Ulrop B.V. (Euro-Apex B.V.) (Law Firm RateS, Attorneys Lee Young-seok et al., Counsel for the plaintiff-appellant)

New PP Co., Ltd. (Attorney Lee Jae-sung, Counsel for the plaintiff-appellant)

January 20, 2015

1. Of the Netherlands between the Plaintiff and the Defendant, a compulsory execution under paragraphs (4), (5), (6), and (9) of the written arbitral award rendered on December 23, 201, which was determined by the Nonparty (English name omitted), shall be permitted in relation to the arbitration case in the attached Form No. 3625.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

A. Status of the parties

The plaintiff is a juristic person of the Netherlands, the main purpose of which is to produce and sell heat exchange machines for the mid-term care industry, and the defendant is a juristic person of the Republic of Korea, the main purpose of which is to produce and install heat exchange machines.

(b) Conclusion and progress of a license agreement;

1) The Plaintiff and the Defendant signed the license agreement (hereinafter “instant license agreement”) October 27, 1992 and November 25, 1992 with which the Defendant (levere, license users) received general know-how, including the Plaintiff’s patent, trademark, and various information, from the Plaintiff (lensor, license provider), and granted the right to manufacture and sell products in the Republic of Korea on the basis thereof (hereinafter “instant license agreement”). The instant license agreement came into force from February 22, 1993. At the time of entering into the instant license agreement, the Plaintiff and the Defendant agreed to expand the license area to all countries on the same side.

2) The main contents of the instant license agreement are as follows.

A) Article 15: In a case where a dispute relating to licenses arises, the Netherlands Hague value shall be the place of arbitration, and the dispute shall be settled by arbitration conducted in English in accordance with the Rules of the Netherlands Arbitration Board.

B) Article 3.7 (Confidentiality : License users (the Defendant) shall maintain the confidentiality of information. The license users shall take all means necessary for the confidentiality and, in particular, their employees shall maintain the confidentiality; provided that information already made available to a third party for purposes of marketing, sale, delivery or use is not subject to the confidentiality. The provisions pertaining to the confidentiality are applied for a period of five (5) years after the termination of this Agreement or from the date of conclusion of this Agreement, whichever comes later, 1).

(c) Article 1.3 (Information): Information means either a written or other storage that the licensee owns or may hold the right to award to the licensee during the term of this Agreement, or in the form of personal experience, namely, information for the design, manufacture, sale, and use of the product, in writing, or in the form of a document or other storage or personal experience.

(d) Article 3.5 (experience and Improvement): The Parties will provide each other with experience and improvement matters on products in developing information and licenses. The Party receiving the above experience and improvement matters shall be entitled to use such experience and improvement matters without additional payment, regardless of whether they are possible to obtain a patent. Experience and improvement matters remain in the property of the provider. Experience and improvement matters provided by the licensee shall be included in “information”.

(e) Article 11.3 (Use after Termination of Regular Time): Where this Agreement is terminated by a Party, each Party shall return to the other Party and suspend further use of the information, irrespective of the form in which it is provided with the information received from the other Party by termination.

3) The Plaintiff provided the Defendant with the procedural manuals of the technology ( Note 3) in around 1999, named Copex Techlogy.

(c) the occurrence of disputes and the progress of arbitral proceedings;

1) In the 2000s, there was a dispute over the business territory, etc. between the Plaintiff and the Defendant. On March 12, 2007, the Plaintiff notified the Defendant of “the 15th anniversary of the date of conclusion of the contract, i.e., the termination of the license agreement due to the Defendant’s nonperformance as of February 22, 2008,” and pursuant to Article 15 of the License Agreement, the instant license agreement against the Defendant was concluded on February 22, 2008, and the Defendant applied for an arbitral award with the following content: “Neland Ltd. (hereinafter “NAI”) of the Netherlands’s resources (Neland Ltd.).” The instant license agreement was concluded on February 22, 2008; the Defendant ought to comply with the specific provisions of the said license agreement; and the Plaintiff’s application for termination of the license agreement as the user under the instant license agreement was lawfully made by the parties to the instant case.”

2) However, on June 11, 2008, the Defendant filed an application for a patent (title of invention: board heat exchange machine) with the Korean Intellectual Property Office of Korea on June 11, 2008, and registered on October 17, 2008 with the said patent (patent No. 1) (patent No. 3 omitted), and on July 9, 2008, filed an application for a patent (title: title of invention: heat exchange file file, heat file file, heat assembly, and their manufacturing methods) with the Korean Intellectual Property Office (patent No. 4 omitted) on July 28, 2009 (hereinafter “patent No. 2”). In addition, on October 6, 2008, the Defendant filed an application for a patent with the Korean Intellectual Property Office of India on the patent registration No. 1 omitted, and registered as the patent registration number No. 2 (hereinafter “patent No. 2”).

