South Korea

Frequency of M&A disputes

The number and value of Korean M&A deals have been continuously increasing since the 1997 Asian financial crisis. In particular, records were broken between 2014 and 2016, with sharp increases in M&A activity in the Korean market resulting from a significant number of inbound deals and many domestic trans­actions, partly driven by internal restructuring of Korean conglomerates and global and local private equity funds. Although there are no published statistics on how many M&A transactions result in litigation or arbitration, market trends show that the number of disputes has grown in proportion to the M&A market. In 2017 and 2018, the volume and value of M&A deals declined considerably but then shifted back to an increase in 2019. The number and value of M&A deals in 2019 reached 456 cases and US$60 billion, respectively, which is a 13.8 per cent year-on-year growth in value and the highest number of deals to date.[2] Notably, the growth in outbound investment appears the highest in overseas direct investment.[3]

With the outbreak of covid-19 in 2020, there was a negative effect on company liquidity and performance and, as a result, the volume and value of M&A deals declined to 391 cases and US$44.4 billion, respectively (an 18 per cent reduction from 2019).[4] In 2021, the market revived and the volume and value of M&A deals increased by 48.9 per cent over the previous year.[5] Although the number of M&A deals slowed down in the first half of 2022, the market expects the recovery to continue[6] and disputes regarding M&A transactions to continue increasing in the long term.

With the increasing sophistication of the Korean M&A market during the past 25 years, deal structures and contractual arrangements have become more complex and highly customised to meet the various needs of the parties. As a result, the nature of the claims and disputes has also become more varied, leading the courts and arbitral tribunals to address new and complex issues, and bringing more clarity to some previously ambiguous areas of law in the M&A context in the process.

Form of dispute resolution

Although the majority of M&A disputes that involve domestic parties are still predominantly resolved through Korean court proceedings, disputes arising out of cross-border transactions are much more frequently resolved through arbitration. ‘Phased’ dispute resolution, which requires mediation or expert determination prior to litigation or arbitration, is less frequently found in M&A contracts.

Data published by the Korea Fair Trade Commission indicates that the percentage of M&A deals in Korea involving at least one foreign party between 2014 and 2016 was around 22 per cent,[7] which is roughly consistent with our view on the ratio of contracts with arbitration clauses (involving one or more foreign parties) versus contracts selecting court litigation in M&A disputes. The outbreak of covid-19 in 2020 had a short chilling effect on the M&A market but it quickly recovered in 2021 and the percentage of M&A deals involving a foreign party remains largely the same.

Grounds for M&A arbitrations

The most frequently cited bases for M&A arbitrations are misrepresentations and breach of warranties. As misrepresentation and breach of warranty claims are provided for in most M&A contracts, parties are likely to be familiar with and comfortable about raising such claims. Given that most of the operative representations and warranties are provided by the seller, the majority of the claims are asserted by the buyer. Nonetheless, indemnity escrow arrangements are frequently used in Korea, and the seller at times will be the first to initiate a claim for release of the escrow amount, or raise it as a counterclaim.

Claims based on misrepresentation and breach of warranty are often accompanied by claims for breach of covenant. Claims regarding pre-closing covenants are closely aligned with misrepresentation and warranty claims (e.g., continuing obligation on the accuracy of representations and warranties, and the absence of material adverse change, notice or approval provisions). In situations where the buyer or target company are in the same industry as the seller, claims for breach of post-closing covenants (e.g., non-compete, non-solicitation and intellectual property issues) are also not infrequent.

Claims of tort relating to pre-contractual failure to disclose and fraud claims are possible under the Korean Civil Code, but are still rare in Korea. As various limitations on liability for breaches in M&A contracts are increasingly common, claimants are starting to consider ways around the limitation by raising tort and fraud claims either in arbitration together with other contractual breach claims or through parallel litigation.

The post-closing price-adjustment mechanism through use of closing accounts has been a common pricing method in Korea, but claims relating to price adjustments (often involving requirements for expert determinations) have been rare and are more generally raised as breach of representations and warranty claims. In cases where buyers retain a holdback as indemnity for price adjustments, sellers have initiated claims or counterclaims for release of the holdback.

