EWJ August 62 2025 web - Journal - Page 81
succession of a company established overseas on an
English law contract to which the pre-succession entity
was a party is determined by the law of the company’s
domicile.
Did the HHI 2019 Company validly commence
arbitration?
Energyen argued that arbitration had not been validly
commenced due to alleged defects in the RFA, namely
(i) a failure to specify the basis on which the claims
were made and (ii) a failure to attach the relevant
agreements (the Spin Off Plan), including the agreement to arbitrate. These were said to be fatal breaches
of Article 4(3) of the ICC Rules which sets out the
nformation to be provided in a RFA.
The Commercial Court heard expert evidence on
Korean law. It concluded that, as a matter of Korean
law, the effect of the Spin Off plan was that all contracts which had been entered into by the Original
HHI Signatory were succeeded to by the HHI 2019
Company. If the question had been asked, in July
2019 and thereafter, who the parties to the supply contract were, the answer would have been Energyen and
the HHI 2019 Company.
The Court was satisfied that not every aspect of
Article 4(3) created a jurisdictional requirement, such
that alleged non-compliance would provide a jurisdictional objection to the validity of any resultant
award pursuant to ss.30 and 67 of the Act.
As a result, the Court dismissed the argument that
there was no valid arbitration agreement between
Energyen and the HHI 2019 Company.
In this case, the Court was satisfied that:
1. The basis of claim was sufficiently and accurately
described as a claim for breach of the supply contract
(without deciding whether a failure to communicate
this information in the RFA would necessarily have
rendered it invalid, an issue best left to a case where it
arose).
Who commenced the arbitration?
If HHI Original Signatory commenced the
arbitration, then the tribunal had no jurisdiction to
make the award in favour of the HHI 2019 Company.
This was so even if it was the HHI 2019 Company that
was entitled to enforce the arbitration agreement in
the supply contract and to enforce the contractual
claim under the supply contract.
2. The arbitration agreement in the supply contract
was sufficiently identified. There was also no jurisdictional requirement to identify every document relevant to the claimant’s contention that it was a party to
the identified arbitration agreement. The Spin Off
Plan was not an agreement but a unilateral legal act by
the company. In any event, the ICC Rules allowed a
claimant some leeway in determining how much supporting documentation to submit with a RFA.
According to the caselaw, the issue was whether
Energyen reasonably understood who was bringing
the claim and whether it was objectively clear that the
claim was intended to be brought by the party actually
entitled to enforce the relevant contractual rights.
Having construed the RFA, the Court found in
favour of the HHI 2019 Company. Amongst other
considerations:
1. The rights being asserted in the RFA were those of
the HHI 2019 Company;
Notice of transfer
The succession took place some years before the
arbitral reference commenced with the arbitral appointment and reference contracts being at all times
and for all purposes contracts to which the HHI 2019
Company (and not the HHI Original Signatory) was
a party.
2. It must have been obvious to Energyen that the RFA
was being served on behalf of the entity entitled to
enforce the supply contract at the relevant time;
3. The RFA was issued in the name of the HHI 2019
Company and gave its address, not that of the
Original HHI Signatory;
There was in English law no procedural obligation on
the HHI 2019 Company to give notice prior to commencement of the arbitral reference of a statutory
transfer of the right to arbitrate and of the claim it was
seeking to assert. Nor was there such a requirement in
Korean law.
4. While the RFA identified the arbitral claimant as the
party that entered into the supply contract, as a matter of Korean law, the HHI 2019 Company had a status identical or equivalent to the former company;
In conclusion, the challenges to the award were
dismissed.
5. While there was at most a misdescription in the RFA
in that it stated the arbitral claimant was founded in
1972, nonetheless the HHI 2019 Company was in
effect the statutory continuation of that company;
Comment
If lengthy litigation is to be avoided, it is critical when
drafting a RFA and any other form of arbitration notice to ensure that the correct claimant is identified,
that the claims are brought in the name of the correct
party and that the procedural requirements in the applicable arbitral rules are complied with.
6. Energyen was aware of the Spin Off, having been
given adequate notice of it at the relevant time; and
7. The Terms of Reference gave the name and address
of the HHI 2019 Company as those of the arbitral
claimant.
This case is also another example of how rarely appeals pursuant to ss. 67 and 68 of the Act are successful.
In the Commercial Court Report issued in March
2025, the Court noted that for the 2023-2024 year
These findings were sufficient to dispose of both the
jurisdictional challenge and the serious irregularity
allegations.
EXPERT WITNESS JOURNAL
79
AUGUST/SEPT 2025