3) On May 20, 2009, pursuant to Article 15 of the License Agreement, the Plaintiff filed an application with the NAI for arbitration with the purport that “the Defendant disclosed the Plaintiff’s trade secret (PP) to the NAI in violation of Article 3.7 of the License Agreement by filing an application for a patent, and continues to use the procedure manual, software, trademark, etc. despite the termination of the License Agreement,” and filed an application with the Defendant for arbitration to seek all rights and interests in the patent application, prohibition of the existing patent application, compensation for indirect compulsory performance, etc. (hereinafter “instant arbitral procedure”). Meanwhile, the Plaintiff filed a petition for an invalidation trial against the Korean Intellectual Property Office of Korea for an invalidation trial against the instant patent on July 28, 2010, the said Korean Intellectual Property Office rendered the said decision null and void, and the said decision became final and conclusive.

4) With respect to whether the non-party selected as an arbitrator by NAI in the arbitral proceedings of this case violated Article 3.7 of the License Agreement, the non-party deals with the issue such as whether the plaintiff can regard the Copex technology that provided the procedural manual to the defendant as the technology owned by the plaintiff around 1999, and the similarity or difference between the technology of the first and second patents, and the copex technology of this case, and the difference in the patent requirement of new patent, and on December 23, 201, the non-party's decision that the patent of this case was based on the plaintiff's knowledge protected by the License Agreement of this case. The non-party's decision that "the patent of this case was based on the plaintiff's patent award of this case," the non-party's patent application of this case was not based on the "patent No. 1" of this case, but without the plaintiff's patent application of this case, it is obvious that the defendant violated the Patent No. 2's patent application of this case, and thus, the plaintiff's patent tribunal of this case's claim No. 1.

5) On November 30, 2011, the arbitrator notified the parties that the instant arbitral award would be made around December 23, 2011, and the instant arbitral award reached the Defendant on January 4, 2012.

6) Meanwhile, on November 18, 2011, the Plaintiff rendered a request for an invalidation trial on the instant patent No. 2, but withdrawn the said request on January 12, 2012, and did not separately notify the instant case in the arbitral proceedings.

(d) The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (hereinafter referred to as the "New York Convention")

1) On February 8, 1973, Korea has entered into and ratified the New York Convention under the declaration of reservation that only the arbitral awards made within the territory of another Contracting State shall apply in respect of commercial relations under the laws of the Republic of Korea, and the Convention was effective as the Treaty No. 471 of May 9, 1973.

2) The Netherlands, the arbitral award of this case, is a member state of the New York Convention.

3) The provisions of the New York Convention relating to this case are as follows:

1.Article 1.1 of the table contained in this Convention shall apply to the recognition and enforcement of arbitral awards which are made within the territory of a State other than the State to which the recognition and enforcement of the award were requested, and which arise from disputes between natural persons or legal entities. Each Contracting State shall approve in writing the agreement between the parties regarding a certain legal relationship which is of the contractual nature or which may be resolved by arbitration, in whole or in part. 2. The term "agreement in writing" shall include the agreement between the parties to the arbitration clause in the contract or between their signatures or exchanges, which is binding upon the request of the State for the recognition or enforcement of the award, and which is not yet binding upon the request of the State for the recognition or enforcement of the award, or which is not yet binding upon the request of the State for the recognition or enforcement of the award. The parties concerned shall also submit to the request for the recognition or enforcement of the original award which is not yet binding upon the request of the State for the recognition or enforcement of the award and any equivalent evidence which is not yet binding upon the request of the State for the recognition or enforcement of the award which this Convention applies. It shall also obtain the recognition or enforcement of the original award or application:

[Ground of recognition] Facts without dispute, Gap evidence 1 through 5, Gap evidence 6-1, 2, Gap evidence 7, 8, Eul evidence 1, the purport of the whole pleadings

2. Determination on the cause of the claim

(a) Applicable law;

According to the facts established above, the dispute subject to the arbitral award of this case is clear that it is a dispute concerning commercial relations under the Commercial Code of the Republic of Korea, and the Netherlands that issued the arbitral award of this case is a party to the New York Convention, so the New York Convention applies to the recognition and enforcement of the arbitral award of this case.

