As to the case number 16061/CYK between the Plaintiff and the Defendant, Nonparty 1 [name 1 omitted), CBE, QC, and SBS], Nonparty 3 (English name 2 omitted), and Nonparty 2 ( QC) [Defendant 3 omitted] determined on April 18, 2011, the Defendant paid USD 32,601,248 to the Plaintiff, and paid attorney fees and arbitral award fees borne by the Plaintiff, USD 1,097, USD 47.76 and USD 2,152,446,230 to the Plaintiff.”

2. The plaintiff's remaining appeal and the conjunctive claim added by this court are all dismissed.

3. 30% of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant.

4. The second sentence under paragraph (1) may be provisionally executed.

The judgment of the court below and the defendant, like Paragraph (1) of this Article, shall pay to the plaintiff 6% interest per annum from April 28, 2011 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment. Preliminaryly, with regard to the amount stated in Paragraph (1) of this case, 7% interest per annum from April 28, 201 to the day of complete payment (the plaintiff added the conjunctive claim as to the damages for delay to this court).

2. Purport of appeal

Of the judgment of the court of first instance, the part concerning the principal lawsuit shall be revoked (the defendant claimed a counterclaim in the first instance court, but then withdrawn it before the court which received the dismissal judgment). The judgment and the defendant shall pay to the plaintiff 6% per annum from April 28, 2011 to the service date of the duplicate of the complaint of this case and 20% per annum from the next day to the day of complete payment.

(a) Status of parties;

1) On December 27, 1999, the Defendant was established as investment by 100% of the Deposit Protection Corporation for the acquisition and disposal of non-performing assets of financial institutions. At the time, it was mutually changed as of November 2009. The Defendant intended to have an insolvent financial institution manage and dispose of non-performing loans acquired by investing public funds to the financial institution and to make the assets-backed specialized company to be established jointly with the purchaser of the non-performing loans so as to make the results of recovery to the maximum extent possible. The Defendant selected LSF 3 Copis ELD (LF 3 Porflido, Ltd., hereinafter “○○ Fund 3”) as joint investors.

2) Defendant and ○○○○ Fund 3 jointly established the Plaintiff, a corporation specialized in asset-backed securitization, as a corporation, on or before December 2000. This is a structure in which the Plaintiff and ○○ Fund 3 acquired 50% shares of an amount equivalent to KRW 30.8 billion issued by the Plaintiff, and bonds equivalent to KRW 184.1 billion, in which the Defendant and ○○○ Fund 3 acquired 50% each other. The Defendant sold 40.13 billion non-performing loans of KRW 413.1 billion on the nominal name to the Plaintiff at KRW 215 billion (including sales price at KRW 204.4 billion). However, the Defendant’s sales price at KRW 107.5 billion out of the proceeds is appropriated as the successful bid price paid by ○○○ Fund 3,000,000 won, and the remainder non-performing assets are recovered in the form of principal and interest on bonds and dividends, etc. collected by the Plaintiff.

3) According to an asset-backed securitization plan that the Plaintiff applied for registration with the Financial Services Commission on October 25, 2000, the Plaintiff may collect claims through the method of acquiring and developing them through court auction, etc. and disposing of them to a third party, in order to raise funds for purchase of non-performing assets, such as the issuance of stocks and bonds, dividends, the principal and interest of bonds through the management and disposal of purchased non-performing assets, and where real estate provided as security for non-performing assets exists.

4) On December 19, 200, the Plaintiff issued asset-backed securities equivalent to 86% of the purchase price of the said non-performing loan. Of these, the amount equivalent to 6/7 of the purchase price was issued in the form of bonds. The Plaintiff and the Defendant accepted 50% of the bond-backed securities.

5) Hedson Korea Ltd. (hereinafter “Hudson”) is an asset management company that is entrusted by the Plaintiff with the management of the securitization assets pursuant to the Asset-Backed Securitization Act.

B. Conclusion of bond contracts and contracts between shareholders;

1) On December 19, 200, the Plaintiff entered into a corporate bond contract with the Defendant and ○○ Fund 3, and the Plaintiff’s issuance of bonds and redemption of the principal and interest of bonds, etc.

2) On the same day, the Plaintiff entered into a contract with the Defendant and ○○○ Fund 3 (hereinafter “instant arbitration clause”) with the content as set forth below, and entered into an agreement between the shareholders under Article 10 (b) (hereinafter “instant agreement”). The Plaintiff signed the instant arbitration clause at the end of the said agreement with the Defendant, ○○ Fund 3, and the Plaintiff.

This Agreement shall be concluded between Defendant 1, ○○○○ Fund (hereinafter referred to as “the Parties”), a company of the Republic of Korea, the Plaintiff, and ○○○○○○○ Company, which is exempt from obligations, and after the conclusion of the Agreement. The shareholders of Article 5 shall, within the last three calendar months and at least three calendar months, distribute dividends equivalent to the actual profits arising from the reorganization and disposition of the instant loans, taking into account the terms and conditions of common shares and governing laws, and the actual operating expenses of the Plaintiff, which are commercially reasonable and prudented in accordance with the circumstances. The applicable law of Article 10; Dispute Resolution; (a) The rights and obligations of shareholders pursuant to this Agreement and this Agreement shall be governed by the law of jurisdiction over the establishment of the Plaintiff and shall be interpreted accordingly. The agents of the Defendant shall be entitled to reasonably in accordance with the terms and conditions of this Agreement and any other terms and conditions of this Agreement shall be subject to the agreement of the Parties (hereinafter referred to as “○○ Fund”) to resolve any disputes arising out of or under this Agreement.

(c) Acquisition and sale of land for Busan cargo terminal;

1) The Plaintiff acquired the Busan Cargo Terminal site ( Address 1 omitted), which is a collateral for collateral against the Busan General Cargo Terminal Co., Ltd., a non-performing asset, and entrusted the management and sale of the instant site to the Chang Investment Company, a newly incorporated company from Hudson, with the management and sale of the instant site, in order to make profits by changing the specific use area from the existing quasi-industrial area to a residential area (hereinafter “instant site”) and disposing of it from the existing quasi-industrial area (the part of the site was acquired through a successful bid at a voluntary auction around December 2002, and the remainder was acquired through sale around December 2003).