Though not unheard of, claims relating to earn-outs are rare in Korea as earn-out mechanisms are not frequently used in sizable Korean transactions other than occasionally in transactions involving start-up companies or where the parties are unable to resolve their differences in valuation.

Disputes regarding failure to complete the transaction, especially in respect of break-up fees, are frequent in Korea, but the majority have been raised in litigation, as most of the operative agreements did not contain arbitration clauses. There is evidence of an increase in arbitration relating to failure to complete; for example, a high-profile dispute between two private equity funds regarding the cancellation of the acquisition of a parcel delivery company settled in 2018.[8]

Disputes regarding the rights of minority shareholders to exit under shareholder agreements, such as a put option or a drag-along, have been on the rise. Several high-profile arbitration cases filed by financial investors in relation to their put option execution against the controlling shareholder are currently pending. In an appellate decision in 2018,[9] the court ordered a company to purchase the shares of the investors who were unable to exit using their drag-along rights when the company failed to cooperate in the drag-along process.

Following the outbreak of covid-19, we expect to see an increase in disputes focusing on the following issues:

  • interpretation of material adverse effect clauses as a prerequisite for closing;
  • applicability of force majeure in delaying or refusing to close; and
  • valuation changes resulting from fluctuations in the macroeconomy.

For instance, two separate M&A deals between air carriers in Korea were terminated a few years ago: one reportedly because of the buyer’s request for further due diligence following a sharp drop in the performance of the target company in the first quarter of 2020; and the other because of the seller’s non-fulfilment of a condition precedent regarding the handling of accounts payable.[10] These were indirectly caused by the prolongation of the covid-19 pandemic. Each of the deals eventually led to disputes relating to issues such as a claim for the return of a down payment and a claim for damages, which were allegedly caused by the collapsed deals, respectively.[11]

Fraud and failure to disclose

Claims in respect of failure to disclose or fraudulent misrepresentation in M&A transactions are generally raised by the buyer in connection with the information or representations provided by the seller during due diligence or contract negotiations. These claims are often brought for breach of representations and warranties terms in the contract, and the substantive standards tend to follow the requirements provided in the language of the relevant provisions.

Separately from contractual claims, a tort claim based on fraudulent misrepresentation or failure to disclose could be brought by the buyer. According to general statutes on tort under the Korean Civil Code, the party claiming tort would be required to prove four elements to establish tort liability: unlawfulness of the act, wilfulness or negligence, damage, and a causal connection between the act and the damage. However, a tort claim based on fraud is less frequently raised in M&A disputes as it would require an exceptional situation where the failure to disclose amounted to fraud, wilful concealment or deception. In exceptional cases, fraudulent misrepresentation or failure to disclose may also give rise to a statutory claim of rescission under the Korean Civil Code. To establish a rescission claim, it would require strict proof of the following four elements: deceptive conduct, the intent to deceive and induce a party to enter into a contract, unlawfulness of the act, and a causal connection between the deceptive conduct and the party entering into the contract.

A frequent defence raised by sellers in responding to claims relating to failure to disclose or misrepresentation is that the buyer had actual knowledge of the allegedly undisclosed or misrepresented facts and should not be allowed to claim damages based on the good faith principle. In 2015, the Korean Supreme Court rendered a notable decision regarding the ‘knowledge’ defence.[12] The Court held that the buyer’s prior knowledge of the seller’s misrepresentations and breach of warranties at the time of the execution of the agreement should not affect the buyer’s right to seek a remedy, unless the parties expressly agreed to exclude matters known to the buyer from the scope of representations and warranties. The Supreme Court added that limitation of contractual right by the application of the good faith principle should be made only in extremely exceptional cases. This decision sets a clear precedent in favour of sandbagging in M&A disputes where the underlying M&A contract does not contain an anti-sandbagging clause.

