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March 24, 2009 11:27 AM

LETTER FROM ASIA: Is Korean Free Trade Agreement Better for UK or US Law Firms?

Posted by Anthony Lin

If Korea and the European Union swiftly ratify the tentative free trade agreement (FTA) they reached on Tuesday, will U.K. law firms open offices ahead of their U.S. counterparts? Not necessarily.

Most of the lawyers working in Korea for Magic Circle and other major British firms--lawyers like Walter Son at Allen & Overy and Sanghoon Lee at Linklaters--are U.S.-qualified. So they may not benefit under the rules set out for Korea-based "foreign legal consultants" in a law recently passed by Korea's National Assembly. Such consultants would not be permitted to practice Korean law, only their home country law.

Brendon Carr, an American lawyer who has worked in Seoul for a decade and writes the Korea Law Blog, has read the legal consultant bill in its original Korean language form. Based on his reading, he says the law would exclude anyone whose qualification is from a jurisdiction which does not have an FTA with Korea. "It wouldn't help them," Carr says of U.K. firms that rely on U.S. lawyers in Korea.

A Korean American partner at a top British firm agrees with Carr's assessment of the legal consultant law. "It seems like it applies on an individual basis," he says. The law also requires potential foreign legal consultants to have worked for at least three years, two outside of Korea.

In the event the EU ratifies an FTA with Korea ahead of the U.S., European firms could send European-qualified lawyers to Korea. But Carr notes that U.S. law has long been favored for cross-border deals in Korea. "It's definitely in the U.S. sphere of influence," he says.

The U.S. and Korea negotiated an FTA almost two years ago but it has not been ratified in either country. In America, its progress has been particularly hampered by concerns about its potential impact on the struggling U.S. auto industry. Ratification in the EU is by no means certain either; Tuesday's announcement reserved a number of particularly sensitive issues for further negotiation.

U.S. firms like Cleary Gottlieb Steen & Hamilton, Simpson Thacher & Bartlett, and Paul Hastings Janofsky & Walker have so far expressed the most interest in the Korea market. Such firms can draw on the large population of Korean Americans and Korean nationals studying at top U.S. law schools.

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