An Analysis of Choice-of-Law Rules in Tort Claims for Illegal Cartel Conduct: With Focus on Seoul Central District Court Decision 2014Gahap504385
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The Seoul Central District Court made a long-awaited ruling on a tort claim resulting from a cartel of thin-film-transistor liquid-crystal display product manufacturers. This article illustrates that the ruling seems to have given insufficient consideration to laws and jurisprudence surrounding the extraterritorial application of Korea’s Monopoly Regulation and Fair Trade Act and the determination of applicable law. This article provides a comprehensive theoretical overview of extraterritorial application in general, damage liabilities in the case of illegal cartel conduct as defined by Korea’s Monopoly Regulation and Fair Trade Act, and choice-of-law rules according to Korea’s Private International Law Act. This article argues that in the case of illegal cartel conduct, the logical and equitable way to interpret articles of Korea’s Private International Law Act about applicable law in cases of tort is to do so in a way that bypasses the principles of party autonomy, accessory connection, and the location of the common principal place of business, instead returning to the principle of lex loci delicti commissi. This article discusses how the principle of lex loci delicti commissi can be applied to illegal cartel conduct, namely how one could identify a place of conduct and a place where the results emerged in illegal cartel conduct. It argues that the principal place of business of a tort victim constitutes both the place of conduct and the place where the results emerge in illegal cartel conduct.
Abstract
The Seoul Central District Court made a long-awaited ruling on a tort claim resulting from a cartel of thin-film-transistor liquid-crystal display product manufacturers. This article illustrates that the ruling seems to have given insufficient consideration to laws and jurisprudence surrounding the extraterritorial application of Korea’s Monopoly Regulation and Fair Trade Act and the determination of applicable law. This article provides a comprehensive theoretical overview of extraterritorial application in general, damage liabilities in the case of illegal cartel conduct as defined by Korea’s Monopoly Regulation and Fair Trade Act, and choice-of-law rules according to Korea’s Private International Law Act. This article argues that in the case of illegal cartel conduct, the logical and equitable way to interpret articles of Korea’s Private International Law Act about applicable law in cases of tort is to do so in a way that bypasses the principles of party autonomy, accessory connection, and the location of the common principal place of business, instead returning to the principle of lex loci delicti commissi. This article discusses how the principle of lex loci delicti commissi can be applied to illegal cartel conduct, namely how one could identify a place of conduct and a place where the results emerged in illegal cartel conduct. It argues that the principal place of business of a tort victim constitutes both the place of conduct and the place where the results emerge in illegal cartel conduct.
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