Burden of proof

The basic rule for burden of proof under Korean law is that each party bears the burden of proving the facts on which it seeks to rely. As a result, the claimant must prove the underlying facts that constitute its claim, and the responding party must prove the facts for its defence. This distribution of burden of proof is consistently applied, unless the burden is switched or alleviated by act of law or established jurisprudence.

Switching or alleviation of the burden of proof is applied in limited circumstances under Korean law. For instance, Korean courts have applied an ‘alleviated’ standard for establishing causation between environmental harm and damages considering its technical and complex nature. However, this alleviation of burden of proof has not often come up in the context of M&A disputes.

Under the Civil Code, although ‘wilfulness or negligence’ is an element of breach of contract, in contrast to tort claims the claimant is not required to prove wilfulness or negligence of the non-performing defendant. It is up to the non-performing party to prove the absence of wilfulness or negligence as part of its defence; for example, by establishing that the non-performance is attributable to circumstances beyond its control. If it is established that the performance became impossible through no fault of either party, the parties are released from their obligations under the contract. The statutory effect is similar to force majeure even if a force majeure clause is not specifically included in the contract.

Knowledge sharing

There are no specific rules or standards on whether the knowledge of management or other representatives of the target can be treated as knowledge of the sellers, who are often shareholders of the target. In practice, terms are often included in M&A contracts to determine the scope of groups’ knowledge. Therefore, the decisions of the courts or the arbitral tribunals largely depend on the facts of the case and the contractual language on the scope of knowledge.

If there is no particular definition or provision in the agreement with regard to the criteria of persons whose knowledge is taken into account, general principles from the Commercial Code will be applied to interpret the agreement. The knowledge of the seller’s directors, who make material business decisions of the company through board resolutions, would be considered as the seller’s principal knowledge, and if any of the seller’s directors were also serving as directors of the target, their knowledge is likely to be seen as the seller’s. Generally, such directors are the registered directors who are official members of the board.

However, in the context of director’s liability, the Commercial Code expands the meaning of ‘directors’ to unregistered directors or persons under various titles that have de facto control or influence over the operations of the company or have active participation in the execution of the company’s business, which means certain persons exercising the authority of an executive officer or ‘management’ may be held to bear the same liability as a registered director. The same approach is likely to be applied in determining the scope of persons whose knowledge could constitute that of the company.

In determining whether knowledge held by certain representatives of the target should be imputed to the seller, the actual role, involvement and responsibilities of the seller in the target’s day-to-day management will be significant factors that the court will take into account. If any of the seller’s directors or executives were appointed as the target’s director or executive, those facts may be used as grounds to ‘pool’ the knowledge of the seller and the target. Also, according to the ‘expanded’ approach under the Commercial Code, participation by the seller in the target’s operation of its business is likely to contribute in establishing the nexus between the seller’s and the target’s knowledge. The actual pooling of knowledge is likely to depend on the facts of the case, including the role and responsibility of the relevant individual according to the by-laws or internal regulation of the company. In the context of M&A transactions, knowledge of the person in charge of the deal on the seller’s side would be particularly relevant.


As remedies for breach of contract in the context of M&A disputes, claimants may seek performance of specific actions, such as transfer of shares or assets as required under the contract, or seek compensation of monetary damages in lieu of performance. In practice, monetary damages claims are more commonly sought by claimants in M&A disputes in accordance with the contractual mechanism agreed between the parties, such as price adjustment and indemnification, or as general damages claims based on breach of contractual obligation or tort. In cases of specific performance, the award will take the form of an order requiring the respondent to take certain action, or of an order that is a constructive statement by the respondent (e.g., to provide consent).

Under the Civil Code, a party may terminate or cancel a contract based on non-performance of a material obligation by the other party. In addition to statutory termination rights, a party claiming fraud may seek to rescind the contract by arguing that the agreement was based on fraud by the other party. If such a claim is accepted, the expression of intention to agree to the contract is revoked and the contract is retroactively rescinded in accordance with the Civil Code. However, in practice, statutory rescission claims are rarely accepted in the context of M&A disputes.