2) On March 29, 2004, the Plaintiff: (a) sold the instant site at KRW 135 billion to the Maritime Consulting Group (hereinafter “Piracy”); (b) on March 29, 2004, the Plaintiff decided to complete the alteration of the use of the instant site at KRW 65 million; and (c) on September 29, 2004, the Plaintiff separately lent KRW 11 billion to the Busan Integrated Cargo Terminal Co., Ltd. for the cost of relocating the existing terminal facilities located on the instant site on the creative date.

3) When the alteration of the use of the instant site continues to be delayed prior to the alteration of the use, the Plaintiff concluded a real estate sale agreement with the piracy on November 30, 2004, on the grounds that the alteration of the use was made after receiving the purchase price for a part of the purchase price, and then the alteration of the use was made after receiving the purchase price, and if the alteration of the use was made before May 30, 2005, it is finally determined that the alteration of use should not be completed and that the alteration of use would not be completed until May 30, 2005, or that the alteration was not completed for more than 90 days from the above time limit, the piracy may request the Plaintiff to cancel the sale contract or repurchase the contract, and the piracy lent the 11 billion won interest and 7.4 billion interest with the cost of moving the terminal facilities to the Chang Chang, and the Chang, which was again lent to the Busan Integrated Cargo Terminal Co., Ltd., and completed the registration of ownership transfer in the future.

4) On December 1, 2004, in order to raise funds for the above purchase price, etc., Gannam Bank and Gannam Marine Insurance Co., Ltd. borrowed KRW 155 billion. The Plaintiff, at the time of the amendment contract on November 30, 2004, agreed to bear part of the financial costs incurred from the above loan.

(d) Preparation of a letter of undertaking, payment of the purchase price, etc.

1) On December 1, 2004, the Plaintiff: (a) notified the Defendant of the developments leading up to and details of the above modified contract, received the advance payment from piracy; and (b) could cause a situation in which the Defendant and ○○○○ Fund 3 would distribute the advance payment to the Defendant or would have to return the full amount of the advance payment due to repurchase because of the change of purpose of use; and (c) accordingly, (d) requested the Defendant to present a letter of undertaking to immediately refund the advance payment to the Plaintiff under paragraph (1) to the Defendant to pay the advance payment (hereinafter “the advance payment”) after the Defendant’s establishment of a pledge right and the change of purpose of use is completed; and (e) if the Plaintiff returned the purchase payment to the Defendant or would have a reason to pay the settlement payment to the Plaintiff immediately after the completion of the use; and (e) requested the Defendant to offer a letter of undertaking to pay the advance payment to the Plaintiff.

2) On December 8, 2004, the Defendant selected the proposal 2 to the Plaintiff, and sent the documents stating the following contents (hereinafter “instant commitment”) to the Plaintiff. The agreement pertaining thereto was signed.

3. On December 10, 2004, the Defendant is expected to receive KRW 50.2 billion or equivalent US dollars from the Plaintiff as the name of redemption of principal and interest of the Plaintiff’s Serwher 200 ($ 77,416,259.86, hereinafter “US”) owned by the Defendant and dividends of the Plaintiff’s 6,000 shares (Provided, That the amount to be received by the Defendant is prior to withholding of interest on bonds 200,000). 4. The amount to be received by the Defendant is to be returned to the Defendant within the extent of KRW 20,500,000,000,000, in full or in part, from the date of the Plaintiff’s request for the above sales contract to be returned to the buyer within the extent of KRW 20,500,000,000,000,000,000,000).

3) On December 10, 2004, the Plaintiff paid to the Defendant totaling KRW 50.2 billion for the instant advance payment, including KRW 21,404,651,510, and KRW 28,795,348,490, under the name of the principal and interest of the bonds, as dividend out of the purchase price.

(e) Failure of change of use and dispute between the plaintiff and the defendant;

1) When an application for approval to change the purpose of use of the instant site was rejected on December 28, 2004, the Plaintiff notified the Defendant on December 31, 2004 that the payment or redemption possibility would be made, and the Plaintiff, on the same day, reduced the purchase price to KRW 103 billion, and did not change the purpose of use by the extended time limit while extending the time limit for the completion of the change of use, to continue the development project of the instant site, the Plaintiff would bear the additional financial costs of piracy incurred until the change of use is completed.

2) On May 21, 2007, the Plaintiff anticipated that the ownership of the instant site offered as security for the obligation to lend the instant site would be difficult to maintain the sales contract as it is because the use of the instant site did not occur, the confirmation of the approval for the alteration of the purpose of use is difficult, and that the ownership of the instant site offered as security for the obligation to lend the instant site would be transferred to a third party, and thus, it would be difficult to maintain the sales contract as it is. Accordingly, the Defendant demanded the return of the instant advance payment pursuant to the instant undertaking. On May 30, 2007, the Defendant would return the instant advance payment to the court for the purpose of refund of the purchase price, and thus, the instant advance payment should be deposited with the court for the purpose of refund of the purchase price, and the procedure of cancelling the sales contract and the registration

3) The Plaintiff sought several measures regarding the disposal of the instant site, and decided to sell the instant site after acquiring the ownership of the instant site by acquiring it in the name of 12 billion won on a creative day, and decided to hold a board of directors on June 8, 2007 to obtain approval. The Plaintiff notified the Defendant of the holding of the board of directors on June 7, 2007. However, the Defendant notified the Plaintiff of the fact that it was impossible for the Plaintiff to submit detailed materials to the Plaintiff and the notification was delayed, making it difficult for the Plaintiff to participate physically, and that the Plaintiff’s two directors of the Defendant did not attend the board of directors. However, the Plaintiff’s three directors present at the meeting of the Plaintiff, which was held on June 8, 2007, agreed to obtain the acquisition of the confidential shares.

4) On June 20, 2007, in order to raise the purchase price of the above shares, the Plaintiff, on June 20, 2007, demanded the Changil to borrow USD 16.5 million from ○○ Fund 3,000,000, and ○○○ Fund 3, as the above loan claim, set off against the obligation to return dividends to the Plaintiff.

