Energyen Corporation v HD Hyundai Heavy Industries Co Ltd & Anor

A statutory corporate succession governed by the law of the company’s domicile may transfer contractual and arbitration rights without operating as an assignment requiring consent. The identity of an arbitral claimant is determined objectively by asking who the respondent would reasonably understand to be bringing the claim, having regard to the claimant’s contractual rights and the initiating documents. ICC requirements for a request for arbitration are generally broad and non-technical. They do not ordinarily impose jurisdictional requirements to plead every fact establishing title or to provide every document relevant to that title. The matter referred to arbitration is identified broadly, so a claim under a contract ordinarily includes an issue concerning the claimant’s succession to rights under that contract. A procedural notice requirement may arise after succession during an existing arbitration, but it is not generally required before commencement where succession occurred earlier.

Energyen challenged an ICC award under sections 67 and 68 of the Arbitration Act 1996. The award ordered Energyen to pay damages to HD Hyundai Heavy Industries Co Ltd, the company created in a 2019 Korean statutory spin-off.

Energyen argued that the original Korean contracting company remained party to the supply contract and arbitration agreement, that the arbitration had been commenced by that company, and that the new company had failed to give sufficient notice or identify the legal basis of its succession. The court determined the effect of the spin-off under Korean law, the identity of the arbitral claimant, the requirements for commencing an ICC arbitration, and the consequences of any failure to give notice.

The challenges were dismissed.

1. Effect of the spin-off. The effect of a foreign company’s statutory succession on an English-law contract is determined by the law of the company’s domicile. A partial statutory succession may be treated like universal succession for conflicts purposes where the successor assumes the relevant business, rights, liabilities and contractual relationships. Under Korean law, the 2019 spin-off transferred the relevant offshore plant division, including the supply contract, to the new company.
2. Identity of the claimant. The question is objective: who would reasonably have been understood by the party against whom the claim was asserted to be bringing it? The Request for Arbitration named the new company, gave its address, and asserted rights which had transferred to it. References to the original signatory and its 1972 establishment did not alter that conclusion. The request was therefore a misdescription of an attribute, not commencement by the wrong legal entity.
3. The Terms of Reference did not change the position. They identified the new company by its current name and address, recorded its nomination of an arbitrator, incorporated the Request for Arbitration, and concerned rights under a contract to which the new company was party.
4. ICC Request for Arbitration. Article 4(3) of the ICC Rules adopts a broad and flexible approach. Article 4(3)(c) required a description of the basis of the claim, not a technical pleading of every fact necessary to establish title under English law. A claim for breach of the supply contract was sufficient. Article 4(3)(e) did not require identification of every document relevant to the claimant’s title, and the spin-off plan was a unilateral statutory act rather than an agreement.
5. The matter submitted to arbitration was the new company’s claim for relief arising from breach of the supply contract. That necessarily included any issue concerning its entitlement to enforce the contract. No separate reference was required.
6. Any procedural notice requirement concerning succession during an existing arbitration was not jurisdictional. It did not apply before commencement where the succession had occurred years earlier and the arbitration and tribunal contracts were always those of the successor. The contingent section 73 issues were left undecided.