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Samsung, the hedge fund and the law

Legal pressures on South Korea's biggest company could help bring corporate reform

| South Korea
South Korean chaebols, such as Samsung, make its economy dangerously top-heavy.   © Reuters

Samsung's Lee Jae-yong may be out of prison, but the de facto head of the family-owned South Korean colossus may be feeling confined all over again.

The walls are closing in on Lee's empire from two directions.

On one side, there is a lawsuit filed by Paul Singer, the activist American investor who is spotlighting Samsung's incestuous relations with the government -- ties that led to prison terms for both Lee and former President Park Geun-hye.

On the other, there is Yoon Seok-yeol, Seoul's energetic recently-appointed chief prosecutor, who is pushing a criminal investigation into Samsung for alleged accounting fraud with a fervor new to Korea Inc.

This double squeeze puts Lee and fellow Samsung executives in an uncomfortable place. But for the company's investors this could be the long hoped-for moment when Korea finally gets serious about shaking up an uncompetitive economic system.

It is still an open question, of course. In the two years since President Moon Jae-in moved into the Blue House, his team has been slow to curb the monopolistic practices of the dominant chaebols -- or corporate groups.

Moon has mostly focused on the stuttering peace talks with North Korea. Important for sure, but those efforts have distracted Moon from promised moves to revitalize the economy and support small-to-midsize enterprises and startups.

A key part of Moon's mandate was cleaning up the mess left by Park's impeachment. She is serving a 25-year sentence related to the same bribery and corruption scandal that landed Lee in jail for a year (Lee walked free in February 2018 after judges suspended his two-and-a-half-year sentence. His appeal against conviction for bribery is before the Supreme Court).

The lawsuit filed by Singer's Elliott Management relates to that scandal. The investment fund seeks $770 million in compensation from Seoul for losses from a 2015 merger of two Samsung units. The suit alleges that interventions by Park's administration (which led later to her ouster) and the National Pension Service, a key Samsung shareholder, paved the way for the union of Samsung C&T and Cheil Industries, which held a significant stake in Samsung BioLogics, a pharmaceuticals maker. That internal merger, Elliott claimed, put Lee family interests over those of investors. Samsung Electronics, the combine's core company, denies this.

The same group company, BioLogics is at the heart of prosecutor Yoon's probe. Earlier this month he hauled in for questioning the president of Samsung Electronics, Chung Hyun-ho. That brought the investigation very close to the top of Samsung as Chung is a close aide to vice chairman Lee.

The 17-hour interview, which follows the arrest of several other Samsung executives, relates to alleged accounting fraud at Samsung BioLogics. Samsung Electronics, which declined to comment for this article, has previously denied all allegations.

The two legal cases are separate but together they highlight how the chaebols, which once powered Korea's economic miracle, are now making the economy dangerously top-heavy and lacking in transparency.

The problem was already apparent in the 1997 Asian crisis, when the economy collapsed with bewildering speed and there were few young companies to emerge from the rubble.

Since then, a succession of presidents promised to reduce chaebol dominance. Mostly, though, they failed to deliver and left the conglomerates in the economic driver's seat.

Moon, who won power in May 2017 campaigned on promises to "democratize" growth and give "trickle-up economics" a try.

While Moon made a slow start on economic reform, the Samsung probe suggests the rubber is finally hitting the proverbial road. Prosecutor Yoon is apparently acting with Moon's personal backing -- on June 17 the president promoted him to prosecutor general -- a signal Korea Inc. could be in for a rough couple of years.

All this could hardly come at a worse moment for Samsung's Lee, 50. Aside from the group's legal troubles, recent months have seen embarrassing delays with the rollout of a foldable Galaxy phone.

On top of this, U.S. President Donald Trump's trade war with China has upended the supply chains on which Korean exporters rely.

If the world economy slides, Korea will once more face the awkward fact that it is sandwiched uneasily between high-tech developed nations and low-cost China.

Meanwhile, the Lee family has to consider an estate tax bill of as much as $7 billion that will fall due on the death of Lee's 77-year-old sick father, Lee Kun-hee, incapacitated since a 2014 heart attack. Seoul is rife with speculation about how the family can pay without diluting its stake in Korea's biggest conglomerate.

Singer and Moon's team are not cooperating in squeezing Samsung. In fact, reporting in the Financial Times and elsewhere detail Elliott Management's claims that Moon's administration has sought to limit what information is made public, potentially hurting the investor's case.

Moon must act fairly. He should not be blinded by Korea Inc's influence but allow the courts to reach an independent verdict on the Elliott case and on the younger Lee's appeal against conviction. As for BioLogics, he should permit Yoon to follow the facts wherever they lead.

Admittedly, hedge funds are not altruists and Elliott Management was in Korea to make money. But sometimes such investors spotlight valid deficiencies in a corporate system, such as the excessive influence of a founding family.

The implications go beyond even Samsung to the whole economy. With Korea dominated by chaebol clans looking out for themselves, the 51 million people are left to deal with the fallout. By sucking up a critical mass of the available economic oxygen, chaebols cost Korea a vibrant startup scene that could create good-paying jobs and wealth.

Korea Inc.'s top-heaviness leaves the economy uniquely vulnerable as the trade war slams China, its main customer. That has Moon's team ginning up short-term stimulus to keep growth above 2% this year after a 0.4% contraction in the January-March quarter.

Yet longer-term economic changes are even more important. Moon should accelerate the antitrust enforcement measures he has wisely started. He needs to roll out tax incentives to empower young Koreans to disrupt the economy and encourage greater risk-taking. He can impose fines on chaebols hoarding cash that could be better used fattening paychecks. He should level the playing field for women and work harder to attract foreign talent.

After a slow start, there are encouraging signs that the chaebol shake-up Moon promised in 2017 is finally getting underway. There is much to be done in his last three years in office.

William Pesek is an award-winning Tokyo-based journalist and author of "Japanization: What the World Can Learn from Japan's Lost Decades." He was given the 2018 prize for excellence in opinion writing by the Society of Publishers in Asia for his Nikkei Asian Review work.

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