On June 22, 2007, the Plaintiff: (a) disposed of the instant land as the instant site and repaid the loans secured by the instant site; and (b) agreed to bear the Plaintiff’s shortage and the expenses incurred in the process of selling the instant land in the event that the sale price of the instant site falls short of the amount of loans secured by piracy; and (c) the Plaintiff paid the amount of loans secured by piracy.

5) On June 27, 2007, the Defendant requested the Plaintiff to explain the reasons why the acquisition of the instant site by acquiring shares of sea-scam to the Plaintiff, even though it did not have been scheduled in the initial sales contract, and requested the Plaintiff to suspend the sale of the instant site and provide the evidentiary materials and information by not later than the specific vindication. On October 22, 2007, the Plaintiff notified the Defendant of the process of the suspension of the sale of the instant site and the date of the repayment of the loan obligations of sea-scambling. Unless there is any other alternative, it is difficult to suspend the sale procedure, and sent relevant materials on October 25, 2007. However, the Defendant demanded the suspension of the progress of the said procedure.

6) On November 1, 2007, the New Day sold piracy shares at KRW 160 billion to the Nam River Development Co., Ltd. (hereinafter “Seoul River Development”), and decided to pay KRW 10 billion in cash for the remaining loan obligations of KRW 159 billion, out of KRW 181 billion. Of the remainder of the loan obligations of piracy, the remaining 22 billion out of the remainder of the loan obligations of piracy was repaid from ○○○ Fund 3, and the Plaintiff was liable to pay the remainder.

7) On November 6, 2007, the Plaintiff notified the Defendant of the sale of the shares held in order to demand the Defendant to present his opinion on the distribution and settlement of final losses, and on November 14, 2007, the Defendant did not provide specific explanation or data despite the unilateral progress by the Plaintiff, and the purchase of the shares held in order to be a transaction of a piracy structure, and the Defendant is a public fund recovery agency, and the Defendant demanded to immediately suspend the sale of the shares held in order to develop the Southern River.

8) On June 2, 2008, the Plaintiff demanded the Defendant to return USD 33,352,241.06 (on May 30, 2008, applying USD 1,031.40 (on May 30, 2008, applying KRW 34,399,501,425) equivalent to the exchange rate of KRW 1,031.40 (on May 30, 2008, applying the said KRW 34,399,501,425) equivalent to 50% of the expenses incurred in the process of purchase, repurchase, and resale of the instant land in accordance with the instant undertaking. However, the Defendant refused the Plaintiff’s request for return, and notified the Defendant of the same purport as in ○○○ Fund 3.

F. The instant arbitral award

1) On January 16, 2009, the Plaintiff asserted that the Defendant had the obligation to pay expenses incurred in the sale of the instant site in accordance with the instant undertaking and filed an application for arbitration with the ICC (number 16061/CYK), and on April 3, 2009, the Defendant raised an objection to jurisdiction, but the ICC continued to conduct arbitration in accordance with Article 6(2) of the ICC Arbitration Rules on April 16, 2009.

2) The ICC Arbitration Tribunal appointed Nonparty 1 on behalf of the Plaintiff as arbitrator, confirmed Nonparty 2, who was appointed by the Defendant, as arbitrator, and the presiding arbitrator was appointed Nonparty 3 under the joint name of the said arbitrator, and the arbitral proceedings were conducted in Japan.

3) During the arbitral proceedings, the Defendant argued that there was no arbitration agreement between the Plaintiff and the Defendant, and that there was no jurisdiction over the dispute of the instant case and that the requirements for return under the instant promise were not satisfied. However, on April 18, 2011, the instant arbitral tribunal was obligated to pay USD 32,601,248, equivalent to the Defendant’s share of the expenses, out of the Plaintiff’s expenses incurred in selling the instant site in accordance with the instant commitment, to the Plaintiff. In addition, the arbitral tribunal rendered an arbitral award that the Defendant is obliged to pay USD 2,152,46,230 and various legal expenses, such as attorney fees, and USD 822,476.76, and USD 275,000 paid to the ICC due to the arbitrator’s remuneration and expenses (hereinafter “instant arbitral award”).

[Grounds for recognition] Facts without dispute, Gap 1, 2, 3, 5, 6, 8-10, 15-19, 21-28, 32-35, 43, Eul 1-10, 13-19, 21, and 23 (including branch numbers for those with additional numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Summary of the plaintiff's assertion

In accordance with Article 39 of the Arbitration Act, Article 3 of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (hereinafter “New York Convention”), the Plaintiff seeks to permit the enforcement of the amount of money that the Defendant judged in the instant arbitral award to be paid to the Plaintiff and to pay damages for delay to the Defendant.

3. Whether the instant arbitral award satisfies the requirements for approval and enforcement under the New York Convention

A. Relevant provisions

As shown in the attached Table (as stated in Annex 44, 50, 51, and 38, the purport of the whole pleadings and arguments).

B. Whether the New York Convention is applied

1) On February 8, 1973, Korea ratified the New York Convention under the declaration of reservation that this Convention shall apply only to the recognition and enforcement of arbitral awards made within the territory of another Contracting State only in cases of commercial disputes under the laws of the Republic of Korea. The New York Convention came into force on May 9, 1973, and Article 39(1) of the Arbitration Act provides that "the recognition or enforcement of a foreign arbitral award subject to the New York Convention shall be governed by the said Convention," and the parties to the New York Convention of Japan in which the instant arbitral award was issued, and according to the above basic facts, the instant dispute constitutes a commercial dispute under the laws of the Republic of Korea. Accordingly, the New York Convention applies to the recognition and enforcement of the instant arbitral award.

2) Article 2(1) of the New York Convention provides that “Each Contracting State shall approve in writing agreement between the parties which have occurred or may arise in connection with a certain legal relationship regarding matters which could be resolved by arbitration, whether or not, in terms of a contractual nature.” Paragraph (2) of the same Article provides that “an agreement in writing shall include an arbitration agreement signed or exchanged between the parties to the arbitration clause in the contract or between the parties, or an arbitration agreement contained in an exchanged letter or transfer.” Under Article 4(1) of the New York Convention, in order to obtain the recognition and enforcement of a foreign arbitral award pursuant to Article 3 of the New York Convention, the applicant party shall submit a duly certified original or duly certified copy of the arbitral award, ② the original or duly certified copy of the agreement referred to in Article 2 above, or a duly certified copy of the agreement referred to in Article 2 above.”

