International Jurisdiction to Adjudicate under the Korean Private International Law : Analysis of Recent Leading Cases of the Supreme Court of Korea

Abstract

This article aims to explain the principles on international jurisdiction to adjudicate under the Korean private international law, by way of analyzing the recent leading cases published in the Gazette of the Supreme Court of Korea: the Hewlett Packard Co. case (Docket No. 2002Da59788 delivered on January 27, 2005) and the Air China Ltd. case (Docket No. 2010Da18355 delivered on October 15, 2010). The two cases have presented specific criteria and directions to interpret the Article 2 of the Korean private international law amended in

2001. Along with the purpose, this article also gives an explanation on the so-called four-step-formula adopted by the Supreme Court of Korea as well as the legislative situation and scholarly theories before the amendment of the Korean private international law. This article afterwards elaborates the facts and the argumentations of the each party of the above mentioned cases meticulously. The Article 2 of the Korean private international law set forth the principle of substantial relationship and the doctrine of reasonableness (consideration of

interests) in deciding international jurisdiction. The Article 2 also declares that detailed rules on international jurisdiction should be developed by consulting the venue provisions of domestic laws. The Hewlett Packard Co. case and the Air China Ltd. case reaffirmed and specified the general principles: The determination of the international jurisdiction should follow the basic idea of aiming to achieve impartiality between the parties, and appropriateness, speediness and economy of litigation, and should take into account not only private interests such as

impartiality between the parties, and convenience and predictability of the parties, but also the interests of the court or the state such as appropriateness, speediness and efficiency of litigation and effectiveness of judgment. For the Air China Ltd. case, the Supreme Court of Korea also emphasized the undeniable importance of respecting the provisions of domestic law on intra-territorial jurisdiction. In addition, based on the Hewlett Packard Co. case, this article analyzes the applicability of the doctrine of forum non conveniens under the Korean private

international law.