해외 M&A 과정에서의 인사 및 노무와 관련된 법적, 실무적 쟁점

Ⅰ. Introduction As the world’s economy increasingly becomes globalized, international transactions (M&A) are on the rise and as such transactions become more frequent, employment and labor related issues cannot be excluded amongst the legal due diligence items. Without a close review of the potential employment and labor issues of the target,the success of the M&A would be at stake. In short, a thorough analysis of the employment and labor issues of the target is necessary for a successful M&A. Ⅱ. Employment and Labor Related Issues to Consider in an global M&A First, it should be understood that the employment and labor related laws as well as consequent practices may be significantly diverse and different depending on location of the target. Second, given the diversity and differences from country to country, close coordination and communication with local employment and labor law practitioners is essential. In this regard, it cannot be stressed enough how important of a role effective and efficient communication can play in the daily progress and eventual success of the M&A. Ⅲ. Examples of Employment & Labor Related Issues of Specific Countries Ⅳ. Case Study of an Outbound M&A (Korean company acquisition of a US based global company)First, it became very clear early on in the transaction that an understanding of the significant differences in compensation structure for top management of foreign entities from those of Korean companies was necessary. Second, as a practical matter, replacement of key personnel in a newly acquired overseas entity is difficult to achieve by local Korean management, therefore, retention of the key personnel was critical, at least for the successful short-term operations of the newly acquired overseas entity. Third, in contrast to Korea, which has a nationalized health insurance system, the cost of private health insurance as a general welfare benefit to employees by US employers (at the time of this transaction) constituted a significant portion of labor costs. Fourth, in another contrast to Korea, which mandates retirement benefits under either the statutory severance system or an option to convert to a system of corporate pensions, the US mostly leaves such benefits up to the discretion of the employer, which has resulted in a number of various types of benefits, which are in turn governed by very complicated and detailed laws. Fifth, while an overseas company looking to acquire a domestic Korean company often has concerns about the employment relationship due to the strict “just cause” requirements under the Korean Labor Standards Act, we found the domestic Korean company facing much less stringent employment relationships under the “at-will” employment system applicable generally in the US. Sixth, the nature of employment and labor disputes were found to be quite different between Korean and the US, with the US disputes focusing more on discrimination and sexual harassment issues. Ⅴ. Conclusion As our companies continue to venture out to the global marketplace and engage increasingly in international M&As, the purpose of this article was hopefully to provide insight on why there is a particular need to be aware of the different employment and labor related issues of various countries and, to share with you the experiences of relevant professionals by providing a comparison of specific issues applicable to the US and China, which markets many of our companies are currently entering, as well as a few other countries, and to analyze those issues that, in practice, raised the most significant concerns in a case study of one of the biggest outbound M&As in recent Korean history. Due to the significant diversity in employment and labor laws and practices of various countries, it is quite difficult to generalize about employment and labor related issues that may arise in any particular M&A and the writer would like to seek understanding for not being able to fully cover all the numerous issues that this topic entails with his limited experiences, however, it is hope that with regard to such issues,further study and discussion will develop herefrom.