C. Whether the requirements for establishing an arbitration agreement are satisfied

1) In order for the instant arbitral award to meet the requirements for recognition and enforcement under the New York Convention, an arbitral agreement shall be valid. In light of each provision of the New York Convention, etc., the Plaintiff, who is a party to the instant arbitral award, shall prove the existence of a written arbitral agreement in the event the Defendant contests the existence of the arbitral agreement (see, e.g., Supreme Court Decision 2004Da20180, Dec. 10, 2004).

The plaintiff asserts that the arbitration clause of this case under the contract between the shareholders of this case constitutes an arbitration agreement concerning the dispute of this case surrounding the letter of commitment, and therefore, we examine whether the following requirements for the arbitration agreement are satisfied.

2) Whether the Plaintiff is a party to the instant arbitration clause

In light of the fact that the instant contract between the shareholders was concluded between the Plaintiff, the Defendant, and the ○○○ Fund 3, and that the terms “parties” and “shareholders” were separately used in the contract clause, barring any special circumstance, it shall be deemed to include both the Plaintiff, the Defendant, and the ○○ Fund 3, signed on the instant contract between the shareholders, barring any special circumstance. The same applies to the instant arbitration clause, which provides for the instant arbitration agreement among the shareholders.

Therefore, it is reasonable to view that the plaintiff is included in the parties to the arbitration clause of this case.

3) Whether the instant arbitration clause affects the instant dispute surrounding the instant letter of commitment

The instant promise contains an agreement to return the instant advance payment that the Defendant received as the principal and interest of the instant payment in certain cases, i.e., the Plaintiff’s return agreement as the premise for the payment of the instant advance payment. This constitutes a subsequent agreement for the execution of the instant contract, which specifies the shareholders’ dividend, issuance of bonds, and repayment of loans, and constitutes a subsequent agreement for the execution of the instant contract. Thus, the instant dispute, which is a dispute concerning the return of advance payment between the Plaintiff and the Defendant regarding the instant letter of promise, is not a separate dispute unrelated to the instant contract, but constitutes a dispute arising from the instant agreement between the shareholders or a dispute concerning the application of the instant agreement between the shareholders.

In contrast, interpreting that the parties to the instant agreement agreed to resolve a dispute concerning the “distribution” of the instant advance payment through arbitration, but that dispute related to the “return” is not consistent with the parties’ reasonable intent, and rather, deeming that all the disputes related to the distribution and return of the instant advance payment as one means of dispute resolution, i.e., the instant arbitration clause, would be consistent with the parties’ reasonable intent.

Therefore, it is reasonable to view that there was a written arbitration agreement regarding the instant undertaking between the Plaintiff and the Defendant.

(iv) the applicable law and the application thereof;

A) Under Article V(1)(a) of the New York Convention, the governing law on the establishment and validity of an arbitration agreement shall be governed by the law to which the parties have designated the governing law of the arbitration agreement as the governing law of the arbitration agreement, and if not designated, it shall be deemed that such agreement includes an implied designation. In addition, even if the parties did not specify the governing law of the arbitration agreement, if the parties explicitly or implicitly agreed on the governing law of the principal contract including the arbitration clause, barring any special circumstance, the parties have expressed their intent to designate the governing law of the principal contract as the governing law of the arbitration clause.

B) The contract between the shareholders of this case is designated as the governing law of the Republic of Korea, and the governing law of the undertaking of this case was not explicitly designated, but it is reasonable to deem that there was an implied agreement between the plaintiff and the defendant designating the governing law of the undertaking of this case under the contract between the shareholders of this case as the governing law of the Republic of Korea. Thus, in this case, the governing law of this case is deemed to be the governing law of the Republic of Korea.

C) In light of the fact that various provisions are stipulated in the Do Community Law, which is the governing law of the instant arbitration agreement, on the premise of the validity of arbitration, the Do community law is based on the common law of the United Kingdom, and the court of the United Kingdom periodically applies it in accordance with the judgment of the English court, and the English case also seems to recognize the validity of arbitration (the doctrine of presumption of collective settlement in the English case). In light of the English case law, it is reasonable to deem that the instant arbitration agreement to be applied to the dispute surrounding the instant agreement is valid.

D. Sub-determination

As the Plaintiff submitted to the court the original and translation (A1) of the instant arbitral award, the agreement between the Plaintiff and the Defendant, which constitutes a certified copy of the agreement between the Plaintiff and the Defendant (A2) and the instant promise (A5), the instant arbitral award may be enforced in the Republic of Korea as prescribed by the New York Convention.

Therefore, barring any special circumstance, enforcement based on the instant arbitral award that the arbitral tribunal judged on April 18, 201 should be permitted.

4. Determination as to the existence of grounds for refusal of recognition or enforcement of the instant arbitral award

A. The defendant's assertion

1) Violation of the constitution of the arbitral tribunal

The agreement between the shareholders of this case only stipulates that only the defendant and ○○○ Fund 3 shall appoint an arbitrator, and does not have the plaintiff's right to appoint an arbitrator. Thus, in the arbitration case where the plaintiff and the defendant are a party, the composition of the arbitral tribunal shall be made in accordance with the ICC Arbitration Rules.

On the other hand, Article 8(4) of the ICC Arbitration Rules provides that when each party nominates one arbitrator, the ICC Arbitration Court shall determine the appointment after examining the qualification, and the presiding arbitrator shall go through the process of directly selecting the ICC Arbitration Court.

Nevertheless, the ICC arbitral tribunal, on behalf of the plaintiff, voluntarily appointed Nonparty 1 (English name 1 omitted) as an arbitrator, and then decided that Nonparty 1 and Nonparty 2 (English name 3 omitted) appointed by the defendant appoint a presiding arbitrator through mutual consultation.

