Chenco Chemical Engineering And Consulting GmbH v DO Fluoride Chemicals Co. Ltd

In enforcing a final arbitral award, the court may determine whether a post-award condition affecting enforcement has occurred, including whether the debtor continued to use protected technology. The parties cannot relitigate factual and legal findings already determined by the tribunal. Where the award protects a core industrial process, liability is not avoided by changing only one component, such as a reactor, while continuing to use the surrounding protected process. Nor may a party reopen a rejected public-domain argument. The court assesses alleged post-award changes by reference to contemporaneous documents, objective facts, motives and overall probabilities. Marginal or incremental alterations will not suffice where they do not remove the protected technology.

Chenco sought enforcement of paragraphs 414 and 417 of an ICC arbitration award requiring DO Fluoride Chemicals Co. Ltd to pay monthly liquidated damages and interest for continued use of Chenco’s aluminium-fluoride production technology. Earlier enforcement proceedings resulted in judgment for the period up to 23 April 2013 and directed a further trial concerning the period thereafter.

DFD contended that it had redesigned its fluid-bed reactors in 2013 and ceased using Chenco’s technology. It also challenged the court’s jurisdiction to decide whether the technology continued to be used. The issues were whether the alleged redesign occurred, whether it removed the protected technology, and whether the court could determine those matters in the enforcement proceedings.

1. Jurisdiction. The court had jurisdiction under Arbitration Act 1996, section 101, to determine whether a post-award condition affecting enforcement had occurred. The agreed order directed a further Commercial Court trial on the extent to which sums were owed after 23 April 2013, including expert evidence on when DFD ceased using Chenco’s technology. The court adopted the reasoning in A v B [2020] EWHC 2790 (Comm) concerning enforcement of awards affected by subsequent events. That jurisdiction existed independently of DFD’s consent.
2. Findings on the alleged redesign. Applying the approach in Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1, and the guidance concerning contemporary documents in Simetra Global Assets Ltd v Ikon Finance Ltd [2019] EWCA Civ 1413, the court rejected DFD’s evidence. The contemporaneous minutes and project proposal described maintenance and replacement work, not a substantial redesign. Important drawings, contracts and supporting records were absent. The metadata and other features of the reactor drawing indicated that it had been created in 2020, not 2013.
3. Scope of the protected technology. The tribunal’s findings concerned the central or core section of the production process, including the reactor and surrounding process features. DFD could not avoid liability by alleging a change to only the reactor, while leaving the surrounding process materially unchanged. Nor could it reopen the tribunal’s determination that the relevant technical information was not in the public domain.
4. Alternative ground. Even if the alleged reactor changes had occurred, they were marginal and incremental. They were insufficient to remove Chenco’s technology.
5. Disposition. Chenco was entitled to enforce paragraphs 414 and 417 of the award for the relevant period. Judgment was entered for €4,000,000 together with interest awarded by the tribunal.

The judgment records earlier Commercial Court enforcement proceedings before Moulder J and Sir Michael Burton. No appeal was brought from Sir Michael Burton’s order. The present judgment determined the further trial directed by that order.