Merger Control 2019 Comparisons

Last Updated July 12, 2019

Contributed By Yoon & Yang LLC

Law and Practice

Authors



Yoon & Yang LLC is a full-service legal service provider with over 400 attorneys and other professionals based in Seoul, South Korea with offices in Tashkent, Uzbekistan and Ho Chi Minh City and Hanoi, Vietnam. The firm’s Antitrust & Competition Practice Group has over 45 attorneys and other professionals, including former senior level officials of the Korea Fair Trade Commission. The Group has extensive experience in merger control matters, from analysing the anti-competitiveness of a potential transaction and possible remedies and preparing and filing merger notification to negotiating a consent decree with the Commission. The Group has successfully represented United Technologies Corporation in the Commission’s merger review of its acquisitions of Rockwell Collins and Goodrich Corporation as well as Microsoft Corporation in the Commission’s merger review of its acquisition of Nokia Corporation’s mobile device and service business, which resulted in the Commission’s first consent decree in a merger review case.

The Monopoly Regulation and Fair Trade Act (MRFTA) is the relevant merger control legislation in South Korea. The MRFTA prohibits “business combinations” that restrict competition (Article 7 of the MRFTA) and stipulates the transacting parties’ obligations to notify the Korea Fair Trade Commission (KFTC) (Article 12 of the MRFTA). The Enforcement Decree of the MRFTA provides additional regulations regarding merger filing and the merger-review process.

The KFTC has internal guidelines for additional guidance regarding merger filing and the merger-review process, such as the Merger Review Guidelines, Merger Filing Guidelines, Business Combination Corrective Measure Imposition Criteria, Business Combination Corrective Measure Imposition Guidelines, and Criteria for Imposing Administrative Fines for Failure to Comply with Business Combination Related Corrective Measures.

South Korea does not have any other relevant legislation for foreign transactions or investment or relating to particular sectors. However, other statutes related to the finance, telecommunication, and broadcasting sectors, such as the Act on the Structural Improvement of the Financial Industry, Financial Holding Companies Act, and Telecommunications Business Act, grant review authority over business combinations in the relevant sectors to the sector-specific regulators (ie, the Financial Supervisory Commission (FSC), the Korea Communication Commission (KCC) or Ministry of Science and ICT (MSIT)), but requires those regulators to consult with the KFTC. In such cases, the relevant party is exempted from its obligation to notify the KFTC (Article 12.4 of the MRFTA).

The KFTC, an administrative body established under the Prime Minister's Office, enforces the MRFTA.

Generally, other authorities are not involved in the KFTC merger review process. However, in the case of finance, telecommunication, and broadcasting sectors, the FSC, KCC or MSIT is required to consult with the KFTC during its review regarding the merger’s potential for anti-competitive effects (see 1.2 Legislation Relating to Particular Sectors). In practice, the FSC, KCC or MSIT first requests that the KFTC review whether the merger restricts competition and will conduct its own review after obtaining the results of the KFTC review.

Notification is mandatory where the size of the merging parties exceeds the thresholds (see 2.5 Jurisdictional Thresholds).

There is no notification requirement in the following circumstances (Article 12.3 of the MRFTA):

  • where an “investment company or investment association for the establishment of small and medium enterprise” defined under Article 2, subparagraphs 4 and 5 of the Support for Small and Medium Enterprise Establishment Act:

       (i) holds shares of a “business founder” (defined under Article 2, subparagraph 2), or a “venture business” in excess of the percentage specified in Article 12.1, subparagraph 1 of the MRFTA (ie, 20%, or 15% if the target company is listed on the Korea Exchange, see 2.3 Types of Transactions); or

       (ii) becomes the largest shareholder by participating, jointly with another company, in the establishment of a “business founder” or “venture business”; or

  • where a “new technology venture capitalist” or a “new technology venture capital fund” established under the Specialised Credit Finance Business Act (i) holds shares of a “new technology business entity” defined under Article 2, subparagraph 1 of the Korea Technology Finance Corporation Act in excess of the percentage specified in Article 12.1, subparagraph 1 of the MRFTA, or (ii) becomes the largest shareholder by participating, jointly with another company, in the establishment of a “new technology business entity”; or
  • where a company subject to the notification requirement:

       (i) holds shares of any of the following companies in excess of the percentage specified in Article 12.1, subparagraph 1 of the MRFTA, or

       (ii) becomes the largest shareholder by participating, jointly with another company, in the establishment of any of the following companies:

(a)       an “investment company” subject to the Financial Investment Services and Capital Markets Act; or

(b)       a company designated as a “concessionaire of a public-private partnership project for infrastructure” under the Act on Public-Private Partnerships in Infrastructure; or

(c)              an “investment company” established for investing in a company referred to in section (b) (but limited to a company established pursuant to the relevant law for the purpose of rental housing projects); or

(d)       a “real estate investment company” under the Real Estate Investment Company Act.