B. Determination

The plaintiff submitted a copy and a translation of the arbitral award of this case, which recognized that there was an arbitration agreement, and the defendant does not dispute the existence and content of the arbitral award of this case, and therefore, it is deemed that a document under Article 4 of the New York Convention has been submitted (see Supreme Court Decision 2004Da20180, Dec. 10, 2004). Accordingly, the compulsory execution of the arbitral award of this case, which the plaintiff seeks enforcement among the arbitral award of this case, shall be permitted unless there are grounds for rejection stipulated in Article 5 of the New York Convention.

3. Judgment on the defendant's assertion

A. Summary of the assertion

1) 이 사건 쟁점 중재판정 제4항은 강제집행의 대상인 이 사건 라이선스계약상 기술(‘confidential Euro-Apex� Technology’)의 정의 및 범위를 전혀 특정하고 있지 아니하므로, 집행판결이 내려지더라도 강제집행을 하는 것이 불가능하다. 따라서 이 부분 소는 권리보호의 이익이 없어 각하되어야 한다.

2) The instant arbitral award constitutes “where the recognition or enforcement of a judgment is contrary to the public order of that country” under Article 5(2)(b) of the New York Convention for the following reasons, and thus, compulsory execution should be refused.

A) According to Article 3.7 of the License Agreement, the duty to maintain confidentiality remains for five (5) years after the termination of the instant contract, and thereafter, the technology under the License Agreement cannot be deemed a trade secret any longer. Nevertheless, paragraphs 4 and 6 of the instant instant arbitral award prohibits all patent applications based on the technology under the License Agreement from a time limit without limitation. This goes against the public order of the Republic of Korea, since it is not merely an order to permanently prohibit a trade secret infringement.

B) Paragraph (4) of the instant arbitral award is meaningful only for the period during which the obligation to maintain confidentiality under the instant license agreement exists (five years after the date of termination of the contract). Since the term of the aforementioned duty to maintain confidentiality is up to February 22, 2013, which was five years after the date of termination of the contract, from February 22, 2008, until February 22, 2013, the date of termination of the contract, the Defendant’s duty to prohibit a patent application based on the instant arbitral award has already expired at the expiration of the term. This constitutes a ground for claim under the Enforcement Act for reasons arising after the establishment of the instant arbitral award.

C) While the Plaintiff had rendered a request for an invalidation trial on the Patent No. 2 of this case during the arbitral proceedings, the Plaintiff made the instant arbitral proceedings to proceed with the instant arbitral proceedings as they were silently and concealed to the arbitrator. Moreover, the Plaintiff filed a claim for enormous damages, etc. on the ground of infringement of the value in the instant arbitral proceedings even though the Plaintiff was in the absence of technological value under the license agreement. Such an act constitutes a fraudulent act, and the Defendant was not aware of such fraudulent act without negligence, and the Defendant was not able to defend against the pertinent attack. Since the instant act is important related to key factual relations which form the basis of the instant arbitral award, it is apparent that the instant arbitral award was obtained by deceptive act, and thus its approval or enforcement is contrary to the public order of the Republic of Korea.

D) Since the instant arbitral award was determined that the instant patent was only a follow-up of the instant patent No. 1, it was essential to state such determination on the grounds therefor, but the instant arbitral award failed to present reasonable grounds, which is contrary to the procedural public order and good morals of the Republic of Korea.

E) Of the instant arbitral award, the order of indirect compulsory performance ordering certain compensation (Paragraphs. 5, 6, and 9) is contrary to the Civil Execution Act, which is a mandatory law of the Republic of Korea. In the event that the Defendant fails to perform his/her obligation, the Defendant ordered payment without reasonable grounds under the circumstances where it is impossible to calculate reasonable compensation due to the failure to consider the value of the technology under the license agreement, which is the most important factor for the size of the damage the Plaintiff would incur, and the amount excessively calculated is contrary to the public order and good morals of the Republic

3) 이 사건 쟁점 중재판정 제9항의 집행을 구하는 근거로서 원고가 주장하는 ‘이 사건 인도특허의 이전 지연’은 오로지 원고에 의하여 초래된 것일 뿐이고, 위 제9항의 전제가 되는 이 사건 쟁점 중재판정 제7항의 이행 여부(이 사건 인도특허 이전 여부)에 관하여 인도의 봄베이 고등법원에서 2014. 9. 29. 집행결정을 하고 그 항소심이 진행 중이며, 피고는 이 사건 쟁점 중재판정 제6항을 위반한 사실이 없으므로(Euro-Apex� Technology에 관한 특허출원에 새롭게 착수한 사실이 없으므로), 각 이에 관하여 집행판결을 할 수 없다.

