The Environment and Climate Change Law Review: South Korea
Of particular note in 2020 is the 'new deal' released by the government of the Republic of Korea, which suggests that the nation's coronavirus recovery package will have a digital-green focus, emphasising investment to promote the 'green economy'. The government's plans were re-emphasised when President Moon Jae-in announced a net-zero target, a commitment to 'go toward carbon-neutral by 2050' in a speech to the National Assembly in December 2020. The government also announced the Phase 3 National Allowance Allocation Plan in September 2020, and the Third Master Plan for the Emissions Trading Scheme in December 2019. The announced plans will reduce the amount of free allocation of emissions allowances, while introducing third-party market makers to stabilise the market for emissions trading. These plans are expected to further strengthen the Korea Emissions Trading Scheme (KETS) and solidify the government's efforts to reduce greenhouse gas emissions.
Korea's efforts to create a better environment are not limited to climate-related matters, as various laws and regulations are constantly introduced and amended to protect and improve the environment.
Article 35 of the Constitution of Korea provides the environmental rights of citizens and the obligations of the state as well as the basis for the Framework Act on Environmental Policy. The Framework Act on Environmental Policy sets forth the purpose of environmental policy and the basic principles in environmental law, and serves as the cornerstone of Korean environmental law. In addition, other specialised environmental statutes have been enacted and implemented to deal with other specific environmental matters.
Korea's overall environmental law and related regulations are as follows:
- the Framework Act on Environmental Policy;
- the Environmental Impact Assessment Act;
- the Act on the Integrated Control of Pollutant-Discharging Facilities;
- the Act on the Control and Aggravated Punishment of Environmental Offences, etc.;
- the Environment Dispute Mediation Act, Act on Liability for Environmental Damage and Relief Thereof;
- the Sustainable Development Act; and
- the Framework Act on Low Carbon, Green Growth.
Article 6 of the Constitution of the Republic of Korea provides that the treaties duly concluded and promulgated under the constitution shall have the same effect as the domestic laws of Korea. As such, Korea carries out its obligations under international agreements through the enactment of domestic laws, regulations and policies.
Some representative international environmental agreements to which Korea is party are:
- the United Nations Convention on the Law of the Sea;
- the International Convention for the Prevention of Pollution of the Sea by Oil;
- the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal;
- the Convention on International Trade in Endangered Species of Wild Fauna and Flora; and
- the Convention on Biological Diversity.
Korea is a contracting state to the following international agreements or regulations on climate matters:
- the United Nations Framework Convention on Climate Change (UNFCCC);
- the Kyoto Protocol to the United Nations Framework Convention on Climate Change;
- the Vienna Convention for the Protection of the Ozone Layer;
- the Montreal Protocol on Substances that Deplete the Ozone Layer;
- the London Amendment to the Montreal Protocol;
- the Copenhagen Amendment to the Montreal Protocol;
- the Montreal Amendment to the Montreal Protocol;
- the Beijing Amendment to the Montreal Protocol;
- the Marrakesh Accords; and
- the Paris Agreement.
The Ministry of Environment (MOE) is the leading authority responsible for the administration and enforcement of Korea's environmental policy. However, in addition to the MOE, many environmental matters are scattered into laws and regulations enforced by other ministries, which sometimes results in duplicative regulations and lack of clarity regarding jurisdiction. For example, the MOE is responsible for water management and regulation, while the Ministry of Land, Infrastructure and Transport regulates water supply and dam construction. However, efforts are being made in Korea to integrate the management and regulation of water under the unified control of the MOE.
The competent authorities (including the MOE) are responsible for the enforcement of environmental laws and have the authority to impose sanctions, such as suspension of work, licence revocation, administrative fines, and the granting of permits or subsidies as prescribed in the individual laws.
Although variations exist depending on the applicable laws and regulations, the MOE, its affiliates and local governments may either routinely conduct inspections of regulated facilities or irregularly conduct investigations in the case of an incident. The powers of the regulatory authorities include the right to access land and buildings, to remove hazardous materials, to take samples of suspicious substances, or to request a specific performance by the owner or operator to prevent further damage.