Generally, contractual termination terms as defined in the contracts will be given deference, and statutory termination rights are less frequently used. Termination or cancellation of the transaction becomes less of an issue after the closing because most M&A contracts specify that no unwinding of the trans­action is allowed after closing.

The statutory interest rate for monetary damages is set at 5 per cent per annum under the Civil Code, unless otherwise agreed between the parties. However, the statutory rate of 6 per cent per annum can be applied under the Commercial Code where the parties are entities or natural persons in commercial business, which would likely apply to most M&A transactions. The Special Act on Expedition of Litigation[13] provides that an interest rate of 12 per cent per annum[14] shall apply to monetary damages claims from the date of filing of the lawsuit. Although this Act applies to litigation in Korean courts, some tribunals have applied this interest rate for arbitrations seated in Korea.

Measure of damages

The Civil Code defines two broad categories of compensable damages in both contract and tort claims under Korean law: ordinary damages and special damages. Ordinary damages are those that are commonly expected to result from a breach of contract or a particular tort. Although not specifically defined by law, ordinary damages can be claimed for loss that may be expected to flow ordinarily from the underlying act in question. The claimant needs to prove the amount of loss that was directly or proximately caused by the breach or the tortious act to recover ordinary damages. Special damages arise through circumstances that are specific to the parties’ situation other than ordinary damages. Special damages can be sought only when the breaching party ‘knew’ or ‘could have reasonably foreseen’ a given circumstance.

Under Korean law, punitive damages in civil claims are not recognised or recoverable, unless specifically provided by law; for example, the Product Liability Act prescribes ‘triple’ damages for intentional disregard of defective products.[15] In fact, if a foreign court judgment or an arbitral award governed by foreign substantive law grants punitive damages, it is possible that a Korean court would reject enforcement. The Civil Procedure Act specifically provides that the court shall reject enforcement of a foreign money judgment on damages if the judgment is in serious conflict with the laws of Korea. There are court precedents in which the punitive damages portion of a foreign judgment was excluded from the scope of enforcement, and for this reason, Korean courts may find arbitral awards ordering payment of punitive damages to violate public policy under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

Contractual liquidated damages and penalty provisions are recognised in Korean legal practice. Nonetheless, the Civil Code empowers the court to review and reduce the liquidated damages agreed between the parties if the court finds the amount to be unjustly excessive. In contrast, the court has no power, in principle, to reduce the penalty. Therefore, the claiming party usually attempts to portray the relevant provision as a penalty clause instead of liquidating damages to avoid discretional reduction by the court. This can become an issue with ‘break-up fees’ or ‘guarantee deposits’ in the M&A context, allowing the seller to terminate the contract by giving up the deposit delivered to the buyer, or the buyer to terminate by paying reverse break-up fees. Unlike penalties, if a court determines the guarantee deposits to be payment of liquidated damages for early termination, the amounts at issue may be subject to the review of the court.

In 2016, the Korean Supreme Court rendered a noteworthy decision on break-up fees, reversing the lower court decisions in a case brought by the buyer for the return of a performance guarantee deposit in a failed acquisition deal.[16] The key question was whether the guarantee deposit constituted a penalty or liquidated damages. Although the language of the contract expressly specified that the guarantee deposit would constitute a penalty for breach of the underlying agreement, the Supreme Court found that the facts strongly supported the nature of the guarantee deposit as that of liquidated damages for failure to complete the transaction. The Court also found the amount of damages to be excessive and accordingly ordered a reduction of the amount. The case demonstrates that Korean courts may be willing to look beyond the contractual language in determining the nature of the break-up fees, depending on the facts and circumstances of the dispute.

Availability of tort claims

Under Korean law, contract and tort are individual legal bases of a claim that may be raised separately or simultaneously in legal proceedings. This principle has been confirmed in several Supreme Court precedents, in which the Court ruled that contract and tort claims are two different subject matters of a dispute even if based on the same set of facts, and the claimant has the option to select the legal ground to argue.[17] Thus, there is no general legal doctrine that would prevent an injured party from recovering in tort as opposed to contract.