B. Determination

1) Determination on the assertion that there is no benefit of protection of rights

If a court grants executory power on an arbitral award by a judgment of execution, the award and the judgment of execution shall become a joint enforcement title. Therefore, in principle, the arbitral award subject to a judgment of execution shall also be required to have the specific nature to the extent possible for compulsory realization, such as the performance of specific benefits. In other cases, even if the judgment of execution is made, compulsory execution may not be made based on the arbitral award in reality.

그러나 한편, ① 이 사건 쟁점 중재판정 제4항은 ‘원고가 피고에게 제공하였던 Euro-Apex�의 기밀 기술에 기초한 일체의 특허출원을 중지하여야 한다’는 것으로서 당장 어떠한 급부의 이행을 명하는 것이 아니라 일정한 행위의 금지를 명하는 것이므로, 그 행위 금지를 위한 집행판결을 받아둘 권리보호의 이익이 넓게 인정되어야 하는 점, ② 이 사건에서 특허출원이라는 행위 금지의 대상이 되는 ‘Euro-Apex�의 기밀 기술’은 이 사건 라이선스계약이 유효한 기간 동안 원고가 피고에게 제공한 기술을 의미하는 것으로 그 시간상, 범위상 특정이 가능한 점 등에 비추어 보면, 이 사건 쟁점 중재판정 제4항에 관한 집행판결을 구하는 부분은 권리보호의 이익이 있다고 봄이 상당하다.

Therefore, the defendant's above assertion is without merit.

2) Determination as to the assertion that Article V(2)(b) of the New York Convention constitutes

A) Relevant legal principles

Article 5(2)(b) of the New York Convention aims to prevent the recognition or enforcement of an arbitral award from undermining the basic moral belief and social order of the enforcement state, and protect it. As such, a limited interpretation should be made by taking into account not only domestic circumstances but also the stability of international trade order. If the recognition of the pertinent arbitral award is made, the recognition or enforcement of the arbitral award may be refused when the specific result is contrary to the good customs and other social order of the enforcement state (see, e.g., Supreme Court Decisions 93Da53054, Feb. 14, 1995; 2001Da20134, Apr. 11, 2003).

Based on these legal principles, this part of the defendant's argument is examined.

B) Whether the infringement of trade secrets is permanently prohibited and thus contravenes public order or order

The prohibition of infringement of trade secrets shall be limited to the time necessary for the infringer or other fair competitors to acquire the trade secrets by means of a lawful method such as independent development or reverse design within the necessary time limit in order to ensure fair and free competition and to protect the trust relationship of human beings, etc., and considering the situation of rapid development of technology and the human and material facilities of the infringer as shown in pleadings, etc., and the prohibition of infringement of trade secrets shall not be limited to a considerable period of time for which the infringer or other fair competitors are required to obtain the trade secrets by means of a lawful method such as independent development or reverse design, and it shall not be limited to a restrictive nature, but it shall not be limited to the public interest and superior to the public interest to encourage free competition and allow employees to display their knowledge and ability (see, e.g., Supreme Court Decisions 96Da1605, Dec. 23, 196; 97Da2452

이 사건에 관하여 보건대, 이 사건 쟁점 중재판정 제4항, 제6항은 이 사건 라이선스계약의 유효기간 동안 원고가 피고에게 제공하였던 이 사건 라이선스계약상 기술(confidential Euro-Apex� Technology)에 기초한 일체의 ‘특허출원’을 중지할 것을 그 내용으로 하고 있는바, 그러한 특허출원의 과정에서 위 기술상 정보 등이 공개됨으로써 그것이 영업비밀 침해행위의 범위에 포섭될 수는 있어도 특허출원이 곧 영업비밀 침해행위 전부를 의미하는 것은 아니므로, 위 주문에 따르더라도 결국 피고로서는 이 사건 라이선스계약상 기술을 이용하는 전반적인 행위가 영구히 금지되는 것이 아니라 그 기술에 기초하여 특허출원을 하는 것만이 기간의 제한 없이 금지되는 것일 뿐이므로, 위 주문이 영업비밀 침해행위 자체를 영구적으로 금지하는 것이라 볼 수는 없다.

