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  Customs & FTA Bulletin (Issue 15) Korea KCS Implements the Taxpayer Advocacy Officer System Trend Toward Increased Document Submission Requirements related to Related Party Transactions and Other Matters in Customs Audits U.S.A. 2020 U.S. Presidential Candidates’ Policies on Trade CBP Gets Tough on Forced Labor: Turning Supply Chain Risks Into Advantages (Arent Fox article) India Enforcement of Strengthened Regulations for Management of Origin under FTAs in India since September 21, 2020 [Korean Version]

  2020.10.19
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  Korea’s Offshore Wind Collaboration Plan The Korean government's support for the development of offshore wind power in Korea has reached a crescendo. While interest in the nascent domestic offshore sector has been growing gradually for years, the ruling Democratic Party of Korea (the “Democratic Party”) upped the ante when it included a campaign pledge to implement a Green New Deal for Korea (the “Green New Deal”) as a key element of its party platform in Korea’s April 2020 National Assembly elections. Following the Democratic Party’s strong showing in these elections,1 the Blue House seized upon the Green New Deal as a means of catalyzing jobs creation, recovering from COVID-19-related economic sluggishness and revitalizing Korea’s industrial base and export industries while simultaneously achieving carbon neutrality and improving Korea’s energy security. On July 17, 2020 the Ministry of Trade, Industry and Energy (the “MOTIE”), the Ministry of Oceans and Fisheries (the “MOF”) and the Ministry of Environment (the “MOE”) jointly issued a “Plan for Offshore Wind Power Generation in Collaboration with Local Residents and the Fishing Industry” (the “OSW Collaboration Plan”). The OSW Collaboration Plan sets out specific measures to encourage the speedy development of large-scale offshore wind farms and trickle-down benefits to local stakeholders, and given the relative importance of offshore wind in Korea’s overall renewable energy transition,2 the OSW Collaboration Plan is tantamount to a de facto implementation plan for Korea’s Green New Deal. Korea’s Green New Deal On July 14, 2020, the Korean government announced that the Green New Deal would invest KRW 73.4 trillion to create 659,000 jobs in new and renewable energy sectors by 2025. Additional elements of the Green New Deal include: encouraging local stakeholder acceptance of and benefits from renewable energy projects through profit-sharing with developers and government-backed financing, etc.; providing government assistance in locating, planning and expediting renewable energy projects in energy clusters to be promoted by local governments; and encouraging increased demand for renewable energy by increasing the RPS obligations of large-scale thermal power producers and introducing new renewable energy off-take mechanisms such as indirect PPAs that will enable Korean companies to participate in the RE100 initiative.3 OSW Collaboration Plan Overview Following shortly on the heels of the official announcement of the Green New Deal, the OSW Collaboration Plan is the first glimpse at how the government intends to implement Green New Deal objectives in the offshore wind power sector. The stated objectives of the OSW Collaboration Plan are twofold: Install 12GW of offshore wind power, creating 87,000 new jobs annually, by 2030 to become one of the world’s five largest offshore wind power generating countries; and Share the economic benefits of offshore wind development with local residents and the fishing industry. The OSW Collaboration Plan will seek to achieve the above two objectives via the following three collaborative initiatives: Three Collaborative Initiatives 1. Government-led Siting and Streamlined Permitting Siting: The government will publish a marine cadastral map proposing potential offshore wind consideration zones and conduct feasibility studies therein. Local governments will lead the development of large-scale offshore wind farms in energy clusters. Permitting: The government will utilize marine spatial plans to promote large-scale offshore wind development. A one-stop-shop will be established for granting all required permits and approvals for offshore wind farms. 