However, as set forth in the statutes under the Korean Civil Code, four elements – unlawfulness of the act, wilfulness or negligence, damage, and a causal connection between the act and the damage – need to be proven to establish a tort claim. Among these elements, ‘unlawfulness of the act’ is what distinguishes tort from a contract claim. The applicable standards in determining the unlawfulness of the act are (1) the materiality of the right that has been violated and (2) the degree of social order that has been violated. For instance, in a Seoul High Court decision in 1997 (in a case where a party allegedly suffered discomfort without any harm to life or health owing to the delays in the operation of a state-managed subway), the court held that, other than the claim based on breach of a transportation contract, the party’s tort claim against the state could not be granted.[18]

On the other hand, a party may be able to raise a tort claim if a contract claim is not available owing to certain restrictions, such as the lapse of statute of limitations or an exemption clause under a contract. In a Supreme Court decision in 1999 (in a case where a party was restricted from raising a contract claim against the carrier owing to an exemption clause under the carriage contract), the Supreme Court held that the exemption clause does not automatically extend to a tort claim unless there is an express or implied agreement, and accepted the party’s tort claim.[19]

As such, it is not always clear-cut whether a tort claim would succeed even if the same set of facts would give rise to a contract claim or vice versa. This would largely depend on the specific circumstances of the case and whether the burden of proof has been satisfied to establish tort under Korean law.

Law applicable to tort claims

Under Article 52(3) of the Korean Private International Law Act, if an existing legal relationship such as a contract between the tortfeasor and the injured party has been violated by a tortious act, the governing law of that contract shall also govern the related tort claim. Thus, if the parties agreed in the transaction documents that foreign law should apply to both contractual and tort claims arising out of or in connection with the transaction, the choice of foreign law would be enforceable in respect of the tort claim. This principle was endorsed by the Supreme Court decision in 2012, which involved a case where the parties entered into a fuel supply contract governed by US law, and the Supreme Court ruled that US law must also apply to the related tort claim.[20]

One caveat in Article 52(4) of the Korean Private International Law Act is that foreign law shall not be applied for damages claims arising from a tort claim if the nature of the claim is manifestly not proper for compensating the injured party or the scope of the claim exceeds the extent necessary for properly compensating the injured party.

Special substantive issues

Korean law provides a wide scope of set-off rights. The right to exercise set-off requires matching mutual obligations that are due and payable between the parties, but these obligations need not necessarily share the same contractual or factual grounds. As a result, most monetary payment obligations are considered to be eligible for set-off under Korean legal practice, unless parties specifically agreed to exclude those obligations from set-off. Set-off rights can be asserted within court litigation or arbitration proceedings and also outside the dispute context by notification of such an intention. Set-off is frequently argued in M&A disputes, as parties often hold corresponding payment obligations relating to indemnity payments, hold-back or escrow.

Claims of set-off under Korean law may create conflict with the jurisdiction of the tribunal in international arbitration. There is currently no certainty regarding the jurisdiction of the arbitral tribunal to examine a dispute relating to the exercise of set-off rights arising from a contract separate from the contract containing the arbitration agreement. If the responding party rejects the set-off by arguing that the alleged corresponding claim does not exist or is not due and payable, the arbitral tribunal may be asked to examine factual and legal matters beyond its jurisdiction, which may eventually subject the award to challenge. As such, in practice, set-off claims in international arbitrations are generally limited to claims arising from the same agreement or closely related agreements that are subject to arbitration.

Korean courts’ requirements for establishing the elements of force majeure are similar in substance to many other jurisdictions. However, the courts have traditionally interpreted the standards very strictly owing to the concern that exempting a party’s obligations by citing force majeure has the practical effect of shifting the damage or loss to the other party. Although possible in principle, it is difficult to find a case precedent in which a court exempted a party’s contractual obligation because of force majeure. For example, in a 2002 Supreme Court decision, the Court did not recognise the 1997 Asian financial crisis and the resulting setbacks affecting the supply of materials as a force majeure event, finding it to be a foreseeable event without clarifying the reasons for such a view.[21] Thus, we expect any international arbitration claims of force majeure under Korean law to give rise to various theories and arguments in interpretation and application.