The MRFTA imposes an administrative fine of up to KRW100 million for failure to make a timely and correct notification (Article 69-2 of the MRFTA).

In practice, the KFTC imposes administrative fines according to the above rule. The decision to impose an administrative fine is made through a formal resolution by the KFTC and that resolution is made public. In 2017 and 2018, the KFTC imposed administrative fines of KRW577 million (28 cases) and KRW327 million (25 cases), respectively, for failing to notify.

Business combinations that are subject to merger control include the following transactions (Article 12.1 of the MRFTA):

  • acquisition or ownership of 20% or more of the shares of another company (or 15% for companies listed on the Korea Exchange). Acquisition of shares means gaining ownership of shares by purchase or transfer of ownership from a former owner of the shares.
  • acquisition of additional shares in a company where the acquiring party already holds 20% or more of the shares in the company (15% for companies listed on the Korea Exchange) and the acquisition results in the acquiring party becoming the largest shareholder.
  • interlocking directorate (where an officer or employee holds an officer's position in another company). However, an interlocking directorate is subject to merger control only when the company subject to the notification requirement is a large company (ie, company or companies with total assets or total sales of all affiliates are over KRW2 trillion). In addition, although other transactions involving a large company are subject to pre-merger notification, an interlocking directorate is subject to post-merger notification (see 3.1 Deadlines for Notification).
  • Merger with other companies, which means the absorption of one company, that ceases to exist, into another that retains its own name and identity and acquires the assets and liabilities of the former with the statutory formalities under the Korean Commercial Code.
  • Acquisition of business (or sometimes substantial assets) which means gaining ownership of a specific business including assets (liabilities and employees) by purchase or transfer of ownership from a former owner of the business.
  • Participation in the establishment of a new company. Only the investor with the largest shareholding of a new company is required to notify.

Transfer of shares, interlocking directorate, and company establishment among affiliates are not subject to notification requirements (Articles 7.1 and 12.1 of the MRFTA). However, mergers and business transfers among affiliates are subject to notification requirements, although such transactions will be subject to simplified review (Merger Filing Guidelines).

Transactions not involving the transfer of shares or assets can be subject to notification requirements, for example, in the case of interlocking directorates.

There is no definition of “control” under the MRFTA for the purpose of determining the scope of a merger. However, the de facto standards of control can be indirectly inferred from the definition of transaction types as merger filing requirements, such as percentage of shares and interlocking directorate (see 2.3 Types of Transactions).

One party to the transaction (including worldwide affiliate companies both before and after the transaction) has total assets or annual turnover in the amount of KRW300 billion (KRW2 trillion in the case of interlocking directorate) or more and the other party in the amount of KRW30 billion or more.

In addition to these general thresholds, local thresholds are applied to overseas mergers, including transactions where:

  • A foreign company acquires another foreign company; or
  • A Korean company acquires a foreign company.

If each of these merging parties (including worldwide affiliate companies) has an annual local turnover of KRW30 billion or more, notification of the merger is mandatory.

The MRFTA does not provide special jurisdictional thresholds applicable to particular sectors (see 1.2 Legislation Relating to Particular Sectors).

Jurisdictional thresholds are calculated based on total assets or annual turnover (see 2.5 Jurisdictional Thresholds), and the calculation includes worldwide affiliate companies both before and after the transaction.

When converting a foreign company’s financial statements in foreign currency to Korean Won, the exchange rate as of the end of the year immediately preceding the fiscal year of the merger is applied to the total assets, paid-in capital, and total shareholders’ equity, while the average exchange rate of the immediately preceding fiscal year is applied to the total turnover (same for local turnover) and net profit (Merger Filing Guidelines).

Jurisdictional thresholds, based on total assets or annual turnover, are based on publicly disclosed book value.

Jurisdictional thresholds are calculated on a group-wide basis, meaning that the total assets or total sales of all the affiliate companies worldwide, both before and after the transaction, are relevant.

