Herbert Smith Freehills has received approval from the South Korean Ministry of Justice on Friday to operate an office in Seoul as an Australian firm to prepare for Brexit. The Seoul office reopens after the firm closed it for four days during the approval process.^

Australian-qualified senior associate Ken Nam is the firm's new office representative in Seoul.^

Herbert Smith Freehills' six-year-old Seoul office was until March 11 registered as a foreign legal consultant office of a firm with headquarters in the U.K. Under Korean law, only law firms with headquarters in countries that have a live free trade agreement (FTA) with Korea are allowed to set up offices in Seoul.^

U.K. firms in Seoul have been operating their foreign legal consultant offices under Korea's FTA with the European Union. But as Britain prepares to leave the E.U., British firms' Seoul offices may no longer be covered by the E.U.-Korea FTA.

It is unclear whether or not the U.K. firms' Seoul offices will be allowed to continue operation after March 29, when Britain is scheduled to withdraw from the E.U. In its response to The Asian Lawyer last week, the Korean Ministry of Justice said it is still reviewing post-Brexit policy regarding foreign law firms.

One option available to the British firms is to re-register their Seoul office's licence to one from a country that has an FTA with Korea. Herbert Smith Freehills Seoul partner Mike McClure told The Asian Lawyer last week that the firm is applying to register as an Australian firm. Australia and Korea have had an effective FTA since 2014.

According to the justice ministry, in order to re-register, the government must first cancel the licence of the current E.U. FTA-based foreign legal consultant office, and the firm must then file a new application for a foreign legal consultant office based on a separate FTA. During that process, firms must suspend their legal operations in Seoul.*

"Regulators require that our office closes for legal services until the new registration is received," said McClure in an emailed statement. "We respect that requirement and see it as a short-term price to pay for the longer-term certainty to operate without issue after Brexit."*

The Korean Foreign Legal Consultant Act, the governing regulation for foreign lawyers and foreign law firms in Korea, requires firms to register their Seoul offices under a home jurisdiction where a "principal office" is located and the "highest decisions are made".

Herbert Smith Freehills' roots in both Britain and Australia afford the firm the ability to re-apply for a new licence. It is unclear whether the rest of the U.K. firms – Allen & Overy, Clifford Chance, Linklaters and Stephenson Harwood – are able to follow suit. The justice ministry said it will determine whether an office is a "principal office" on a case-by-case basis.

"Our team is particularly grateful to the South Korean Ministry of Justice and the Korean Bar Association for their quick consideration of our application, and to the British and Australian embassies for their support since this issue first arose," Hong Kong-based Asia managing partner Justin D'Agostino said in a statement.^

Herbert Smith Freehills' Seoul office has eight lawyers, including office managing partner Dongho Lee and disputes partner McClure, who has until March 11 been office representative.^

^Updated March 15: This story has been updated to reflect that Herbert Smith Freehills received approval from the Korean Ministry of Justice to re-register as an Australian firm on March 15 and with a statement from Asia managing partner Justin D'Agostino.

*Updated March 12: This story has been updated with a statement from Herbert Smith Freehills Seoul partner Mike McClure. 

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