Since the composition of the arbitral tribunal is made in violation of Article 8(4) of the ICC Arbitration Rules, the arbitral tribunal under Article 5(1)(d) of the New York Convention shall be refused to grant recognition and enforcement because the composition of the arbitral tribunal violates the agreement of the parties.

2) Violation of public order

In the course of the Plaintiff’s sale of the instant site to piracy, and the process of resolving the change of use of the instant site due to the failure in the process of cancelling the transaction, it was possible to reduce the Defendant’s loss by directly recovering and resaleing the ownership of the instant site by means of rescission or repurchase. However, in the process of acquiring and selling the piracy shares in the name of the original date, the Plaintiff selected an indirect method to sell them. During that process, the Plaintiff was practically liable for each loan owed to ○○○ Fund 3.

Such a series of transactions constitute transactions conducted in violation of Article 22 of the Asset-Backed Securitization Act (hereinafter “Asset-Backed Securitization Act”), which is a special purpose company, and constitutes transactions conducted in violation of the Plaintiff’s asset-backed securitization plan and prohibit temporary borrowing of funds. Ultimately, such transactions are null and void as acts violating Articles 20 and 22 of the Asset-Backed Securitization Act, which are mandatory regulations of

However, since the arbitral award of this case was made without considering the above reasons, the recognition or enforcement of the arbitral award of this case under Article V(2)(b) of the New York Convention shall be deemed to exist as a reason contrary to the public order of the Republic of Korea, and thus its recognition or enforcement shall be refused.

3) The existence of the grounds for the objection

On December 9, 2010, the Defendant received a decision from the court to reduce the amount of corporate tax imposed in the course of selling the site of this case by 15,449,202,230 won compared to the previous amount of corporate tax on December 9, 2010. Such reduction becomes final and conclusive as the Plaintiff’s withdrawal on January 20, 2014, after the instant arbitral award was rendered. Accordingly, with respect to the amount of KRW 7,724,601,115, which corresponds to half of the reduced corporate tax, the Defendant ultimately becomes final and conclusive after the arbitral award was made. Accordingly, the enforcement of this part ought to be denied.

B. Determination as to whether there are grounds for refusal to approve or enforce the arbitral tribunal’s organization

1) As stipulated in the arbitration clause of this case, the dispute of this case is the subject of arbitration, the plaintiff and the defendant are the parties to the arbitration, and the arbitration clause of this case does not have the right to appoint an arbitrator, unlike the defendant, to the plaintiff. The plaintiff and the defendant decided to "if the parties are unable to settle the dispute by other provisions, by arbitration in accordance with the ICC Arbitration Rules" under Article 10 (c) of the arbitration clause of this case. Thus, it is reasonable to view that the composition of the arbitral tribunal should be done by the arbitration rules of the plaintiff and the defendant in the arbitration case where the plaintiff and the defendant are the parties, according to the arbitration agreement of the plaintiff and the defendant.

2) According to the overall purport of the statement and arguments, the plaintiff and the defendant have the authority to nominate the arbitrator pursuant to Article 8(4) of the ICC Arbitration Rules, and the plaintiff has the authority to nominate the non-party 1 as a party to the arbitration. The defendant reserved the objection and appointed the non-party 2 as an arbitrator on the respondent. The ICC Arbitration Tribunal ordered two arbitrators designated by the parties to jointly select the chair by consultation within 30 days through letter on April 16, 2009 pursuant to the arbitration clause of this case. The ICC Arbitration Tribunal appointed the non-party 1 on behalf of the plaintiff as an arbitrator, confirmed the non-party 2, who was appointed by the defendant, as an arbitrator, and confirmed the fact that the non-party 3 was appointed as the non-party 3 under the joint name of the above arbitrator.

In light of the above facts, it is reasonable to view that the ICC arbitral tribunal did not directly appoint a presiding arbitrator, but instead, designated the method of appointing a presiding arbitrator by respecting the intentions of the parties to the arbitration. In addition, Article 7(4) of the ICC arbitral rules provides final authority to the decision of the ICC arbitral tribunal on the appointment of arbitrator, in full view of the fact that Article 7(4) of the ICC arbitral rules gives the final authority to the decision of the arbitral tribunal on the appointment of arbitrator, the composition of the arbitral tribunal of this case was made by the ICC arbitral tribunal in accordance with the ICC arbitral rules, and the Plaintiff and the Defendant agreed to comply with its arbitration rules, including Article 7(4) of the ICC arbitral rules, as alleged by the Defendant, it is difficult to view that there exists any ground, such as “non-compliance with the agreement between the parties,” which is the ground for refusal of approval and enforcement under Article 5(1)(d) of the ICC arbitral rules, as alleged by

Therefore, this part of the defendant's argument cannot be accepted.

C. Determination as to whether public order is violated

1) The meaning of public order under Article V(2)(b) of the New York Convention

A) According to Article 5(2)(b) of the New York Convention, if the recognition or enforcement of an arbitral award is contrary to the public order of that country, the court of enforcement country may refuse the recognition or enforcement of the arbitral award. This is to prevent the recognition or enforcement of the arbitral award from impairing the basic moral belief and social order of the enforcement country, and to protect it. Thus, the judgment is limited by considering not only domestic circumstances but also the stability of international trade order. The foreign law applied to a foreign arbitral award does not constitute a ground for refusal of recognition, but also does not constitute a ground for refusal of recognition on the ground that the foreign law applied to a foreign arbitral award violates mandatory law under the Korean positive law. If the recognition of the arbitral award is made, the recognition or enforcement of the arbitral award may be refused only if the specific result goes against the good morals and other social order of Korea (see, e.g., Supreme Court Decisions 93Da53054, Feb. 14, 1995; 200Da35795, Dec. 8, 2000).