The regulators decide on the extent of sanctions for each violation with reference to detailed disposition standards prescribed under relevant regulations. Possible sanctions include requiring the installation of pollution prevention equipment, the cessation of the infringing activity, suspension of work, the shutdown of a facility, revocation of the permit and the imposition of administrative fines. Injunctive reliefs may also be pursued to require the abatement of the violation or environmental harm. In addition to substantive violations of the various environmental laws and regulations, the regulators may also exercise their enforcement powers for any process violations such as deceiving or misleading regulators or obstruction of investigations.
Such administrative sanctions can be challenged through administrative litigation. The judicial authority in Korea is exercised by courts on three levels: District Court (or Administrative Court), High Court and the Supreme Court. If an interested party wishes to contest an administrative disposition by a competent authority (such as the MOE), it could file an administrative litigation before the Administrative Court. The judgment made in the Administrative Court can be appealed to a High Court, which can then be appealed to the Supreme Court. However, the Supreme Court may decline to review the appeal if certain conditions are not satisfied. In such litigation, depending on the type and nature of the challenged disposition, the abuse of discretionary power, including disproportionality, infringement of the principle on trust protection and unconstitutionality of the statutory basis for the disposition, may additionally be asserted.
Environmental laws and regulations authorise or otherwise provide statutory grounds for a wide range of civil liabilities and criminal penalties.
The Act on Liability for Environmental Damage and Relief Thereof, enacted in 2014, defines the term 'environmental damage' as damage (including a series of damages with the same cause) inflicted on the life, body (including mental harm) or property of any third person by air pollution, water pollution, soil pollution, marine pollution, noise, vibration or other causes that occur from installing and operating a facility, except the damage inflicted on a business owner and the damage suffered by employees during the course of business.
Prior to the enactment of the Act on Liability for Environmental Damage and Relief Thereof, relief from environmental pollution was mainly covered by civil litigation, which was both time-consuming and expensive, as a demonstration of the defendant's intention or negligence, causation, illegality, harm done to the plaintiff, etc., was required for monetary awards. To provide prompt and adequate relief to the victims, this Act introduced strict liability, an obligation for business owners to have environmental liability insurance, presumption of causal relationship, the right to request information and payment of relief money to the victims of environmental damage. However, the Act also stipulated a liability cap for compensation, as it may impose too much of a burden on business owners with strict liability, etc., with exceptions for the presumption of a causal relationship.
Other than relief provided under the Act on Liability for Environmental Damage and Relief Thereof, relief from environmental pollution among private parties is mainly based on civil claims under the Civil Act, including but not limited to:
- the owner's or possessor's demands for cessation of the disturbances and compensation of damages;
- claims for compensation of damages based on torts;
- the seller's liability for warranty against defects existing in the subject-matter of the sale; and
- product liability and non-performance of contractual obligations are among the potential civil claims under the Korean Civil Code.
In addition, certain material violations of environmental laws and regulations may be subject to criminal liabilities. If the violation is perpetrated by a corporate entity rather than an individual, then the corporate entity's directors or officers may be subject to criminal liabilities. Most individual environmental regulations have joint penalty provisions, which typically take the following form:
If a representative of a corporation, or an agent, employee, or any other servant of a corporation or an individual commits an offence described in the Act in connection with the duties of such corporation or individual, not only shall the offender be punished accordingly, but such corporation or individual also shall be punished by the fine provided in the relevant Article: provided that this shall not apply where the corporation or individual has not been negligent in giving due attention and supervision concerning the relevant duties to prevent such offence.2
These joint penalty provisions provide the legal basis for the criminal prosecution of directors and officers for their management supervision negligence.
The typical defences asserted include lack of intent (in the case of criminal liability) and the failure to establish the necessary elements for civil or criminal liability. For civil claims, the burden of proof and statutes of limitation are among some of the essential issues commonly asserted by the defendants in environmental cases.
Reporting and disclosure
Under environmental laws and regulations, most of the pollutant discharging facilities must submit periodic reports to the relevant competent authorities. For example, the Water Environment Conservation Act provides that anyone who transports or stores petroleum, toxic substances, pesticides or other designated water pollutants must report to the regulators if such substances pollute water. The Soil Environment Conservation Act provides that anyone who produces, transports, stores, handles, treats or processes soil pollutants must report to the regulators if soil pollutants were leaked or drained during the process. Also, anyone who owns, occupies or operates soil-contaminating facilities must report to the relevant regulators if any soil contamination is found in the facilities.
