Monday, 25 January 2016

Court ordered Disclosure of the Negotiating Documents of KorUS FTA

This is a rare victory. The court has long been reluctant to raise hands of individuals having rights to know, especially when it comes to trade agreements. Back in 2007 when the KorUS FTA talk was close to a conclusion, the court decided in favor of the Korean government to keep confidential draft texts of the FTA. We have two additional court decisions rejecting the request for information disclosure of negotiating documents of KorUS FTA in 2008 and in 2009.

In January 21st 2016, the Korean Administrative Court in Seoul held, in favor of the plaintiff, the Lawyers for a Democracy Society, that the negotiating documents of the KorUS FTA be disclosed. Yet it is too early to expect that we may soon see the whole documents because the defendant (S. Korean Government) is very likely to appeal and the court ruling is confined to one specific paragraph in the preamble of the FTA.

Agreeing that foreign investors are not hereby accorded greater substantive rights with respect to investment protections than domestic investors under domestic law where, as in the United States, protections of investor rights under domestic law equal or exceed those set forth in this Agreement;

This paragraph was omitted in the text (Korean version) published by the Korean government on May 25, 2007 but included in pact actually signed on June 30, 2007. Like the US FTAs with Panama, Colombia and Peru, such a preamble language was added “as part of a May 10, 2007 deal with the Bush administration” to address the concerns over investment rules allowing foreign investors to bypass national legal system.

The added paragraph was controversial in Korea because it was unclear whether the paragraph applies to only the United States or to both trading parties. And if the preamble language effectively limits the investors’ rights to those provided by the domestic law, there would be no need to include the notorious investment provisions in the FTA text.

In the litigation, the SKG asserted that (i) the information sought to be disclosed by the plaintiff contains detailed positions taken by both trading partners and negotiating strategies of SKG, and if opened, it can be inevitably made use of by other countries in the future negotiations; and (ii) that the disclosure of the information may cause a diplomatic trouble and trade conflict with the United States. Therefore, according to the SKG, the information pertains to the foreign relations exempted under Article 9(1)(ii) of the Official Information Disclosure Act [See below].

Likelihood of Utilization by Other Trading Partners

Regarding the harm to national interests, the court stressed that the speculative and abstract assertion of the likelihood of the information utilized by other trading partners in the future negotiations repeatedly made by the SKG was not sufficient. The court pointed out that the SKG failed to show what kind of negotiating strategy was included in the information, how the information would be used by the future trading partners, and what kind of disadvantage the SKG would experience by the exposure of the information.

Further, after a closed investigation of the negotiation documents, the court concluded that they were drafted for one specific paragraph of the preamble by the U.S. and Korean negotiators, containing no or little information on other twenty-four chapters consisting of the KorUS FTA, and there would be little risk to expose the basic position or core strategy of the SKG.

Diplomatic Conflict between the U.S. and S. Korea

The court found that the defendant failed to prove that there was sufficient justification for the diplomatic trouble or trade conflict caused by the disclosure of the documents. Further, both governments agreed to keep confidential the negotiation documents for three years from the effective date of the FTA and the period has lapsed in March 14, 2015. Then, the court said, it is hard to expect that the U.S., the one side of the agreed parties, would oppose or resist against the disclosure of the subject information.


Official Information Disclosure Act (OIDA, enacted in 1996 and has been in force since January 1998)

Article 9 (Information Subject to Non-Disclosure)
(1) All information kept and managed by public institutions shall be subject to disclosure to the public: Provided, That any of the following information may not be disclosed:...(ii) Information pertaining to the national security, national defense, unification, diplomatic relations, etc., which is deemed likely to seriously undermine [vital] national interests, if it is disclosed;

[Note: The original provision written in Korean clearly requires the national interests exempted by Article 9(1)(ii) by "vital" but the English text, even official one, erroneously omits the crucial word "vital".]

The Court Decision in Korean available here

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