B) Regarding the meaning of “a case contrary to good morals and other social order” as the grounds for refusal to recognize and enforce arbitral awards as above, (1) an arbitration is a representative alternative dispute resolution method (ADR) which is a procedure to resolve a dispute by an arbitrator’s decision, not by a court judgment, by agreement between the parties; (2) where an international commercial arbitration system is used by agreement between the parties from the time of an arbitration contract to the point of view, most of the parties can be deemed to be on an equal basis; (3) if a court of all countries intends to participate in or refuse the enforcement of arbitral awards under the name of “public order” in order to protect only the interests of their own or their citizens, international trade would be very unstable; (4) the effectiveness of the arbitration system is likely to be lost; and (3) the concept of "public order" and other basic principles of domestic law, which are contrary to the basic principles of domestic law or public order, should be considered to be in accordance with the basic principles of public order and order, and thus, the concept and public order of the new York Convention should be considered.”

2) Determination on the instant case

A) The Plaintiff is a foreign corporation specialized in asset-backed securitization. The Plaintiff is a person who registered asset-backed securitization plan and issued asset-backed securitization securities, and is subject to Articles 20 and 22 of the Asset-backed Securitization Act.

The subject of the instant arbitral award is the existence of the Defendant’s obligation to return the instant advance payment to the Plaintiff under the instant undertaking. However, as a dispute surrounding the existence of the obligation to return the said advance payment, it appears that the acquisition of the instant site or whether the instant land was borrowed directly or closely related to the said obligation, it is examined as to ① whether the Plaintiff’s acquisition of the instant site, etc. violated the Asset-Backed Act (hereinafter “the first issue”), and ② whether the circumstances violating Articles 20 and 22 of the Asset-Backed Securitization Act, as alleged by the Defendant, violate the international public order as the grounds for refusal to recognize and enforce the instant arbitral award (hereinafter “the second issue”).

B) As to the first issue

(1) Facts of recognition

(A) On October 25, 2010, the asset-backed securitization plan for which the Plaintiff applied for registration with the Financial Services Commission on October 25, 2010 stipulated as follows:

2. Table 2. The acquisition cost of real estate acquired in the course of the management, operation and disposal of the asset. - If the Plaintiff acquired the real estate through the court auction, the acquisition cost of the asset concerned shall be the acquisition cost of the asset. - If the Plaintiff acquired the ownership of the real estate from the debtor, the acquisition cost of the asset shall be the sum of the total value determined in consideration of the amount of credit, etc. in priority through negotiations with the debtor. e) If the Plaintiff acquired the ownership from the debtor, the acquisition cost of the asset will be the acquisition cost of the asset concerned. - The company will be allowed to temporarily sell the asset through the court auction (1. 346. 1. 3. 3. 3. 1) the acquisition cost of the asset-backed real estate acquired in the course of the operation and disposal of the asset-backed real estate acquired in the course of the operation and disposal of the asset-backed real estate, and the company will temporarily sell the asset-backed real estate to the person who acquired the asset-backed securities in the course of the sale and disposal of the asset-backed.

(B) On October 10, 2002, the Plaintiff entered into an asset management consignment agreement. As to the entrusted business, the Plaintiff determined that “any business related to the operation, management, and development of the instant site among the assets owned by the Plaintiff (referring to business related to business management, facility reallocation, lease adjustment, debt and human resources adjustment, permission for change of purpose of use, development, sale, etc.) is performed on the basis of the principle of good faith.”

[Grounds for recognition] Class B 1 and 15, and the purport of the whole pleadings

(2) Determination

(A) First of all, in light of the following circumstances, etc., which can be known through the facts of the above basic facts, facts of recognition, and the statements in B 5 and 6 regarding the acquisition and disposition of the instant site, it is difficult to deem that a series of processes, such as the Plaintiff’s acquisition and disposition of the instant site violates Articles 20 and 22 of the Asset-Backed Securitization Act. Other evidence submitted by the Defendant alone is insufficient to acknowledge it, and there is no other evidence to acknowledge it

① According to the asset-backed securitization plan above, the Plaintiff can acquire the instant land, which is secured real estate, in the name of the Plaintiff by means of a court auction or a direct purchase from the obligor. However, the above plan only stated the method of recovering claims through the lease or sale to a third party, and there is no content about the cancellation or redemption of the sold real estate. Meanwhile, the asset manager specified the above plan in order to actively participate in the process of sale.

② Around October 2002, the Plaintiff entrusted the management and sale of the instant site to the Chang Day (which is a company newly established after being separated from Hudson), acquired the instant site in the course of court auction or sale from December 2002 to 2003, and agreed on March 29, 2004 to complete the alteration of use (the alteration from quasi industrial area to residential area) while selling KRW 135 billion to Madson in the course of sale of the instant site at KRW 73.7 billion.

③ Since November 30, 2004, in the event that the change of the use of the purchase price is not completed by a specified period, the Plaintiff and the piracy, which did not change the use thereafter, decided that the Plaintiff may either cancel the sale and purchase contract or request the Plaintiff to repurchase the purchase price at KRW 103 billion. In other words, on December 31, 2004, the Plaintiff changed the sale price at KRW 103 billion. However, the aforementioned rescission or repurchase scheme is not included in the above plan, but is incidental to the management, operation, and disposal of the securitization assets (Article 22(1)2 of the Asset-Backed Securitization Act). However, it is reasonable to view that it constitutes “other business incidental to the business under subparagraphs 1 through 6” under Article 22(1)7 of the Asset-Backed Securitization Act.

④ On December 28, 2004, when an application for approval of change of the purpose of use of the instant site was rejected, the Plaintiff agreed to claim the disposal plan and acquire the ownership of the instant site in real manner by acquiring the shares of piracy in the name of 12 billion won in a creative name between the shareholders of piracy and the shareholders of piracy on June 8, 2007.

⑤ On June 19, 2007, Hudson acquired all equity shares in creative days from individuals in creative days as part of the management of the building site in this case.

④ On June 22, 2007, the Plaintiff, the Radson, the New Year’s Day, the New Year’s Day, the New Year’s Day, the New Year’s Day, the New Year’s Day, and the New Year’s Day, in relation to the management of the site of this case, agreed that all profits and losses related to the acquisition, disposal, and acquisition and disposal of the New Year’s shares of the New Year’s Day, and the New Year’s Day will belong to the Plaintiff. The Plaintiff consented thereto, and the Hudson, the New Year’s Day, the New Year’s Day, the New Year’s Day, and the New Year’s Day, in addition to the right to claim the settlement of accounts, shall not make any demand or claim against the Plaintiff, the New Year’s Day, and the other civil and criminal claims shall not be made, and thereafter, on November 1, 2007, the site of this case was disposed of in such a way as to sell the New Year’s Stocks in KRW 16 billion.