Compliance with environmental regulations may have a substantial impact on the valuation of a business to be transferred in an M&A transaction. In most cases, buyers carry out extensive legal due diligence. Prior to acquiring a business that operates installations that require environmental permits, the buyer must check the existence, validity and duration of all required permits for every installation. The buyer must also be aware of all regulations applicable to the activities that are proposed to be carried out. Furthermore, non-compliance committed by the previous owner may give rise to potential risks for the buyer. Typical items on the checklist for the buyer include the previous non-compliance by the seller of the seller's obligations under relevant environmental regulations and modifications or deviations that contravene the conditions imposed on the seller under the original permit. The target company's emergency plans, security information and health and safety management regulations must also be thoroughly reviewed.
Most environmental permits are tied to a specific place of business and the possession and operation of such a place, making it less significant to distinguish a share deal from an asset deal from an environmental regulatory perspective. Although the change of control notification may be required, this is often not much more than a formality. However, participants in an M&A transaction must keep in mind that such transactions do not relieve the parties from their environmental liabilities. In cases such as soil contamination, liabilities may be enforced against the persons who contaminated, against the owner, and against the current possessor. The violation of laws related to environmental matters such as water quality, air conservation and soil contamination is treated as a serious legal risk in M&A, as it may lead to the suspension of operations or the revocation of business permits.
For real-estate transactions of (former) places of businesses, the existence of contaminants and the liability for their removal are the main environmental aspects to consider. According to the Soil Environment Conservation Act, the buyer of land becomes jointly liable with the previous owner and the polluter.
Violations of environmental laws may jeopardise continuation of business activities as they may result in the suspension of business or cancellation of business permits. In addition, liability for damages caused by environmental pollution may remain as a contingent liability. Consequently, in some cases, environmental aspects are treated as serious legal obstacles for financing, corporate listing or invitation of investments.
Also, listed corporations should disclose the amount of penalties and fines imposed on the company if the amount is more than 5 per cent of its equity capital. Large listed corporations having assets not less than 2 trillion won are subject to such disclosure if the quantum of imposed penalties and fines is more than 2.5 per cent of its equity capital. In those cases, such disclosure obligations may extend to the relevant environmental issues.
In relation to climatic change, the emission trading scheme under the Act on the Allocation and Trading of Greenhouse-gas Emission Permits provides mandatory requirements applicable to the business entities eligible for allocation. Such business entities have to submit annual reports on the amount of greenhouse gas emissions, as well as emission permits to the relevant competent authorities. The mandatory reporting mentioned above is not yet aligned with the Task Force on Climate-related Financial Disclosures recommendations.
The Protection of Public Interests Reporters Act provides legal basis for the protection provided for whistleblowers. Any whistleblower who discloses acts detrimental to the public interest (e.g., acts detrimental to the health and safety of people, the environment, the interests of consumers or fair competition) shall be protected by the Anti-Corruption and Civil Rights Commission. The protection provided by the Anti-Corruption and Civil Rights Commission includes confidentiality, exemption from responsibility, prohibition of disadvantageous measures, preferential treatment and other relevant measures.
Korea has enacted and implemented multiple specialised environmental statutes to deal specifically with individual sources of pollutants. However, in 2017, the Act on the Integrated Control of Pollutant-Discharging Facilities was promulgated and introduced a new legal regime, the integrated environmental management system (IEMS), which is applicable to large-scale business sites having great impact on the environment.
The IEMS integrated previous regulations into a single integrated management permit per business unit, thereby simplifying the process. Before the IEMS was introduced, businesses had been regulated by seven different environmental regulations requiring them to obtain up to 10 different types of permits for each source of pollutants. The IEMS permits, once issued, are valid for five years and can be extended for up to three additional years. If the discharging facilities are transferred, the transferee shall succeed the rights and obligations of the preceding transferor's permits, revised permits or file of reporting.
In the event a business site falls outside of the scope of the IEMS, then a separate regulatory regime is applicable, depending on the type of pollutant.
i Air quality
Air emissions are regulated by the Clean Air Conservation Act. This adopts different sets of regulations for the emissions by categorising the sources of air pollutants into places of business, living environments and motor vehicles or ships. Korea's regulation of air emissions is mainly focused on regulating places of business. Any person who intends to install emission facilities shall obtain a permit from the relevant mayor or governor or file a report thereon and install air pollution prevention facilities in accordance with the 'polluter pays' principle. A prevention facility should also be installed and an operation commencement report submitted to the MOE before the facility starts operating.
