EWJ August 62 2025 web - Journal - Page 80
What’s in a Name?
Commercial Court Considers
Identity of Arbitral Claimant
by Paul Taylor, partner and Reema Shour, Professional Support Lawyer
Energyen Corporation -v- HD Hyundai Heavy Industries Co Ltd [2025] EWHC 1586
(Comm)
The English Commercial Court has dismissed
challenges to an ICC arbitration award in circumstances where a corporate restructuring led to a dispute as to the rightful claimant in arbitration
proceedings.
In the RFA, the arbitral claimant was described as the
HHI company that was established in 1972. Paragraph 7 of the RFA referred to the arbitral claimant as
the original signatory of the supply contract. The
Terms of Reference for the arbitration, as agreed by
the parties, referred to the arbitral claimant as the
entity which had entered into the supply contract.
The appeal was brought on the grounds of lack of
jurisdiction, pursuant to s.67 of the Arbitration Act
1996 (the Act), and serious irregularity, pursuant to
s.68 of the Act.
In March 2023, the HHI 2019 Company changed its
name to HD Hyundai Heavy Industries Co Ltd. The
Original HHI Signatory changed its name to HD
Korea Shipbuilding and Offshore Engineering Co
Ltd.
The background facts
Two Korean companies, Energyen Corporation
(Energyen) and HD Hyundai Heavy Industries Co
Ltd (Original HHI Signatory) entered into a supply
contract for feed water heaters (FWHs) for a thermal
power plant in Saudi Arabia.
In April 2023, the arbitral claimant’s counsel notified
Energyen and the tribunal of the change in name.
The ICC Secretariat subsequently notified the tribunal
and the parties that the reference had been updated
to reflect the change in the arbitral claimant’s name to
HD Hyundai Heavy Industries Ltd.
The supply agreement incorporated an ICC
arbitration clause and both the supply agreement and
the arbitration clause were governed by English law.
In September 2024, the tribunal issued an award
ordering Energyen to pay the arbitral claimant damages of over US$17 million. At this point, the issue of
the legal effect of the Spin Off was raised.
In early 2015, there was an internal reorganisation
within the Original HHI Signatory. In April 2019, the
Original HHI Signatory officially notified Energyen
in writing that it intended to “spin off ” the company
in June 2019 and establish a new Hyundai Heavy
Industries Co Ltd.
Challenges to the award
Energyen argued that the tribunal had no jurisdiction
to make an award in favour of the HHI 2019
Company because:
In May 2019, a corporate reconstruction plan for the
Original HHI Signatory’s business, referred to as the
“Spin Off Plan”, was approved by the Original HHI
Signatory’s shareholders.
1. it was the Original HHI Signatory which was and
remained party to the supply contract and the
arbitration agreement;
In June 2019:
1. The Spin Off was publicly registered in Korea and
details were publicly available,
2. it was the Original HHI Signatory which
commenced the arbitral reference;
3. the steps that were necessary under English law for
a transferee from an original party to an arbitration
agreement to be able to assert the right to arbitrate
were not taken.
2. The Original HHI Signatory was renamed “Korea
Shipbuilding and Offshore Engineering Ltd”, and
3. A new company was incorporated, called Hyundai
Heavy Industries Co Ltd (HHI 2019 Company),
but with a different company code and corporate
registration number to the Original HHI Signatory.
Energyen also argued serious irregularity leading to
substantial injustice because it alleged amongst other
things that the tribunal was misled into accepting a
change in the name of the claimant party on the basis
of a false representation.
The arbitration
An issue subsequently arose with allegedly defective
FWHs supplied by Energyen under the supply
contract. In October 2021, the HHI 2019 Company
made a Request for Arbitration (RFA) against
Energyen.
EXPERT WITNESS JOURNAL
The Commercial Court decision
The effect of the Spin Off as a matter of law
As a matter of English law, the effect of a corporate
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AUGUST/SEPT 2025
