I recently attended an ABA meeting regarding antitrust issues in Seoul, Korea. A number of US lawyers and regulators were present to discuss the ABA's position on antitrust as well as to emphasize the fact that from a regulator's standpoint, there was no place to hide from antitrust regulations, especially those regarding cartel issues, IP issues and even aftermarket concerns. (more…)
Korea’s KFTC- At The Crossroads Between Antitrust and Intellectual Property
In 1995, the United States Department of Justice (DOJ) published guidelines for providing guidance regarding the application of antitrust principles to intellectual property agreements covering the licensing of intellectual property rights. The Antitrust Guidelines for Licensing of Intellectual Property (the “1995 Guidelines”) set the stage for the antitrust review of intellectual property in the US. (more…)
Companies Have E-Discovery Issues In Arbitration
Though changes in the US Federal Discovery Rules as well as case law such as Zubulake have escalated the Electronically Stored Information (ESI) costs as it relates to electronic discovery or discovery of ESI documents and information (E-Discovery) in the US, Korean companies have remained relatively complacent about it until the Dupont v Kolon case. (more…)
Arbitration- A Great Dispute Resolution Tool in Korea
Korea, like other countries has acknolwedged the concerns its companies have over international litigation. And Korea, like other countries has jumped on the arbitration bandwagon. Arbitration is a contractual mechanism that parties use to avoid litigation. As it is a contractual mechanism, the parties are free to determine the procedural requirements, number of arbitrators, governing law, and other key provisions, etc. (more…)
I recently gave a lecture on negotiating with South Korean companies to a group of business students. I realized that not only most employees are never trained in negotiations but that many business students are not exposed to the art of negotiating as well. It is true that when thinking about risk management, especially in an international context, negotiations do not usually come to mind. However, negotiations can be used to resolve disputes, internal and external to a corporation, prior to such disputes turning into litigation. (more…)
You may already be in a crisis and not know it----One of the main problems with managing a crisis is that the crisis event may have occurred long before a company realizes it is actually in the middle of a crisis. Companies tend to disregard the warning signs of a crisis up until the very end, leaving very little room to maneuver and limiting a company’s options. If you scratch the surface of a corporate crisis you will find the signs were there months in advance. Yes, there was indeed trouble but departments don’t like to raise red flags. People don’t want to lose out on bonuses-it human nature. Who wants to rock the boat and get blamed ? That is precisely why you should think of your company as already being in a crisis or in a pre-crisis stage. Because, it probably is.
When talking to your staff or to other departments, how often have you heard the phrase “That the way we have always done things.” Just because corporate processes have been done one way doesn’t mean that the best way or even in todays’ fast changing world- the right way. Even after 2008 many companies continued to use the failed metrics that got them into trouble in the first place. Even the credit markets haven’t changed as much as you would think after 2008. Why?
I truly believe that once processes are created in a corporate or bureaucratic environment, it is as if the processes have been set in stone. They are very hard to change. Even if the world around the company has changed. It is human nature to accept what has been done in the past. Few people want to “rock the boat” even if the proverbial boat is actually sinking. Companies get into real trouble because of this. What happens if the company’s business model actually is out of date and is no longer viable? Just because it worked in the past doesn’t mean it will work in the future. What about your company’s products and services? If your company relies too heavily on a particular product and that product is found defective or non-conforming that could spell catastrophe. Has your QC department verified all production protocols have been met? What about sub-components? Does your company rely on third parties to provide key components? Have you outsourced your service department to a third party service provider? Are you monitoring your third party suppliers?
I therefore caution everyone not to blindly accept the status quo even when it appears things are humming along. What about your company’s risk management processes? Are those up to date? Risk managers as well as in house counsel and other managers should be challenging risk management metrics on a regular basis. Counsel should be auditing departments on a regular basis. Does your compliance program really work? Maybe it did 5 years ago. But what about today
If local or national laws have changed maybe the current manufacturing processes are out of date. If the products that your company manufactures or the services it provides have changed maybe the internal processes surrounding the review of those products and services are out of date. What about the current social environment? When reviewing your current product liability review processes have you factored in the new risks created by the Internet of all Things? These risks are real. Are you ready for them?
It is a fundamental truth that all things change. Some change faster than others. Regardless, don’t rely on your old or standard risk management processes to continue to provide the same level of comfort they did in the past. Continue to review and to modify them if necessary. Dont rely on your manufacturing processes- they could also be out of date.
Remember; whether you know it or not, your company might already be in a crisis. Maybe it is time for a crisis management review.
