Extraterritorial Application Clause in the Korean Capital Markets Law and Its Implications to the Choice-of-Law Rules for Prospectus Liability: Focusing on the Comparison with the Extraterritorial Application of Administrative Regulation and Criminal Punishment
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Prospectus liability stipulated in Article 125 of Korea’s Financial Investment Services and Capital Markets Act (“KCMA”) is one of the regulatory provisions for securing the effectiveness of disclosure regulation regarding securities offerings. However, it is uncertain which law should govern cases in which the issuer is a foreign company and/or the securities are offered to the public in a foreign capital market and whether Article 125 of the KCMA should be applied to these cases. Article 2 of the KCMA is an extraterritorial application clause based on the effects principle, but the clause cannot be applied uniformly to administrative regulation, criminal punishment, and civil liability. Administrative regulation provisions take the territoriality principle as a starting point and expand the scope of extraterritorial application through the effects principle, and criminal punishment provisions take both the territoriality principle and the nationality principle and delimit the scope of extraterritorial application through the effects principle. With respect to Article 125 of the KCMA, the effects principle does not function significantly, since the law applicable to prospectus liability should be determined in accordance with the rules of private international law. If the place of occurrence of the tortious event incurring pure economic loss is determined unitarily as the place where the market is located, and the term “an effect on Korea” in Article 2 of the KCMA is interpreted reasonably, the effects principle only has the meaning of confirming the results of designating the applicable law according to the rules of private international law. As such, the supplementary function of Article 2 of the KCMA as a special choice-of-law rule is rather restrictive.
Abstract
Prospectus liability stipulated in Article 125 of Korea’s Financial Investment Services and Capital Markets Act (“KCMA”) is one of the regulatory provisions for securing the effectiveness of disclosure regulation regarding securities offerings. However, it is uncertain which law should govern cases in which the issuer is a foreign company and/or the securities are offered to the public in a foreign capital market and whether Article 125 of the KCMA should be applied to these cases. Article 2 of the KCMA is an extraterritorial application clause based on the effects principle, but the clause cannot be applied uniformly to administrative regulation, criminal punishment, and civil liability. Administrative regulation provisions take the territoriality principle as a starting point and expand the scope of extraterritorial application through the effects principle, and criminal punishment provisions take both the territoriality principle and the nationality principle and delimit the scope of extraterritorial application through the effects principle. With respect to Article 125 of the KCMA, the effects principle does not function significantly, since the law applicable to prospectus liability should be determined in accordance with the rules of private international law. If the place of occurrence of the tortious event incurring pure economic loss is determined unitarily as the place where the market is located, and the term “an effect on Korea” in Article 2 of the KCMA is interpreted reasonably, the effects principle only has the meaning of confirming the results of designating the applicable law according to the rules of private international law. As such, the supplementary function of Article 2 of the KCMA as a special choice-of-law rule is rather restrictive.
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