In Korea, the calculation of jurisdictional thresholds is not based on the total turnover of the seller and target so the seller’s turnover does not need to be included with that of the target.

“Group-wide” is defined as companies belonging to the same “business group,” where “business group” is defined as a group of companies, the businesses of which are controlled by the same person, determined by shares or “control” (Article 2 of the MRFTA). 

Although there is no explicit regulation, the KFTC may consider changes in the business during the reference period, and the notifying party may submit additional materials relevant to a change in the business that is beneficial to them.

Foreign-to-foreign transactions are subject to merger control if each party to the transaction has an annual local turnover of KRW 30 billion or more (see 2.5 Jurisdictional Thresholds) in addition to satisfying the general thresholds. 

No local effects test or local presence is required.

There is no filing requirement when a target (including worldwide affiliate companies) has no sales in South Korea.

In South Korea, there is no market share jurisdictional threshold.

There is no special provision in the MRFTA exempting joint ventures. Thus, joint ventures will be subject to merger control under the MRFTA if the parties to the joint venture meet the threshold requirements (see 2.3 Types of Transactions). The largest shareholder of a newly established company (ie, new joint venture company) must file a merger notification to the KFTC.

The KFTC is not allowed to investigate a transaction that does not meet the thresholds for the purpose of merger control. However, the act of jointly establishing a new company (i.e., new joint venture company) can be considered collusion under certain circumstances (Article 19 of the MRFTA), and in these cases it is possible that the KFTC will conduct a cartel investigation.

The KFTC can sanction a party to a transaction in violation of the MRFTA within five years of commencing an investigation and, if there was no such investigation, within seven years from the end of the unlawful act (Article 49 of the MRFTA).

In the case of pre-notification, implementation of a transaction must be suspended until clearance by the KFTC (Article 12.8 of the MRFTA).

The KFTC can impose an administrative fine of up to KRW100 million for implementation of a pre-notified merger before its clearance (Article 69-2 of the MRFTA).

Company executives responsible for implementing illegal mergers after prohibition of the merger by the KFTC are subject to either or both of (Article 66 of the MRFTA):

  • Imprisonment of up to three years.
  • A criminal fine of up to KRW200 million.

Criminal prosecution is possible only when the KFTC files a complaint with the Prosecutor's Office (Article 71 of the MRFTA).

If a party implements a transaction without the KFTC’s approval, the KFTC may issue a corrective order to the party to suspend the transaction or make remedies (Article 16 of the MRFTA). Thus, in practice, parties rarely implement transactions after notifying the KFTC but before receiving its approval. This practice applies to both foreign-to-foreign and domestic transactions. However, there are cases where a party subject to pre-merger notification notifies the KFTC after the merger, in which case the KFTC imposes an administrative fine. The KFTC’s decision to impose an administrative fine is made public.

There is no general exception to, or procedure for, waiving suspensive effect in South Korea.

There is no circumstance where the KFTC permits closing before clearance.

Pre-merger notification is required for certain types of business combination where either of the parties to the transaction is a large company that has worldwide assets or an annual turnover of KRW2 trillion or more (including the assets and turnover of its affiliates, according to Article 12.6 of the MRFTA). If a large company takes part in a transaction, notification can be filed at any time after the date of signing the agreement but before the completion of the transaction, as long as the transaction is not completed before it is cleared by the KFTC.

Mergers in which only small companies are engaged require a post-merger notification. For these mergers, notification should be made within 30 days after the completion of the transaction.

An interlocking directorate requires only a post-merger notification, even if one of the parties is a large company.

The KFTC imposes administrative fines for violation of notification deadlines in practice, and any such decisions are publicly disclosed.

Generally, both pre-merger and post-merger notifications occur after signing of a binding agreement (see 3.1 Deadlines for Notification).

However, a system of voluntary preliminary notification is also in place. Even without a signed agreement, a company that plans to merge with another can request that the KFTC review the planned merger before the ordinary notification period and decide whether the planned merger will substantially restrict competition. In such a case, the notifying party still needs to file a formal notification with the KFTC and go through the normal merger-review process.

There is no filing fee for the KFTC's review or notification.

The acquiring company is responsible for filing. For an acquisition or ownership of another company's shares, the party that acquires or owns at least 20% of another company (or at least 15% for companies listed on the Korea Exchange) must notify the merger with the KFTC. For an establishment of a new joint-venture company, the largest shareholder must notify the KFTC.