Therefore, it cannot be said that the patent application did not specify the prohibition period and did not contravene public order.

C) Whether there was a ground to challenge the instant arbitral award(s)(4)

The Defendant appears to have asserted this part of the instant arbitral award on the premise that the obligation not to grant patent application under Article 4 of the instant arbitral award is subject to the period of existence of the duty to maintain confidentiality under the instant license agreement. However, since it is apparent that the instant arbitral award’s obligation, which is the executive title entitled to executory power by the judgment of execution of this court, is separate from the duty to maintain confidentiality under the instant license agreement, the Defendant’s assertion on this different premise is without merit.

D) Whether the instant arbitral award was obtained by fraud or not

The grounds for refusal of enforcement under Article 5(2)(b) of the New York Convention may include the case where the arbitral award was obtained by fraud. However, it is clearly acknowledged by objective evidence with clear probative value that the applicant party (hereinafter “applicant party”) committed fraudulent acts that could be punished in the arbitral proceedings, and the opposing party could not make attack and defend against it in the arbitral proceedings because he/she did not know of the fraudulent act by the applicant party without negligence, and even if the fraudulent act by the applicant party satisfies all the requirements that are important to the issue of the arbitral award, the enforcement of the relevant foreign arbitral award may be refused immediately without undergoing separate procedures to revoke and suspend the foreign arbitral award (see Supreme Court Decision 2006Da20290, May 28, 2009).

We examine whether the enforcement of the instant arbitral award may be immediately denied in accordance with the above legal doctrine. The fact that the Plaintiff made a request for invalidation trial on the instant patent No. 2 before the instant arbitral award was made and did not separately notify the fact in the instant arbitral proceeding. In full view of the purport of the entire pleadings in the statement of No. 7, the Plaintiff is interested in the patent only for the purpose of proving the violation of the duty of confidentiality. If the Plaintiff does not so, the patent is not easy to use. The patent can be easily invalidated (Plese remined). The patent can be easily invalidated. The fact that the Plaintiff sent to his/her agent the fact that the Plaintiff’s agent is “proved u u u u u u n n n n n n n n n n n n n n n n n n n n n n n n n n n n n n n n n n n n n n n n n

However, in light of the facts acknowledged earlier and the above evidence, ① the license agreement of this case was concluded exclusively for patent and general know-how including patent, trademark and other information provided by licensing providers, and the arbitral award of this case is related to disputes arising from confidentiality clause (3.7) under the license agreement of this case. The issue of the arbitral award of this case is not whether the patent application of this case can be seen as a violation of confidentiality clause under the license agreement of this case, but also whether the defendant's patent application of this case based on the technology can be seen as invalid and invalid because it did not meet the plaintiff's patent protection requirement under the patent agreement of this case. ② Accordingly, it cannot be seen that the defendant's assertion that the patent application of this case did not meet the plaintiff's patent protection requirement under the patent invalidation agreement of this case and that the patent application of this case was invalid and issued in the invalidation trial procedure of this case, and it cannot be seen that the plaintiff's assertion that the patent application of this case did not meet the patent protection requirement under the patent invalidation agreement of this case.

Therefore, the defendant's above assertion is without merit.

E) Whether the enforcement of the instant arbitral award may be refused on the ground of non-performance of the grounds therefor

In light of the above, it is clear that the arbitral award does not constitute a ground for refusal of recognition of a foreign arbitral award under the New York Convention, which applies to the arbitral award of this case, and even if there is no detailed reason in the foreign arbitral award, it cannot be deemed that it does not contravene the public order of Korea (Supreme Court Decision 89Meu20252 delivered on April 10, 190).

Therefore, the defendant's above assertion is without merit.

F) Whether the order of the arbitral award ordering indirect compulsory performance is contrary to the public order

In full view of the following circumstances, the part ordering the payment of indirect compulsory compensation during the instant arbitral award cannot be deemed as contrary to the public order and good morals of the Republic of Korea to the extent that it refuses its enforcement.

(1) Considering the overall purport of the arguments in evidence Nos. 4 and 7, Article 1056 of the Netherlands Civil Procedure Act can be acknowledged as a fact that an arbitrator is entitled to indirect compulsory compensation against a party’s non-performance of an arbitral award in arbitral proceedings involving the Netherlands as its place of arbitration. As such, the imposition of indirect compulsory compensation may be the subject of the instant arbitral award, and it is not allowed for the enforcement state to completely review the right and wrong of the substantive judgment, such as the application of the relevant foreign arbitral award, under the pretext of determining whether there is a ground for refusal of enforcement.