There are also statutory warranty liability provisions under the Korean Civil Code, which buyers may invoke to raise warranty claims against sellers in M&A disputes. Such statutory warranty claim is a separate legal claim from a contractual warranty claim. The major difference between the two claims, among other things, is that statutory warranty claims have a stricter threshold of time-bar requirement than breach of contract claims.

Special procedural issues

The scope and procedure of document production in international arbitrations with a Korean nexus are not significantly different from the generally accepted practice in international arbitration proceedings. However, arbitrations under the Korean Commercial Arbitration Board (KCAB) domestic rules tend to follow Korean court litigation procedure, which allows a substantially narrower scope of document production compared with the generally accepted standard in inter­national arbitration proceedings. As in litigation, in KCAB domestic proceedings, there may not be a separate step for document production and, instead, a party may need to ask the tribunal to order the other party to produce certain documents during the arbitral proceedings. The party making the request must specify the documents being requested and provide the grounds for the request. In practice, production requests are usually limited to a narrow scope of specific documents with clear relevance.

With regard to experts, Korean court litigation procedure also allows evidence by party-appointed experts as in international arbitrations. In court practice, however, the Korean courts have a tendency to appoint their own expert when they require opinion on certain technical or quantum issues.


[1] Chul-Won Lee is a partner, Una Cho is a senior foreign attorney and Ji Hwan Kim is an attorney at Kim & Chang.

[2] Mergermarket South Korea Trend Summary Q1–Q4 2019.

[3] id.

[4] Mergermarket South Korea Trend Summary Q1–Q4 2020.

[5] Bloomberg League Table Q1–Q4 2021.

[6] M Kim, ‘72% of Korean CEO has M&A plans for this year…’, Maeil Business News Korea (9 May 2022), available at (in Korean) (last accessed 19 October 2022).

[8] H Ryu, ‘Cowell Fashion agrees to buy Logen from BPEA’, Pulse by the Bell (13 July 2021), available at (last accessed 19 October 2022).

[9] Seoul High Court Decision 2017Na2016899 rendered on 21 February 2018.

[10] G Song and M Choi, ‘Collapsed M&A deal adds to Asiana Airline’s woes while easing uncertainty for HDC’, Pulse by Maeil Business News Korea (14 September 2020), available at (last accessed 19 October 2022); and J Jun, ‘Jeju Air abandons acquisition of Eastar Jet’, The Korea Times (23 July 2020), available at (last accessed 19 October 2022).

[11] H Ryu, ‘Asiana’s legal dispute with HDC emerges as contingent risk for Korean Air’, the bell (27 October 2021), available at (last accessed 19 October 2022); and J Jun, ‘Eastar Jet, Jeju Air face court battles after takeover rupture’ The Korea Times (21 September 2020), available at (last accessed 19 October 2022).

[12] Supreme Court Decision 2012Da64253 rendered on 15 October 2015.

[13] The purpose of this Act is to award higher delay interest on successful monetary claims once court litigation is commenced so as to avoid intentional delay in litigation. It is arguable whether the Act also applies to arbitration seated in Korea.

[14] The interest rate under the Special Act on Expedition of Litigation was lowered from 15 per cent per annum to 12 per cent per annum in June 2019.

[15] Product Liability Act, as amended by Act No. 14764 of 18 April 2017, Article 3-2.

[16] Supreme Court Decision 2012Da65973 rendered on 14 July 2016.

[17] Supreme Court Decision 2016Da210474 rendered on 24 June 2021; Supreme Court Decision 2011Da29703 rendered on 25 August 2011; and others.

[18] Seoul High Court Decision 97Na9910 rendered on 11 July 1997.

[19] Supreme Court Decision 99Da8711 rendered on 13 July 1999.

[20] Supreme Court Decision 2009Da77754 rendered on 25 October 2012.

[21] Supreme Court Decision 2001Da1386 rendered on 4 September 2002.

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