The KFTC provides notification forms for five different types of transactions, such as share subscription, etc in its Merger Filing Guidelines (see 2.3 Types of Transactions). A business entity subject to the notification requirement must provide information about the notifying company and the counterpart company’s status, finance, sales in Korea, and the competition in the relevant market using the relevant form for the transaction and must submit a report about potential anti-competitive effects. If the KFTC deems it necessary, it may request further data or information.

A business entity subject to the notification requirement must submit the relevant notification form, depending on transaction type, along with the documents required by the form. The business entity must submit materials supporting the nature of the transaction, such as the shareholder status of the notifying company and the target company, the status of affiliates, the status of relevant market, transaction agreements, the interlocking directorate plan (in the case where the notifying entity and a related party are planning to acquire shares or an interlocking directorate with respect to a company in its possession), a copy of corporate registration, and the annual audit report. 

The filing must be submitted in the Korean language, and documents in a foreign language are usually submitted with a Korean translation.

Documents are not required to be certified, notarised or apostilled.

If the details of notification or attached documents are incomplete, the KFTC will request the party to supplement the materials and will suspend the review process until a sufficient response is submitted.   

The KFTC requires parties to supplement material in practice when it deems it necessary during review.

The KFTC imposes an administrative fine if the notifying party supplies misleading information in the filing (Article 69-2 of the MRFTA). However, it is difficult to find an instance where a notifying party supplied misleading information in practice.

The review process in South Korea is not divided into phases and there are regulations only on the possibility of extending the review period. 

In principle, the KFTC must finish the review within 30 days from the notification, but it may extend the review period up to an additional 90 days after the lapse of the initial 30-day period. Accordingly, the KFTC may review the cases for 120 days in total for normal merger review.

There are no pre-notification discussions in South Korea.

The majority of the notified mergers pass the KFTC review without further requests for information. If the KFTC finds it necessary to request additional information, mostly related to issues raised during its review, it will ask the parties to provide the information within a certain time limit. In such a case, the progress of the review period is suspended (ie, the clock is stopped) until the parties provide the additional information requested.

In the KFTC Merger Review Guidelines, the KFTC presumes that the following mergers do not substantially restrict competition and therefore conducts a simplified review:

  • mergers between affiliates;
  • transactions in which a controlling relationship is not established between parties;
  • conglomerate mergers by companies other than a large company that has worldwide assets or annual turnover of KRW2 trillion or more (including those of its affiliates);
  • conglomerate mergers which are not substitutive or complementary; and
  • mergers with a clear purpose of investment (PEF, ABS, SPC).

In such cases, the KFTC only reviews factual matters of the notified case based on documentation provided and informs the company of the review result, in principle, within 15 days from the date of notification.

The KFTC has discretion to determine the timeline for clearance within the specified review period (see 3.8 Review Process) and there are no official procedures for expediting the review process.

The MRFTA prohibits a merger which substantially restricts competition in a particular market.

The MRFTA provides that the following circumstances substantially restrict competition (Article 7.4 of the MRFTA):

  • the aggregate market share of each of the merging companies meets all of the following conditions:

(i)       meets the requirements for a market dominant company (that is, the market share of a single company is above 50%, or the sum of the market share for no more than three companies is above 75% in a particular market);

(ii)       is the largest in the relevant market; and

(iii)       exceeds the market share of the second-ranking company in the market by more than 25%.

  • when a merger conducted directly by a large company or through its related party meets all of the following conditions:

(i)       the merger is in a business area where market share of small and medium enterprises under the Framework Act on Small and Medium Enterprises is at least two thirds of the entire market; and

(ii)       the merger will result in the large company having at least 5% of the market share.

A merger is considered not to restrict competition substantially in the following cases (analysis of market concentration, KFTC Merger Review Guidelines):

Consideration of Market Concentration

  • for horizontal mergers, one of the following applies:

(i)       the post-merger Herfindahl-Hirschman Index (HHI) (that is, an assessment of market concentration made by taking the sum of the squares of individual market shares of all industry participants) is less than 1,200; or

(ii)       the post-merger HHI falls between 1,200 and 2,500 and the HHI increase between the pre- and post-merger positions is less than 250 points; or

(iii)       the post-merger HHI exceeds 2,500, and the HHI increase is less than 150.

  • for vertical and conglomerate mergers, either of the following applies:

(i)       in each of the relevant markets, the post-merger HHI is less than 2,500 and the market share of the party is less than 25%; or

(ii)       the parties rank no higher than fourth in each of the relevant markets.