2. Encouraging Stakeholder Acceptance The government will devise stakeholder participation/profit-sharing models for implementation by local governments for offshore wind farms, in addition to the recent amendment of the Act on Assistance to Electric Power Plants-Neighboring Areas (the “Neighborhood Assistance Act”) to better suit the characteristics of offshore wind power. The MOTIE will promote demonstration projects to show the ability for offshore wind farms and fisheries to coexist. The MOTIE will require site consulting by experts and public consultations prior to issuance of electric business licenses (“EBLs”) for offshore wind farms.4 The government will implement certain measures to improve eco-friendliness through all stages of the project life cycle (construction, operation and restoration), including restoration performance security. 3. Leveraging Large-Scale Projects to Enhance Industrial Competitiveness The government will seek to expedite the construction of and prioritize grid connection for large-scale offshore wind farms. The MOTIE will seek to enhance industrial competitiveness in the offshore wind sector by: supporting domestic manufacturing of large-capacity and floating offshore wind power generation systems; and encouraging the growth of offshore wind infrastructure such as support docks, demonstration projects, domestic training and manufacturing facilities. The MOTIE will bolster offshore wind economic feasibility by: Revising the REC weighting system and notifying developers of projected REC allotment in advance of COD; and Providing financial guarantees and low-interest loans to developers and OEMs that demonstrate low carbon emissions. Implications Although many details will only be available in the coming months, the OSW Collaboration Plan commits to address many of the key concerns raised by offshore wind developers in Korea. It pledges to, inter alia, (i) clarify and coordinate the process of obtaining local stakeholder acceptance (through such mechanisms as public-private councils including fishermen cooperatives and government-supported profit-sharing models), (ii) streamline regulatory approvals through the creation of a one-stop-shop, (iii) introduce standardized marine cadastral maps and a more coordinated marine spatial planning approach, (iv) strengthen cross-agency coordination to shorten project timelines and (v) foster the growth of the local offshore wind ecosystem and a globally competitive supply chain through government backing of a few specific offshore wind mega-complexes. 1 The April 2020 elections resulted in the Democatic Party-led coalition winning a historic supermajority in Korea’s National Assembly. 2 Korea is mountainous and densely populated, but its coastline is 2,413 Km long and areas of high electricity demand are relatively close to the coastline. The government is targeting 12GW of installed capacity in offshore wind power by 2030 (and 20GW by 2034), as compared to the 124.5MW currently in operation. 3 Korean law does not currently provide for any mechanism that would enable Korean companies to participate in RE100 such as a green pricing system (where electricity consumers purchase electricity derived solely from renewable energy sources in exchange for payment of a “green premium”) or large-scale indirect PPAs (where energy generators and energy consumers enter into tripartite or back-to-back power purchase agreements with the utility—PPAs are currently only available for renewable energy projects no larger than 1MW, which can only be entered into by and between energy generators and Korea Electric Power Corporation (“KEPCO”)). Korea’s RPS (Renewable Portfolio Standards) requires large electricity generators whose generation capacity exceeds 500MW to source a certain percentage of their electricity from new and renewable energy. 4 This will also apply to onshore wind, solar PV and ESS projects.