The Act sets permissible emission levels of air pollutants emitted from air pollutant-emitting facilities, thereby adopting a concentration-based regulation instead of an overall quantity-based regulation. On the other hand, certain areas designated as air pollution control areas are subject to overall quantity-based regulation under the Special Act on the Improvement of Air Quality in Air Pollution Control Areas.
If a facility emits air pollutants excessively, the competent authority can order a reduction of the facility's emissions to a permissible level. If the facility fails to comply, the competent authority can suspend the operation of the facility in whole or in part.
ii Water quality
The main legislation addressing the protection of fresh water is the Water Environment Conservation Act, which is the framework act for the prevention of water pollution. The act categorises water quality pollutants by methods of emissions and their location into point source, non-point source and miscellaneous sources. Under the Water Environment Conservation Act, the point source pollutants are subject to similar regulations imposed on places of business under the Clean Air Conservation Act.
Anyone intending to install a wastewater-emitting facility must obtain a permit from or file a report with the MOE. Once the MOE receives the application, the MOE can consult the local authority and restrict the installation of the facility if the MOE determines the facility's proximity to any reservoir protection zone or special protection zone to be harmful. The operator of the facility must also install a prevention facility to ensure that the amount of pollutants discharged does not exceed the permissible thresholds. An operation commencement report must be filed with the MOE before the operation of the facility.
Unless there is a justifiable reason, the Water Environment Conservation Act prohibits the following:
- dumping livestock excreta, farm wastewater, carcasses, wastes or dirty soil in public water;
- washing a car in a local stream or lake;
- spilling or dumping a significant amount of soil in the reservoir, local stream or lake; and
- excessive discharging of water pollutants.
Under the Water Environment Conservation Act, the MOE can order a facility to lower the amount of water pollutants discharged within a designated period if the facility is determined to be discharging water pollutants in excess. The facility must promptly report to the MOE once it completes the order. If the facility fails to comply, the MOE can suspend the facility's operation in whole or in part.
The MOE can also order a facility to stop discharging pollutants or other special measures if it determines that water quality will not satisfy the existing standards due to reservoir pollution, and may seriously harm public health.
Hazardous products and substances are mainly regulated by the following laws and regulations:
- the Act on Registration, Evaluation, etc. of Chemicals (K-REACH);
- the Chemicals Control Act; and
- the Act on Safety Management of Consumer Chemical Products and Biocides (K-BPR).
K-REACH, the Chemicals Control Act, K-BPR and respective regulations thereunder protect human health and the environment against risks caused by hazardous products and substances.
K-REACH is similar to the EU REACH as it is a statute that regulates the market entry of a chemical substance. Under K-REACH, any person who manufactures or imports no less than 100 kilograms of non-phase-in substance or any person who manufactures or imports no less than 1 tonne of phase-in substance must register the uses, quantity, etc., of the chemical substance in advance to the Minister of Environment. Non-compliance with the registering requirement could be subject to criminal penalties and a suspension order for the manufacture, import, use or sale of the chemical substances.
On the other hand, the Chemicals Control Act regulates the usage of such chemical substances once they have been introduced to the domestic market. Specifically, the manufacture, keeping, storage, transport and use of chemical substances (collectively, handling) require a business permit and handling facility in accordance with the specifications set forth in the Chemicals Control Act.
Lastly, K-BPR was promulgated in 2018 and came into effect in 2019. This Act, which is substantially similar to the EU Biocidal Products Regulation, imposes safety and labelling standards for certain consumer chemical products and requires manufacturers and importers of biocidal products to obtain prior approval for the biocides from the MOE.
iv Solid and hazardous waste
Under the Waste Control Act, the term 'waste' is defined as 'materials such as garbage, burnt refuse, sludge, waste oil, waste acid, waste alkali and carcasses of animals, which have become no longer useful for human life or business activities'. The Act categorises waste into two main categories and provides a differentiated management system for each category: industrial waste and household waste.