7) A series of processes related to the disposition, etc. of the site of this case in the above-mentioned paragraphs (iv) are consistent with the contents that the Dodson or creative day, the caretaker specified in the above plan, actively engaged in the process of selling the site of this case, or can be seen as part of the “sale in accordance with the procedures for operating other effective asset management business” among the methods for collecting the prices specified in the above plan. Even if it does not fall under the above, it can be seen that it constitutes a business incidental thereto as provided in Article 22(1)7 of the Asset-Backed Securitization Act, as seen earlier.

(B) In light of the following facts, Article 40 of the Asset-Backed Securitization Act provides that the act of borrowing funds is subject to criminal punishment, not in violation of Article 22 of the Asset-Backed Securitization Act, in relation to the borrowing of funds by the Defendant’s assertion, and Article 22 of the same Act provides that the act of borrowing funds shall be strictly interpreted, and it shall not be readily concluded that the act of borrowing funds is an indirect debt burden.

However, according to Gap's records, around September 30, 201, the defendant filed a complaint with the purport that "the plaintiff violated the Asset-Backed Act by letting the plaintiff borrow funds of 23.5 billion won in accordance with the asset-backed securitization plan, in selling the piracy shares owned by Chang Day around November 27, 2007, in collusion with him to the non-party 4, the representative of the plaintiff's Korean branch office, the non-party 5, the non-party 6, the representative of Hudson's branch office, the non-party 5, the non-party 6, who is the representative of the non-party 1, the Chang River Development." However, the Seoul Central District Prosecutors' Office (No. 94377 in 2010) did not directly borrow funds of 23.5 billion won on September 30, 2011, it is difficult to acknowledge that the plaintiff did not perform such act in light of the above evidence and evidence.

(C) Sub-determination

Therefore, this part of the defendant's argument is without merit.

C) As to the second issue

(1) Even if the Plaintiff’s act was in violation of Articles 20 and 22 of the Asset-Backed Securitization Act in relation to the first issue, in light of the following circumstances, it cannot be deemed that the basic principles, basic principles, or basic principles of domestic law that cannot yield even if considering internationality of Articles 20 and 22 of the Asset-Backed Securitization Act, which are the provisions for protecting investors, falls under the international public order.

(1) The Asset-Backed Securitization Act was enacted on the following grounds: “The Act was enacted on the following grounds: “The purpose of the Act is to establish an asset-backed securitization system in which financial institutions, etc. acquire assets from their financial institutions, etc. in order to enhance the soundness of the financial structure by facilitating the financing of bonds, land, etc., which are held by financial institutions, etc., and to stably supply long-term housing funds by securing mortgage-backed claims, and then issue and sell securities based on the transfer of assets from such financial institutions, etc., and distribute profits generated from the management or disposal of the relevant assets to investors:

(2) Article 22(1) of the Asset-backed Securitization Act provides that a special purpose company shall carry out the business of each subparagraph of the "asset-backed securitization plan", and such asset-backed securitization plan may be amended not absolute but absolute.

In other words, Article 22 of the Asset-backed Securitization Act provides for matters concerning registration of change of asset-backed securitization plan (Article 3 of the same Act and even if there is room to interpret that registration need not be granted to the Financial Services Commission in the event that any modification is made to insignificant matters prescribed by the Presidential Decree), and Article 5 of the same Act provides that the term “business” of a special purpose company provided for in Article 22 of the Asset-backed Securitization Act is limited to false statements, necessary matters, omission of necessary matters, violation of laws and regulations, etc. (Article 5 of the same Act) can expand its scope by relatively easily modifying the contents of asset-backed securitization plan, unless there are grounds for refusal

(3) In cases of violation of Article 22 of the Asset-Backed Securitization Act, the acts subject to criminal punishment shall be limited to “the case of borrowing funds or investing surplus funds in violation of Article 22 in violation of the asset-backed securitization plan”, and, except for the cases of violation of Article 22 of the Asset-backed Securitization Act, they shall not be subject to

In addition, even if criminal punishment was imposed as above, the same act that was conducted thereafter cannot be readily concluded to be unlawful continuously. In other words, as seen in the above Section 2, a legitimate loan, etc. can be made by modifying an asset-backed securitization plan as seen in the above Section 2. Thus, the illegal act and lawful act are not absolutely separate,

④ Therefore, even if the Asset-Backed Act was enacted for the economic purpose, etc. like the foregoing ①, and the Asset-Backed Securitization Act violated Articles 20 and 22 of the Asset-Backed Securitization Act, which are the provisions for protecting investors who invested in asset-backed securities issued by the Asset-Backed Securitization Act, it is difficult to deem that the recognition and enforcement of the instant arbitral award clearly interferes with important political, social, and economic interests protected by the said provisions, or infringe upon the fundamental principles, etc. (the draft resolution of the International Law Association, A46) of the definitions and morality that Korea intends to protect.

(2) Therefore, the Defendant’s assertion on this part, which is premised on the fact that a violation of Articles 20 and 22 of the Asset-Backed Securitization Act constitutes a violation of international public order as a ground for refusal of recognition and enforcement of the instant arbitral award, is without merit.

(d) Determination as to the existence of grounds for objection

1) A judgment of execution, which grants executory power to a foreign arbitral award so that it may proceed to compulsory execution procedures under the laws of the Republic of Korea, is judged on the basis of the time of the closing of argument. Thus, in a case where a ground for objection under the Civil Execution Act, such as the extinguishment of an obligation after the establishment of an arbitral award, has occurred and the circumstance that granting compulsory execution procedures based on a written arbitral award contradicts the fundamental principles of our law, the court may refuse the enforcement of the said arbitral award by deeming that it constitutes a violation of public order under Article 5(2)(b) of the New York Convention (see Supreme Court Decision 2001Da20134, Apr. 11, 2003, etc.).