  2020.10.05
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  KFTC Issues Public Notice on Proposed Enactment of the Fair Online Platform Intermediary Transactions Act On September 28, 2020, the Korea Fair Trade Commission (the “KFTC”) introduced a proposed bill titled the Fair Online Platform Intermediary Transactions Act (the “Proposed Bill”). The Proposed Bill is intended to address the growing concern that the existing legal framework under the Monopoly Regulation and Fair Trade Law (the “FTL”) may be inadequate to tackle competition issues arising in the online platform sector, in light of the growing prominence of the digital economy and e-commerce. The Proposed Bill will undergo a 40-day public comment period from September 28, 2020 to November 9, 2020. Subsequently, the KFTC will review the comments received, amend the Proposed Bill as necessary, and submit it to the legislature for deliberation and voting. Below is a summary of the key contents of the Proposed Bill. Subject Companies Scope of services: The Proposed Bill will apply to “services intermediated by online platforms,” which it further defines as “services intermediating the initiation of exchanges of services and products between platform users and consumers.” The specific types of intermediary services to be regulated are to be set forth in the Presidential Decree for the new statute. Revenue/transaction threshold: The Proposed Bill will apply to online platform operators of a certain size. The threshold amount, within the range of KRW 10 billion in total annual revenues or KRW 100 billion in total intermediary transaction amount, is to be set forth in the Presidential Decree. Local nexus: Given the cross-border nature of online platform services, the Proposed Bill explicitly provides for extraterritorial application of the law regardless of where the operator is located or incorporated, as long as the operator intermediates transactions between Korean sellers using the online platform and consumers in Korea. Requirements Written contract: Online platform operators subject to the Proposed Bill must provide to the sellers and execute a written contract containing the key contract terms (including, but not limited to, any exclusivity or other provision that restrict a seller’s ability to use other platforms, terms governing price, volume, delivery, sales and payment methods, and terms that address the scope and method of sharing information with the sellers generated during the use of the online platform). Notice obligation: Subject online platform companies must provide notice to the sellers before amending any contract terms or restricting, suspending, or terminating any of their services. Prohibition of unfair trade practices: The Proposed Bill has incorporated certain FTL provisions regarding prohibited conduct under abuse of superior bargaining position. Such forms of prohibited conduct against the counterparty include forcing purchase of unwanted goods/services, demanding economic benefits, imposing economic disadvantages or unfavorable contract terms, and interfering with the counterparty’s management of its business. All other FTL provisions, including those prohibiting abuse of market dominance and unfair trade practices other than abuse of superior bargaining position, will continue to apply to online platform operators. Sanctions and Other Enforcement Mechanisms In the spirit of not hindering innovation, the Proposed Bill provides for reduced scope of criminal penalties, but higher administrative fines. The Proposed Bill provides for a consent decree system to allow companies to voluntarily address and correct any violations. A dispute mediation council is to be established under the auspices of the Korea Fair Trade Mediation Agency (“KOFAIR”) which can mediate disputes between online platform operators and users. The Proposed Bill provides a statutory basis to conduct written surveys of the online platform sector. As the sector continues to grow, the KFTC will likely be conducting surveys to promptly identify and address any competition issues that may arise in the future. [Korean version]

  2020.09.29
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  Kim & Chang Legal Newsletter (2020 Issue 3) This issue includes: Proposed FTL Amendment Bill Latest Legislative Trends Towards the Improvement of Corporate Governance New Amendment to Patent Act Will Increase Damages That Can Be Awarded for Infringement Amendment to the Guidelines on Influencer Marketing Implementation of Packaging Recyclability Grade and Labelling System Strengthened Regulation of the Use of Hazardous Substances in Electronic & Electrical Products Commencement of Virtual Hearings Under the COVID-19 Situation According to the Updated 2020 LCIA Arbitration Rules and the Newly Issued ICC Guidance Note US Department of Commerce’s Regulations on Adverse Facts Available and Recent Cases Main Amendments to the Customs Act Included in the 2020 Proposed Tax Law Amendments Amended FSCMA Relaxes the Regulations on Information Barriers, Outsourcing of Business Functions, and Engagement of Concurrent or Ancillary Businesses by Financial Investment Service Providers Proposed Legislation for the Act on Supervision of Financial Groups Submitted to the National Assembly’s Plenary Session New Regulations Modify Low-Surrender-Value Insurance Products, Strengthen Competitiveness of Insurance Business and Reinforce Consumer Protection Property Tax and Aggregate Real Estate Tax on Land of Private REF/REIT Affected by Amendments to the Enforcement Decree of the Local Tax Act MOLIT Proposes Changes to the Enforcement Decree and Enforcement Rules of the Act on Report on Real Estate Transactions Concerning Corporations’ Housing Transactions Notable Proposed Tax Law Amendments of 2020 Stricter Liability on Online Service Providers to Prevent Distribution of Illegal Sex Images and Videos New Requirement and Enhanced Obligations for Value-Added Telecommunications Service Providers to Secure Means for Stability of Service Kim & Chang Legal Newsletter (2020 Issue 3)

  2020.09.28
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