(2) Although the defendant asserts that ordering indirect compulsory performance in an arbitral award violates the Civil Execution Act of the Republic of Korea, there is no ground provision that ordering indirect compulsory performance in an arbitral award is prohibited under the Civil Execution Act of the Republic of Korea.

(3) Rather, according to Article 261 of the Civil Execution Act, an indirect compulsory enforcement order that orders the obligor to compensate for a non-performance of obligation upon a separate request from the obligee after the enforcement title was established in the ordinary procedure. However, even if the enforcement title is established in view of the time of the closing of argument in order to ensure effective enforcement of the judgment ordering the obligor to act of an act of an act of an act of an incidental nature, it is obvious that the obligor is not likely to arbitrarily perform his/her obligation, and the obligor has been given an opportunity to sufficiently state the legitimacy of the decision in the adjudication procedure. If the amount of reasonable compulsory enforcement can be calculated by the order under Article 261 of the Civil Execution Act, the said judgment procedure also provides an indirect compulsory enforcement order that the obligor would compensate for certain damages in the event of the obligor’s non-performance of obligation in the future (see Supreme Court Decision 2013Da50367, Nov. 28, 2013).

(4) The Defendant asserted that, at the time of the arbitral award in this case, when the Defendant did not perform his/her obligation, the amount of damages the Plaintiff would incur or the value of the technology in the license agreement of this case, it was unable to calculate reasonable indirect compulsory compensation. However, indirect compulsory compensation does not directly relate to the existence of damages or the amount of damages the obligee would incur due to nonperformance, and is not directly related to the existence or absence of the obligee’s duty of action or duty of omission, the benefits the obligor would incur due to the continuation of nonperformance, the social impact of the nonperformance, and other circumstances. In light of the progress of the arbitral award in this case, the arbitrator appears to have determined the amount of reasonable indirect compulsory compensation by taking into account all such circumstances, and thus, it cannot be deemed that there was a situation in which adequate indirect compulsory compensation could be calculated.

(5) Although the Defendant asserts that, in comparison with the monetary damages (600,000 U.S.) determined in the second arbitral award after the instant arbitral award, indirect compulsory compensation is unreasonable, it is not only different from the monetary damages, but also it is not possible to discuss whether the amount would be excessive on the basis of the estimated value that the violation will continue, since the indirect compulsory compensation would be different from the monetary damages.

Therefore, the defendant's above assertion is without merit.

G) Sub-determination

Ultimately, if the arbitral award in this case is recognized, the specific result cannot be deemed as contrary to the good customs and other social order of the Republic of Korea, which is the executing country, and thus, it cannot be deemed that there exists a ground for refusal of enforcement under Article V(2)(b) of the New York Convention in relation to the instant arbitral award.

3) Determination on each of the arguments regarding paragraphs 6 and 9 of the instant arbitral award

살피건대, 피고가 주장하는 사정들(이 사건 인도특허를 이전하려 하였으나 원고의 거절로 무산되었다는 사정, 인도의 봄베이 고등법원에서 이 사건 중재판정 제7항이 이 행되었는지 여부에 관하여 재판이 진행되고 있다는 사정, Euro-Apex� Technology에 관한 특허출원에 새롭게 착수한 적이 없다는 사정)만으로는 뉴욕협약상 집행판결을 거부할 사유가 되지 못한다.

오히려, 이 사건 쟁점 중재판정 제9항은 ‘이 사건 중재판정 제7항을 위반하는 경우, 즉 이 사건 중재판정의 통지 후 30일 이내에 이 사건 인도특허를 무조건적이고 취소불능하게 완전히 이전하는 등의 의무를 이행하지 않는 경우’ 간접강제를 할 수 있다는 규정이고, 이 사건 쟁점 중재판정 제6항도 ‘Euro-Apex� Technology에 관한 특허출원에 새롭게 착수하는 경우’ 간접강제를 할 수 있다는 규정으로서, 그 간접강제의 개시요건은 중재판정에 대하여 법원이 집행력을 부여하는 절차인 집행판결의 단계에서 심리할 사항이 아니라 집행기관이 집행실시의 단계에서 그 존재 또는 부존재를 스스로 조사할 사항에 불과하다.

Therefore, the defendant's above assertion is without merit.

4. Conclusion

The plaintiff's claim is reasonable, and it is so decided as per Disposition.

[Attachment]

Judges Jin (Presiding Judge) Lee Jin-sung

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