(ii) the facts of recognition

A) On December 9, 2010, the Plaintiff filed a lawsuit against the director of the regional tax office seeking the revocation of disposition of imposition of corporate tax of 18,095,748,820 won imposed as of June 1, 2007 in relation to the process of selling the instant site, etc., and rendered a judgment in favor of the Seoul High Court on December 9, 2010 that partially revoked the portion exceeding KRW 2,646,546,59,202,225 won in corporate tax of 2004, Seoul High Court (Seoul High Court 2009Nu39126, 2004) (the amount of corporate tax of 15,449,202,225 won was reduced compared to the previous corporate tax amount). After the date of the instant arbitral award (the date of April 18, 2011), the instant judgment was reversed and remanded to 2011Du1245, and thus, the Seoul High Court proceeded 1014.

B) On April 3, 2013, the court of the case after remanded the case, "the head of the regional tax office of the regional tax office has cancelled the disposition of imposition of the amount exceeding KRW 300 million of the corporate tax of KRW 18,095,748,820 for the Plaintiff as of June 1, 2007, and the Plaintiff immediately withdraw the said lawsuit before the revocation procedure is completed, and the head of the regional tax office has consented thereto." The Plaintiff voluntarily withdrawn the lawsuit on May 12, 2014, and the head of the regional tax office of the regional tax office consented thereto, which became final and conclusive.

[Ground of recognition] Facts without dispute, Gap 48, 49, Eul 13 and 34, the purport of the whole pleadings

3) Determination

In light of the fact that the refund amount of taxation bonds above should be allocated to the plaintiff ○○○ Fund 3 and the defendant through liquidation, which is a corporate legal procedure, according to the contract between the shareholders of this case, in cases where surplus accrues after appropriating it as the financial resources for the repayment of the plaintiff's debt, the disposal of expenses already used, and the disposal of liquidation expenses, etc., when the refund amount of taxation bonds above is returned, it is difficult to deem that the defendant obtained a conclusive claim against the plaintiff or that part of the claims under the plaintiff's undertaking of this case were extinguished finally, and there is insufficient evidence to acknowledge this differently. Thus, the ground for objection raised by the defendant cannot be deemed to exist.

Therefore, this part of the defendant's assertion is without merit.

5. Determination on the claim for damages for delay

A. The plaintiff's assertion

1) In the first place, the Defendant is obligated to pay to the Plaintiff the amount determined to be paid by the Defendant to the Plaintiff under the instant arbitral award to the Plaintiff based on the Japanese law or the Korean law from the day following the delivery of the instant arbitral award to the day of full payment.

2) Even if Japanese law or Korean law does not apply to the amount determined by the arbitral tribunal of the instant case, the Defendant is obligated to pay to the Plaintiff damages for delay at the rate of 7% per annum from the day following the delivery of the written arbitral award of the instant case to the day of full payment pursuant to Article 28 of the Arbitration Act of 1975 with respect to the amount determined by the written arbitral award of the instant case.

B. Judgment on the main argument

1) Damages for delay are paid as damages for delay of the performance of the obligation, which are incidental to the original obligation. Thus, the statutory interest rate under Article 3(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings shall be determined by the governing law governing the original obligation. Meanwhile, although the statutory interest rate is applied with respect to the remedy by litigation proceedings for the purpose of facilitating litigation, it cannot be deemed that it has the procedural nature, and its substance is for setting the scope of damages for nonperformance of the obligation (see, e.g., Supreme Court Decisions 95Da34385, May 9, 1997; 2009Da10249, Jan. 27, 201; 2009Da7754, Oct. 25, 2012). Therefore, it is reasonable to interpret that the said special law cannot be applied in cases where a foreign corporation has the governing law of the original obligation (see, e.g., Supreme Court Decision 2009Da7754

2) On the other hand, the law applicable to the existence or absence of the Defendant’s obligation to return the advance payment of this case under the instant undertaking is as seen earlier, and therefore, it is reasonable to view that the law applicable to the Defendant’s obligation to return the advance payment of this case should be determined by the community law, which is the governing law of the original obligation, as to whether the Defendant’s obligation to compensate for the delay of the performance of the obligation is owed as a compensation for the delay

Therefore, this part of the Plaintiff’s assertion that the governing law on the existence of damages for delay is a Japanese law or a Korean law is without merit.

C. Judgment on the conjunctive assertion

1) According to the overall purport of Gap 1 and Eul 38's statements and arguments, ① among the 1993 International Arbitration and Arbitration Act of 193 (hereinafter "193 Arbitration Act"), the UNCITRAL Model Arbitration Act shall apply to all international commercial arbitrations in Canadian unless the parties expressly agree that the 1986 Arbitration Act shall apply, (based on 1950-1979 of the United Kingdom Arbitration Act) the 1986 Arbitration Act shall apply to arbitrations where the 1993 Museum Arbitration Act shall not apply; ② Article 1, Article 9 of the 1, and Article 9 of the Credit Transactions Act shall apply to arbitrations where the 1975 Museum Arbitration Act shall not apply to arbitrations where the 197th anniversary of the decision of the court, and ③ Article 98 of the Arbitration Act shall not apply to arbitrations where the 196th decision of the 198th decision of the court is rendered.

2) However, in light of the above provisions, the arbitral award of this case does not apply to Japan which is not a community country, and there is no evidence to prove that the Plaintiff and the Defendant agreed to apply the Arbitration Act of 1986 with respect to the Defendant’s obligation to return the advance payment to the Plaintiff under the instant undertaking to the Plaintiff. In light of the above provisions, the arbitral award of this case does not apply to the arbitral award of this case to the United States dollars and the Credit Transaction Act of 1975, which provides for the interest accrued at statutory interest rate, since it is difficult to deem that the claim for damages incurred due to the Plaintiff’s assertion and there is no other evidence to prove otherwise.

Therefore, this part of the plaintiff's assertion is without merit without further review.

6. Conclusion

The plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the part concerning the plaintiff's appeal excluding the part concerning the damages for delay in the judgment of the court of first instance excluding the part concerning the damages for delay in the judgment excluding the part concerning the damages for delay in the judgment of the court of first instance

[Attachment]

Judge Lee Gyeong-Gyeong (Presiding Judge)