Key takeaways
Corporate name changes can trigger legal disputes
Restructuring or renaming may complicate arbitration rights and enforcement.
Court upholds tribunal’s interpretation of party identity
English courts confirm deference to arbitral tribunals on claimant status.
Accurate contract details prevent costly challenges
Businesses should verify entity names to avoid jurisdictional uncertainty.
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.
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.
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.
The supply agreement incorporated an ICC arbitration clause and both the supply agreement and the arbitration clause were governed by English law.
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.
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.
In June 2019:
The Spin Off was publicly registered in Korea and details were publicly available,
The Original HHI Signatory was renamed “Korea Shipbuilding and Offshore Engineering Ltd”, and
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.
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.
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.
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.
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.
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.
Challenges to the award
Energyen argued that the tribunal had no jurisdiction to make an award in favour of the HHI 2019 Company because:
it was the Original HHI Signatory which was and remained party to the supply contract and the arbitration agreement;
it was the Original HHI Signatory which commenced the arbitral reference;
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.
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 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 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.
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.
As a result, the Court dismissed the argument that there was no valid arbitration agreement between Energyen and the HHI 2019 Company.
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.
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:
The rights being asserted in the RFA were those of the HHI 2019 Company;
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;
The RFA was issued in the name of the HHI 2019 Company and gave its address, not that of the Original HHI Signatory;
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;
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;
Energyen was aware of the Spin Off, having been given adequate notice of it at the relevant time; and
The Terms of Reference gave the name and address of the HHI 2019 Company as those of the arbitral claimant.
These findings were sufficient to dispose of both the jurisdictional challenge and the serious irregularity allegations.
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 information to be provided in a RFA.
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.
In this case, the Court was satisfied that:
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).
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.
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.
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.
In conclusion, the challenges to the award were dismissed.
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.
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 only one appeal on the ground of lack of jurisdiction was successful and none of the appeals on the ground of serious irregularity had been upheld.