In the case of “innovative markets” (markets where innovative activities such as research and development are essential, due to the nature of the industries such as IT and semiconductors, etc), market shares may be difficult to determine based on the total product sales. Consequently, the market concentration can be determined by taking into account R&D costs, size of assets and capacity specialised for innovative activities, the number of patent applications or citations, and the number of companies that participate in the innovation competition (provided in the 2019 revision of the KFTC Merger Review Guidelines).

Consideration of Other Factors

However, whether or not competition is actually restricted will be determined based on the totality of the following factors in addition to the market concentration:

  • to determine whether a horizontal merger substantially restricts competition, factors such as market concentration before and after the merger, monopoly effects, co-operative effects, level of foreign and global competition, the possibility of new entrants, the existence of substitute products and adjacent markets are considered together;
  • to determine whether a vertical merger substantially restricts competition, factors such as market foreclosure effects and co-operative effects are considered together.
  • if there is a possibility that the merged company, after the merger, may use “information assets” (ie, a set of information that is collected for various purposes and managed, analysed, and utilised in consolidation, such as big data) to form, strengthen or maintain its market power, the following factors are also considered (provided in the 2019 revision of the KFTC Merger Review Guidelines):

(i)       whether the information assets obtained through the merger are difficult to obtain through other methods;

(ii)       whether the merging company’s incentive and ability to limit its competitor’s access to information assets increases as a result of the merger;

(iii)       whether, for example, restriction on access to information assets after the merger is expected to have negative effects on competition;

(iv)       whether the merging company is more likely to impede non-price competition, such as reducing the quality of the services related to the collection, management, analysis and utilisation of information assets.

The definition of the market related to the transaction is determined based on the object of the transaction (product market) and the transaction region (geographic market).

The product market, based on the objective of the transaction, is seen as the collection of products that a considerable number of buyers could instead choose to purchase in the event of a meaningful increase in the price of a certain product for a meaningful period of time. The following factors are considered:   

  • similarity of the product’s function and utility;
  • similarity of the product’s price;
  • buyers’ perception of product substitution and related purchasing behaviour;
  • sellers’ perception of product substitution and related decision-making behaviour;
  • Korean Standard Industrial Classification notified by the National Statistical Office of Korea;
  • transaction stage (manufacturing, wholesale, retail, etc); and
  • transaction counterparty.

However, in the case where the industry of the merged company, by its nature, requires innovative activities such as R&D or involves sustainable innovative competition, and where at least one of the merging parties is an important business entity in that competition, areas with similar innovative activities can be defined separately (innovative market) or defined together with the manufacturing and sales markets (provided in the 2019 revision of the KFTC Merger Review Guidelines).

The geographic market, based on the transaction region, is seen as the entire region into which a considerable number of buyers could shift their purchases in response to an event where the price of a certain product remains constant in all other regions, but there is a meaningful increase in the product’s price for a meaningful period of time in a specific region. The following factors are considered:

  • characteristics of the product (product decay, transmutability, fragility, etc) and seller’s business ability (production capacity, scope of sales network, etc);
  • the buyer’s perception of the possibility of changing the purchasing region and related purchasing behaviour;
  • the seller’s perception of the possibility of changing the purchasing region and related decision-making behaviour; and
  • ease of shifting purchasing region in terms of time, economy, and legality.

There is no de minimis clause based on the parties’ total sales or market size in South Korea.

The KFTC refers to the relevant decisions of foreign competition authorities in some cases. In particular, as the US, the EU, the Japanese and Chinese authorities and the KFTC often simultaneously conduct merger review of the same transaction, it is relatively common for the KFTC to consider decisions from the foregoing jurisdictions in such cases.

The KFTC investigates whether competition is substantially restricted in a certain transaction area, regardless of the nature of the merger, such as horizontal, vertical, or both. The KFTC considers monopoly effects, co-operative effects, and market foreclosure effects in addition to market concentration in its investigation (see 4.1 Substantive Test).

Even if a merger restricts competition, if the effect of enhanced efficiency resulting from the merger is larger than the negative effects of restricting competition, or if the merging company cannot survive without the merger, the KFTC permits such a merger (Article 7.2 of the MRFTA). However, the burden of proof of the above lies with the merging parties.   

