang.com, kenneth.cho@kimchang.com or kynam@kimchang.com). The Kim & Chang website can be accessed at www.kimchang.com.

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