Under the Amendment to the Court Organization Act, which became effective June 13, 2018, certain courts handling IP cases have been given authority to establish “International Panels,” or panels of judges reviewing cases in languages other than in Korean, as a way of making Korea a more conducive venue for foreign litigants to bring IP litigation.
To provide further details for implementing 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 the International Panels.
1. Establishment of the International Panels
International Panels have now been established within the Patent Court and the Seoul Central District Court, which handle most IPR disputes in Korea, and cases heard by International Panels will be referred to as “International Cases.” Additionally, there are four other District Courts that are statutorily designated as eligible venues for IPR disputes (i.e., 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.
2. Procedures for initiating an International Case
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 is granted only with the other party’s consent in writing, and only if: (i) at least one party is a foreign party; (ii) if a substantial amount of the evidence in the case is foreign or must be presented in a foreign language; or (iii) 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, it should be noted that permission to proceed as an International Case must be sought at each level of appeal (i.e., a district court 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 impact the proceedings in a significant way, then the Court may cancel permission to proceed as an International Case. However, any cancellation of permission would not affect the results of any proceedings that have already taken place as an International Case.
3. Other procedural details for International Cases
Currently, English is the only foreign language which is required to be accommodated in International Cases, but a court may allow other foreign languages upon the parties’ request at its discretion. International Panels will continue to manage and direct the proceedings in Korean, while providing simultaneous interpretation at hearings for anything spoken by the judges or the parties. However, 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 (i.e., for purposes of calculating appeal deadlines, or with respect to any translation errors that may occur in the translated version of the decision).
Significance / Impact:
The Supreme Court’s new rules provide some guidance regarding managing International Panels and Cases. However, a number of details remain to be clarified by the courts through 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, and is likely to be closely watched by Korean patent practitioners for further guidance on how International Cases will be handled by courts going forward. Kim & Chang is representing the Australian company in this case.