Industrial waste is further categorised into designated waste, construction waste and ordinary industrial waste. Among the types of industrial waste, designated waste, which is either harmful substances such as waste oil and waste acid that may contaminate the surrounding environment or medical waste that may cause harm to humans, is more strictly regulated than ordinary industrial waste.
Any business operator that discharges (i.e., generates) industrial waste must report the type and amount of the waste it discharges to the relevant local authority. The operator discharging the waste must treat the waste directly or have it treated by someone with a licence to manage a waste treatment business or operate a waste treatment facility. It is illegal to conduct waste treatment business without the requisite permit from the MOE or the relevant local authority. It is also illegal to dispose of waste in an area that is not prepared for waste collection by the local authority and to fill or incinerate waste in a waste treatment facility not licensed or registered. Such unlawful dumping of industrial wastes is subject to criminal penalties. Local authorities are in charge of household waste, and unlawful dumping of household waste is subject to administrative fines.
The government may require financial assurances from a business operator who has installed a waste landfill facility by requiring the operator to deposit the necessary expenses for follow-up management, etc., in the Environment Reconstruction Special Account as provided in the Framework Act on Environmental Policy.
One unique feature of Korea's Waste Control Act in relation to household waste is a pay-as-you-throw system, commonly known as Waste Jong-Ryang-Je. This is a government policy based on the 'polluter pays' principle, whereby the dischargers of household waste are subject to the collection of service charges for the treatment of household waste depending on the kind, quantity, etc., of the household waste discharged. The service charges are collected by selling standard waste bags and waste labels.
The Framework Act on Resource Circulation, enacted in 2018, regulates recycling of waste. The Act introduced the new concept of 'resource circulation' and provides general principles to promote recycling. The Construction Waste Recycling Promotion Act and the Act on Resource Circulation of Electrical and Electronic Equipment and Vehicles regulate the recycling of certain special types of waste.
v Contaminated land
The Soil Environment Conservation Act regulates matters relating to soil pollution in Korea and prohibits the following:
- disposal of soil pollutants or reclamation using soil pollutants;
- leakage of soil pollutants during storage, transportation or purification;
- installation of an unreported facility (installation of a soil-contaminating facility requires the installation of a soil-contamination prevention facility as well as its maintenance) that could severely contaminate soil;
- failure to report leakage of soil pollutants to the competent authority during manufacture, transportation, storage or treatment; and
- failure to report contamination of an installed soil pollution management facility.
Regarding soil contamination, this Act imposes two types of liabilities: payment of damages or purification obligations. While the former is a type of strict liability borne by the persons responsible for the soil contamination, the latter is a liability borne by the following persons designated by the law:
- any person who causes soil contamination by discharging, leaking, dumping or neglecting soil contaminants or committing other acts;
- the proprietor, occupant or operator of a facility subject to the control of soil contamination constituting a cause for soil contamination at the time soil contamination occurs;
- any person who has comprehensively succeeded to the rights and liabilities of either (a) or (b) on account of merger, inheritance or other reasons; and
- any person who previously owned or presently owns or occupies land on which soil contamination has occurred.
Clean-up of soil contamination first starts with the detection of contaminated soil through a soil contamination inspection. If the inspection reveals that the soil contamination of the area exceeds the Worrisome Standards, then measures such as the installation of a pollution prevention facility, improvement of an existing pollution prevention facility or restrictions imposed on the use of soil pollutants shall be implemented. If the soil pollution is severe and exceeds the Countermeasure Standards, then the person designated by the law shall be ordered to implement a project to purify or improve the soil contamination, or the competent authority may execute such a project at the expense of the person designated by the law. Under the Soil Environment Conservation Act, the Countermeasure Standards are defined as the levels of soil contamination that are likely to obstruct human health and properties or rearing of animals and plants, and accordingly would necessitate countermeasures. The Worrisome Standards are about 40 per cent less severe than the Countermeasure Standards.
In an asset sale, the buyer generally inherits pre-acquisition environmental liability, unless:
- the purchased asset meets certain exceptions under applicable laws and regulations (for example, if the buyer was unaware of the soil contamination and was not negligent in preventing soil contamination when he or she acquired the land; or
- other contractual arrangements in regard to the asset sale and purchase agreement exist. In a share sale, the target company shall be responsible for the pre-acquisition environmental liability.
