선제타격형 국제소송에 대한 연구

Timing of proceedings in intellectual property rights dispute is one of the most significant factors when the parties to the proceedings shop their forum. How important the timing of proceedings was shown by Erich Gasser v. MISAT Srl case. In Gasser, the European Court of Justice gave precedence to lis pendens rules in Brussels Convention over the choice of court clause which the parties agreed on. However, the so-called “Italian torpedo” had delayed the proceedings between Gasser and MISAT. Nonetheless, the European Court of Justice has relied on the lis pendens rules in Brussels Regulation (formerly Brussels Convention) on basis of mutual trust of judiciary system between the EU Member States. It is doubtful whether the rationales taken by the European Court of Justice at the Gasser case can be applied to Asian courts. Therefore, we need to figure out and develop our own model fitted into the Gasser-typed cases. In this regard, it should be discussed whether the causes of action are identical between the first and second suit brought by same parties and when the suits becomes pending. At the outset, the Article delves into the regional trend in Europe in order to discuss the Gasser case, and Regional Convention and Regulation including Brussels Convention and Brussels Regulation. Secondly, the Article explores international trend including international convention. Thirdly, the Article explains the Principles presented by some of expert working groups in Europe and Korea. Even though the Principles are not Convention or Model Act, they are expected to have some impact on case law and legislation in Europe and Asia. Fourthly, the Article discusses current development related to international torpedo litigation in Korea. Afterwards, in Conclusion the Article presents new proposals in terms of torpedo litigation, which are based on “Korean Principles on International Intellectual Property Litigation” approved by Korean Private International Law Association on March 26, 2010.