IP cases, by their nature, proceed in more than one country simultaneously.  For instance, the patent lawsuits between Samsung and Apple have occurred at the same time in the courts of more than 10 different countries including Korea, the U.S., Germany, Japan, the Netherlands and Australia.  Because these cases are proceeding simultaneously, IP right holders are often placed in a situation where they have to determine in which country to file their claims, in order to yield the most favorable results. In this regard, courts all around the world attempt proactively to invite IP lawsuits and have been making efforts to provide environments that are suitable for IP litigation on a global scale.

Korea is no exception. It adjudicates a considerable number of international IP cases each year. For example, in 2017, almost one-third (31.5%) of the cases handled by the Patent Court of Korea involved a foreign individual or corporation as a litigant. Because of this continuing trend, the Supreme Court of Korea has been considering ways to alleviate some of the inconveniences that foreign individuals and overseas corporations confront when engaging in litigation in Korea.

With this goal in mind, the Supreme Court enacted the ‘Enforcement Rule on Installation and Operation of the International Court’ on June 13, 2018, permitting the use of some foreign languages in the process of a trial.  Prior to the above enactment, any legal brief submitted to the court had to be written only in Korean, pursuant to the Civil Litigation Act.  Additionally, the language used in hearings and trial proceedings also was limited to Korean, causing significant inconvenience and expense to foreign entities and individuals when participating in trials in Korea.

This recent rule change has opened a path to wider use of foreign languages in courts in Korea. It is expected that we will see a growing number of litigation matters in Korea with foreign individuals and overseas corporations more actively participating in the litigation.

Requisites for Designation of International Cases

International cases, which may be examined by the international court, and where foreign languages may be used in hearings and other proceedings, have certain prerequisites. They should be (i) cases that involve foreign persons or corporations as parties to the lawsuit; (ii) they should be cases where the examination of most of the evidence likely need to be conducted in a foreign language; or (iii) they should be cases that have international relevance. All parties to the litigation must consent to such cases being designated as international cases.  Moreover, such designation and handling of these cases should raise no concern that the trials will be delayed substantially.  When a court grants permission to a case which meets the above prerequisites, such case may be designated as an international case in which the use of some foreign languages are permitted at the hearings.

Because mutual consent by the litigation parties is required for a case to be designated as an international case, most international cases are expected to involve multinational corporations that would benefit from the use of foreign languages in the course of the litigation. Indeed, the first international case designated after enactment of the above rule, was litigation involving cancellation of a patent decision filed by an Australian-based steel company against the Head of the Korean Intellectual Property Office. In that case the Korean Intellectual Property Office agreed on the matter being designated as an international case. Mutual consent by the litigation parties is expected for patent infringement lawsuits conducted in Korea between global corporations, where it will be more convenient for the parties to proceed with the trials in languages other than Korean.

Currently, the Patent Court, as an appellate court, and the Seoul Central District Court, as a court of 1st instance, are the only two courts in the nation which have the international court divisions that can deal with international cases. But with the anticipated growing demand for international cases in the future, an additional number of international courts are likely to be established in other courts of 1st instance, such as the District Courts of Daejeon, Daeju, Busan, Gwangju, etc. as necessary.

Procedures of International Cases

Parties to a litigation matter which has been designated as an international case may submit documents prepared in foreign languages without attaching a translation (provided, that the court may separately order submission of a translation if that is required for the smooth proceeding of the litigation).  Parties also may conduct hearings in foreign languages with simultaneous interpretation being provided. The judgment in an international case is in principle prepared and sentenced in Korean, but the court will provide a translation for such judgment, written in foreign languages.  In case of any appeal filed on the judgment in an international case, the document for such appeal may be prepared in a foreign language and a Korean translation attached thereto is not required.

With the use of foreign languages in the proceedings of trial, it is expected that overseas corporations will avoid the problem of delivering inaccurate information to courts, due to erroneous translations in the course of trial in Korea.  Moreover, litigants also can save significant time and costs which would have otherwise been necessitated creating translations of trial and other case materials.

Future Prospects

It has been only two months since the international court system began operating.  Because the system is still in its infancy, it is difficult to predict whether its use will expand over time.  However, as the installation of an international court was a major goal of the Supreme Court in its effort to aggressively support IP litigation on a global scale, following its establishment of the IP Hub Court Promotion Committee in 2015, it is expected that the Supreme Court and other courts in Korea will be cooperative in nurturing the operation of this new system.

Thanks to the installation of the international court, the issue of translations and interpretation at hearings and trials also will be resolved to some extent for overseas IP holders. This had been one of the biggest obstacles to proceeding with IP lawsuits in Korea. Thus, the newly-established system will likely have a positive effect on the decision-making process as to whether or not overseas IP holders should bring their IP lawsuits in Korea.

In order to vitalize the international court in Korea, it will need to go through several stages.  This will include appointing qualified judges and court officers who are capable of conducting trials in foreign languages within the international trial department, accumulating experience necessary to conduct trials in foreign languages and securing the confidence of litigants in the judgments rendered by the international court. But when considering the commitment of the Supreme Court and its extensive experience handling global IP litigation in the past, it is expected that the international court will be able to function smoothly in the future. Therefore, it will be better for foreign IP holders to select the option of having their IP lawsuits in Korea adjudicated by the international court.

Connect with Dong-Hwan on Linkedin.