The effect of "enhancing efficiency as a result of a merger" refers to (i) the enhanced efficiency in the areas of production, sales, and R&D or (ii) the effect of enhanced efficiency on the national economy as a whole as determined based on the following (KFTC Merger Review Guidelines):

The effect of enhancing efficiency in the areas of production, sales, and R&D can be assessed by taking the following into consideration:

  • whether production cost can be minimised through economy of scale, integration of production facilities, rationalisation of production process, among others;
  • whether sales cost can be lowered, or sales or exports can be boosted by integrating or sharing sales network;
  • whether sales or exports can be boosted by sharing market information;
  • whether logistics cost can be minimised by sharing transportation and storage facilities;
  • whether production-related technology and research abilities can be improved by complementing each other's technology or sharing or effectively utilising a skilful workforce, organisation, and capital; or
  • whether other expenses can be reduced considerably.

The effect of enhancing efficiency on the national economy as a whole can be assessed by taking the following into consideration:

  • whether the enhanced efficiency makes a significant contribution to job creation;
  • whether the enhanced efficiency makes a significant contribution to the development of regional economies;
  • whether the enhanced efficiency makes a significant contribution to the development of forward- and backward-related markets;
  • whether the enhanced efficiency makes a significant contribution to the stabilisation of the nation's economy through a stable supply of energy, among others; or
  • whether the enhanced efficiency makes a significant contribution to addressing environmental pollution.

The KFTC takes into account non-competition issues (eg, job creation, development of regional economies, development of forward- and backward-related markets, stabilisation of the nation’s economy, and market pollution) in determining national enhanced efficiency effects (see 4.5 Economic Efficiencies). Furthermore, the KFTC Merger Review Guidelines explicitly permits consideration of such issues.

The notifying company submits a report on enhanced efficiency effects in a merger filing, and the KFTC takes this into account during review. However, in practice, there has been no case where a merger was permitted, despite a finding that the merger restricted competition, because of enhanced efficiency effects.

The MRFTA treats joint ventures as business combinations that are subject to merger control. A party in the process of becoming the largest shareholder of a newly established company (ie, new joint-venture company) must file a merger notification to the KFTC.

In any case, some joint ventures formed between competitors may be considered unlawful restrictive agreements or practices if the parties (ie, parent companies) intend to carry out the main part of their business by establishing a joint venture (Article 19.1 of the MRFTA).

The KFTC can prohibit or interfere with a transaction by imposing various remedies, including (Article 16 of the MRFTA):

  • prohibition of transactions;
  • disposition of all or parts of the shares acquired;
  • resignation of an officer;
  • transfer of business;                   a party publishing the fact that it has received a corrective order;
  • restrictions on the business method or business scope of the combined enterprise to prevent the negative effects of restricted competition; and
  • any other behavioural measures regarding the methods or scope of business activities.

The KFTC imposes remedies when it makes a decision on the case. The KFTC can request that the parties make a report confirming compliance with remedies within a certain time period in order for the KFTC to monitor that compliance.

The parties can propose remedies at any stage of the KFTC's review. However, there is no formal procedure of settlement that allows the KFTC to close any case without reaching an infringement decision by accepting commitments offered by the parties.

When complying with standards for imposing remedies regarding a merger, the KFTC must comply with the following general principles:

  • Remedies must reflect the facts of a merger properly and be reviewed on a case-by-case basis, and must remedy effectively anti-competitive concerns caused by the merger. This is determined by considering factors such as whether the remedy can resolve all of the anti-competitive concerns caused by the merger, whether the remedy can be easily implemented and supervised, and whether the anti-competitive concerns can be eliminated in the near future.
  • The remedy must be imposed to the minimum extent necessary to resolve the anti-competitive concerns caused by the merger and restore or maintain the current level of competition effectively.
  • The remedy must be feasible and sufficiently clear and specific to determine objectively whether it has been implemented.
  • In the event that a remedy is imposed, the remedy must be structural, and behavioural remedies can only be imposed with the structural remedies to supplement the implementation of the structural remedies. However, if structural remedies are impossible or ineffective, imposing only behavioural remedies is permitted.

The KFTC imposes appropriate structural and behavioural remedies to resolve concerns about anti-competitive effects on a case-by-case basis. In recent cases, the KFTC mainly imposed measures such as restrictions on the business method and transfer of business.

However, it is difficult to find cases where a remedy addressed non-competition issues.

There is no formal procedure for negotiating remedies with the KFTC (see 5.2 Parties’ Ability to Negotiate Remedies).

When imposing asset divestitures, the KFTC must specify the assets to be sold, sale period and other additional obligations.