Korea is an active participant in the international community's collective efforts against climate change, having joined the UNFCCC in 1993, ratified the Kyoto Protocol in 2002 and ratified the Paris Agreement on 3 November 2016. In 2015, the government submitted its Intended Nationally Determined Contribution (INDC). The INDC was a proposal to designate an economy-wide target to reduce greenhouse gas emissions by 37 per cent below its business-as-usual emissions level by 2030. In 2020, the government announced its commitment to achieve net-zero emmissions and be carbon-neutral by 2050.
A key legal basis for Korea's domestic implementation of the INDC is the Framework Act on Low Carbon, Green Growth, which was enacted in 2011. The Framework Act on Low Carbon, Green Growth provides that the government formulate and implement a Green Growth Five-year Plan and National Climate Change Adaptation Plan every five years as national mid- to long-term plans in response to climate change. After the Framework Act on Low Carbon, Green Growth was enacted, the government announced the National Greenhouse Gas Emissions Reduction Roadmap in 2014 (revised in June 2018), the First Basic Plan for Climate Change Response in 2016 and the Second Basic Plan for Climate Change Response in 2019.
Based on these plans, the government has implemented various policy measures in response to climate change. The two most notable schemes are the Renewable Portfolio Standard (RPS) scheme under the Act on the Promotion of the Development, Use and Diffusion of New and Renewable Energy in 2012, and a greenhouse gas emissions allocation system and national cap-and-trade system commonly known as the KETS under the Act on the Allocation of and Trading of Greenhouse-Gas Emission Permits in 2015.
The RPS Scheme
In 2012, the government replaced the previous feed-in-tariffs regime and implemented the RPS in accordance with the Act on the Promotion of the Development, Use and Diffusion of New and Renewable Energy. The RPS relies on renewable energy certificates (REC), which are certificates authenticating the fact of supply by using renewable energy facilities, based on each megawatt-hour of electricity generated from a renewable energy resource. RECs can be traded once issued.
The government has obliged companies with a generation capacity of 500MW or more to generate a certain minimum percentage of gross power from renewable energy sources. Currently, 22 large power companies in Korea are subject to this obligation. Failure to meet the required generation quota may result in administrative fines of 1.5 times the average trading price of a REC. As of December 2020, the average trading price of REC is approximately 30,000 won.
The Korea Emissions Trading Scheme
In 2015, Korea established a national greenhouse gas emissions trading scheme, commonly known as the KETS. In 2020, emissions rights were allocated to 685 companies and public entities whose total annual emissions were not less than 125,000 tCO2, or to places of businesses with annual emissions not less than 25,000 tCO2. If greenhouse gas emissions of a company or public entity exceeded the allocated emissions, then the company or public entity either had to pay administrative fines, purchase emissions rights from the emissions trading market or offset excessive emissions with offset credits.
Currently, the United Nation's Clean Development Mechanism (CDM) projects implemented abroad may be certified by the government as external projects. Once certified, the Certified Emission Reductions from such CDM projects can be converted into Korean emission credits that can either be used to offset the greenhouse gas emissions or be traded in the emissions market under KETS.
Korea does not participate in an international greenhouse gas emissions trading scheme. Although there have been discussions to link the KETS with other markets, no such link has yet been established.
Outlook and conclusions
In 2021, the government is expected to specify the details relating to the announced net-zero target, which will be in accordance with the government's long-term Low Emission Development Strategy (LEDS) that was submitted to the United Nations in December 2020.
Also, KETS is expected to increase its role in greenhouse gas reductions going forward. Although there remains a certain level of uncertainty owing to the anticipated transition from CDM under the Kyoto Protocol to the Sustainable Development Mechanism under the Paris Agreement, the recent announcement of the Phase 3 National Allowance Allocation Plan and the Third Master Plan for the KETS has reaffirmed the government's intentions to further strengthen the KETS to achieve its net-zero objective. Following successful completion of Phase 1 and 2, and entering Phase 3 in 2021, the KETS is well positioned to assist Korea's endeavours to reduce greenhouse gas emissions and achieve its net-zero objective.
1 Tong Keun Seol is a partner, and Sangmin Kim and Jay Junyong Lee are associates at Lee & Ko.
2 Article 31 of the Soil Environment Conservation Act, Article 81 of the Water Environment Conservation Act, Article 95 of the Clean Air Conservation Act and other environment-related statutes also have similar provisions.