1. Case summary
An asset management 에볼루션 바카라 사이트 (“Asset Manager A”) and a securities 에볼루션 바카라 사이트 (“Securities 에볼루션 바카라 사이트 B”) created an investment product that generates profits from purchasing and operating a famous hotel in the United States. It was agreed that Asset Manager A would be responsible for the establishment and management of collective investment schemes, and Securities 에볼루션 바카라 사이트 B would act as the lead manager and the total underwriter of beneficiary certificates. However, the COVID-19 pandemic broke out when they were in the process of purchasing real estate. As they failed to timely raise funds required to pay the purchase price for real estate, the down payment was forfeited. The parties had no disagreement that the two companies should pay equally for the initial deposit (i.e., soft deposit), but they had disagreement with regard to the payment of the additional deposit (i.e., hard deposit): Securities 에볼루션 바카라 사이트 B maintained the position that the additional payment should be equally paid by the parties; and Asset Manager A had the position that the total amount should be borne by the underwriter. The district court in charge of this case ruled that the additional deposit should equally paid by the parties.
2. The Supreme Court’s judgment and our assistance
The appeal court in charge of the above case reversed the judgment of first instance that the additional deposit should be divided equally, and came to the conclusion that it was right that Securities 에볼루션 바카라 사이트 B, as the underwriter, bears the full amount. We pointed out that although the escrow agreement was a disposition document that explicitly stipulated the obligation of Securities 에볼루션 바카라 사이트 B to pay the additional deposit, the significant thereof was overlooked in the first instance and thus insufficient hearings were conducted. At the same time, submitting e-mails exchanged between the parties in the process of drafting the escrow agreement and a revised copy of the contract as evidence, we argued that, according to the interpretation of the contract, there was an agreement between the parties that Securities 에볼루션 바카라 사이트 B would pay the full amount of the additional deposit. In order to help the court understand the complex transaction structure of this case, we focused all our capabilities on the court oral argument (making a presentation). Through this effort, we were able to overturn the conclusion made at the first trial by changing the judges’ existing perspective on the whole story, main issues, and interpretation of the case. Further, we gave the final victory to Asset Manager A by obtaining the dismissal of case without hearing proceedings at the Supreme Court.
3. Meanings of this judgment towards financial institutions
As the decline of the value of real estate in the domestic and foreign markets has accelerated due to the recent Russia-Ukraine war and interest rate hikes in the U.S., disputes between fund investors, fund sales companies, and fund management companies that have invested in real estate funds are rapidly increasing. This ruling is meaningful in that it made a clear decision on the roles and responsibilities between the securities 에볼루션 바카라 사이트, which is the lead manager and total underwriter, and the asset management 에볼루션 바카라 사이트, which is the fund management 에볼루션 바카라 사이트, in alternative investment in overseas real estate. The conclusion of this case was that the burden of the hard deposit was borne by the securities 에볼루션 바카라 사이트 as the total underwriter, but it is difficult to say that this conclusion is equally applicable to other cases. This is because the decisive reason why the court made such a judgment was based on the terms of the escrow agreement. Therefore, each financial institution needs to examine its responsibilities and obligations more closely at the contract drafting stage. If you are caught up in a lawsuit, you will need to examine various contracts more carefully.
□Attorneys in charge: Ko Young-Han, Choi Jin-Sook, Kim Do-Hyung and Park Ji-Yune