The merging company as a rule selects the counterparty of the divestiture and the KFTC may require the merging company to consult in advance with the KFTC on the adequacy of the counterparty.

The KFTC may require the merging company to consult with the KFTC before concluding the asset sale agreement in order to supervise the adequacy of the agreement.

As a rule, the deadline for implementing a divestiture is determined by considering the size of the assets to be sold, the scope, complexity, overall economic conditions, and industry practices within the range of three to six months. However, the KFTC may extend the implementation period once within the range of three to six months, pursuant to its authority or at the request of the merging company.

In the event that the KFTC imposes a remedy, the KFTC has in effect approved the transaction on the condition that the remedy is implemented, and thus the transaction can proceed. However, the remedy must be implemented within the specified period.

In the event that a party fails to implement the remedy imposed by the KFTC, the KFTC can impose an enforcement fine (Article 17-3 of the MRFTA).

Furthermore, if a party does not comply with a remedy, the party may be punished by imprisonment of not more than three years or by a fine not exceeding KRW150 million (Article 16 of the MRFTA).

The KFTC issues a formal written decision after completing the review process.

The KFTC only publicises the result of its review if an anti-competitive merger is brought to the full Commission hearing or if it is in the public interest.

In 2018, a total of 95 merger notifications were filed with the KFTC regarding foreign-to-foreign transactions, and the KFTC imposed remedies in the following two cases:

  • in connection with Qualcomm’s acquisition of NXP, the KFTC required the sale of standard-essential patents (SEP) and system patents owned by NXP; and
  • as part of the review process of the merger between Linde and Praxair, KFTC required the sale of all Linde or Praxair assets held in Korea in connection with the domestic supply of oxygen, nitrogen and argon.

Furthermore, in November 2017, the KFTC imposed behavioural remedies on the share acquisition between Maersk Line A/S and Hamburg Südamerikanische Dampfschifffahrts-Gesellschaft KG. In April 2017, the KFTC imposed structural remedies on the acquisition of E. I. du Pont de Nemours and Company by The Dow Chemical Company.

There is no regulation on ancillary restraints in Korea.

Third parties are not allowed to participate actively in the review process. However, they can submit information and their opinions. Third parties are not required to show a special interest in the transaction. Any class of third party (for example, formal complainant) does not have different rights from those of other third parties (Article 52.1 of the MRFTA). Third parties can also be heard during the full Commission hearing if the KFTC grants this (Article 52.2 of the MRFTA).

Third parties can request the KFTC for data relating to measures that the KFTC has taken. The KFTC must comply with such requests if it feels it is in the public interest. The persons providing the relevant data must grant consent (Article 52-2 of the MRFTA).

When the KFTC recognises that it is necessary, it can consider the opinions of interested parties. In the case of a merger that has anti-competitiveness concerns, the KFTC often contacts third parties for their opinions (ie, competitors, customers, suppliers, and experts), and the KFTC generally respects these opinions. In addition, third parties can also be heard during the full Commission hearing and present their opinions if the KFTC grants this.

In practice, the KFTC contacts third parties in a variety of ways, such as telephone calls or a formal request to submit an opinion regarding the relevant M&A.

Because there is no negotiation procedure in Korea, there are no cases where the parties propose remedies or where the KFTC contacts a third party regarding a market test of the remedies.

The KFTC does not publicise merger notifications or related information obtained during the review. The KFTC only publicises the result of its review if an anti-competitive merger is brought to the full Commission hearing or if it is in the public interest.

The KFTC keeps information related to business secrets confidential, and any party can request that certain information it provides to the KFTC be kept confidential.

Based on Article 36-2 of the MRFTA, the KFTC can:

  • conclude co-operation agreements with foreign governments;
  • provide assistance for enforcement activities of foreign competition authorities (this must not infringe South Korean national laws or important national interests); and
  • support a foreign government's law enforcement activities through reciprocity, even though it may not have signed any co-operation agreement with the foreign government.

The co-operation can occur regarding both general policy matters and specific transactions. However, in practice, the co-operation occurs in relation to reviews of the same or similar transactions.

The KFTC is not required to obtain the parties’ permission to co-operate with other jurisdictions.

Any party engaged in a merger can file an appeal with the KFTC or Seoul High Court if dissatisfied with a decision of the KFTC.

