All
| TITLE | Supreme Court Decision 2016Da18753 Decided November 29, 2018【Decision on Enforcement】 [full Text] |
|---|---|
| Summary | |
|
[1] In a case where grounds for a demurrer arose upon the recognition of a foreign arbitral award, whether the enforcement of the same may be denied in a trial by deeming that it goes against the public order under Article V(2)(b) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (affirmative) [2] Meaning of “believing the granting of representation right based on one’s expression of intent and act” pursuant to Article 3:61(2) of the Dutch Civil Code Whether a counterparty is warranted protection in cases where the existence of representation right in appearance was created by oneself or arose from a situation within the scope that is to be endured by oneself (affirmative) If there is doubt as to the existence of representation right given that it unclear whether a person undertaking a representative act has such right, whether a counterparty has the duty to investigate the representation right (affirmative) If the external situation that one created is obvious to the extent that it is reasonable to believe the existence of representation right, whether a counterparty has the duty to investigate the representation right (negative) [3] Legislative purport of Article V(2)(b) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Method of determining cases where the recognition or enforcement of an arbitral award goes against the relevant country’s public order [4] In a case where: (a) Company A concluded with Foreign Company B a license agreement on Company B’s patent, etc.; (b) on grounds that Company A violated the foregoing license agreement when applying for a patent, Company B filed for arbitration against Company A seeking the restitution of all rights and interests pertaining to the applied patent; and (c) an arbitral award was rendered ordering Company A to transfer to Company B the entire rights and interests related to the patent, and, upon nonperformance of the same, ordering Company A’s indirect compulsory performance of compensatory payment, the Court affirming the judgment of the lower court deeming that the portion of the arbitral award ordering indirect compulsory performance does not go against public order and good morals to the extent of denying enforcement [5] Meaning of arbitrability, which is the subject of dispute under Article V(2)(a) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Whether arbitrability of a dispute itself may be denied solely on the basis that a specific means of relief regarding the dispute at issue falls under the exclusive territorial jurisdiction of a court of the enforcing country (negative) |
|