The appellant must file an appeal with the KFTC within 30 days of receiving the decision being challenged (Article 53 of the MRFTA). It can also appeal directly to the court within 30 days for judicial review (Article 54 of the MRFTA). If the appellant is dissatisfied with the result of the KFTC's review on its original decision, it can still file an appeal to the court for judicial review within 30 days after receiving the KFTC's decision on the administrative appeal.

In the case of a merger where Shinsegae acquired shares of Wal-Mart, the KFTC imposed a remedy ordering Shinsegae to transfer four Wal-Mart regional branches to a third party other than the top three companies in terms of sales. The Seoul High Court found that:

  • in the case of Daegu’s Siji-Gyeongsan district, which was one of the four regions, only Shinsegae and Wal-Mart operated stores among the top three companies;
  • it is difficult to find a potential acquirer other than the top three companies in an oligopoly of four to five companies; and
  • the order violated the proportional principle because Shinsegae would have no choice but to accept unfavourable sales conditions, given that both the sale period and target transfer company were limited.

Thus, the Court held that the KFTC’s remedy orders for all four regions were unlawful (Seoul High Court Decision 2006Nu30036 rendered on 3 September 2008).

Third parties have no right of appeal.

In February 2019, the KFTC revised its Merger Review Guidelines in order to take into account “innovative markets” and “information assets (such as big data),” in the merger review process. The revision specified standards for defining the relevant market, calculating the market concentration and determining anti-competitive effects in reviewing M&A relating to industries based on innovation (ie, industries where innovation competition such as R&D is essential and occurs continuously), such as IT, and provided a more effective review of innovation reducing effects manifested in, for example, potential acquisition of competitors.

According to the revised KFTC Merger Review Guidelines, when a company acquires another company in the process of product R&D or that has accumulated a large amount of information assets, even if the acquiring company’s external market share in the relevant industry is not large, the M&A can still consider anti-competitive issues resulting from “innovation reducing effects” or the “monopolisation of information assets” in an innovation market. Thus, in reviewing M&A in the innovative industry (R&D intensive industries) or information assets industry (industries that accumulate a large amount of data such as mobile communications, SNS, and finance, etc), the KFTC is now able to consider the characteristics of innovative markets in defining the relevant industry and reviewing anti-competitive effects (see 4.1 Substantive Test and 4.2 Markets Affected by a Transaction).

In 2018, the KFTC proposed legislation to introduce a new notification threshold based on the value of a transaction in order to capture substantial transactions that have a potential impact on the Korean market but where the local turnover thresholds of KRW30 billion is not satisfied such as Facebook-WhatsApp and Microsoft-LinkedIn transactions. Presently, such proposed legislation is pending approval by the Korean National Assembly.

In 2018, the KFTC reviewed a total of 702 merger filings (amounting to KRW486.6 trillion), and imposed administrative fines in 25 of those cases. KFTC reviewed a total of 97 foreign-to-foreign transactions, and imposed remedies in Qualcomm’s acquisition of NXP and the Linde-Praxair merger.

In response to the fourth industrial revolution, such as the rise of IT, semiconductors and Internet companies, including Google and Facebook, the KFTC is preparing a merger review of “innovation markets” that reflects the currently unrealised value of “information assets.” As part of this effort, the KFTC recently revised the KFTC Merger Review Guidelines (see 4.1       Substantive Test, 4.2 Markets Affected by a Transaction and 9.1 Recent Changes or Impending Legislation).

Although the number of mergers is increasing, the value of mergers has decreased somewhat due to circumstances such as Brexit, strengthening protectionism, and slowing growth of the global economy. 

Given that the number of mergers among affiliates of a large company has been increasing in the past two years, it appears that companies are actively pursuing corporate reorganisations.

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Yoon & Yang LLC is a full-service legal service provider with over 400 attorneys and other professionals based in Seoul, South Korea with offices in Tashkent, Uzbekistan and Ho Chi Minh City and Hanoi, Vietnam. The firm’s Antitrust & Competition Practice Group has over 45 attorneys and other professionals, including former senior level officials of the Korea Fair Trade Commission. The Group has extensive experience in merger control matters, from analysing the anti-competitiveness of a potential transaction and possible remedies and preparing and filing merger notification to negotiating a consent decree with the Commission. The Group has successfully represented United Technologies Corporation in the Commission’s merger review of its acquisitions of Rockwell Collins and Goodrich Corporation as well as Microsoft Corporation in the Commission’s merger review of its acquisition of Nokia Corporation’s mobile device and service business, which resulted in the Commission’s first consent decree in a merger review case.

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